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Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 85401-02 June 4, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSALINDA RAMOS y DAVID, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romeo C. Alinea for defendant-appellant.

GUTIERREZ, JR., J.:


Appellant Rosalinda Ramos seeks the reversal of the decisions of the Regional Trial Court, Branch
73, Third Judicial Region at Olongapo City, finding her guilty beyond reasonable doubt in Criminal
Case No. 5990 for violating Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972 as
amended) and in Criminal Case No. 5991 for violating Section 4 of the same Act and sentencing her
to:
1) Imprisonment of six (6) years and one (1) day and a fine of P6,000.00 in Criminal
Case No. 5990; and
2) Life imprisonment and a fine of P20,000.00 in Criminal Case No. 5991.
The two informations filed against the appellant respectively alleged:
Criminal Case No. 5990
That on or about the 29th day of November, 1982 in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused without being lawfully authorized, did then and there wilfully, unlawfully and
knowingly have in his/her/their person, possession and control twenty (20) sticks of
marijuana cigarettes.
Criminal Case No. 5991
That on or about the 29th day of November, 1982 in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, without being lawfully authorized, did then and there wilfully, unlawfully and

knowingly engage in selling, delivering, giving away to another and distributing four
(4) sticks of marijuana cigarettes which is/are prohibited drug(s). (Rollo, p. 68)
The prosecution's version of the facts, as summarized by the Solicitor-General, is as follows:
On November 29,1982, at around 7:00 o'clock in the evening, a civilian informer
came to the Narcotics Command Office in Olongapo City and reported that a
cigarette vendor by the name of 'Mama Rose' was selling marijuana at the comer of
3rd Street and Rizal Avenue in Olongapo City (TSN, pp. 4-5, 13, May 4, 1984; pp. 34, 11, April 9, 1986). Captain Castillo instructed the informant to conduct a test buy.
He gave to the informant two (2) five-peso bills, noting first the serial numbers in his
pocket note (TSN, pp. 5,14-15, May 4, 1984; p. 4, April 9, 1986). The informer left
and after thirty (30) minutes came back and gave to Captain Castillo two (2) sticks of
marijuana cigarettes (Exhibit 'C-2') which he bought from appellant. Captain Castillo
again instructed the informer to make another test buy from the suspect. From his
wallet, Captain Castillo extracted another two (2) five-peso bills and before handing
the same to the informer, recorded the serial numbers in his pocket note (TSN, pp.
19-21, May 4, 1984).
A team composed of Captain Castillo, Sgt. Tahil Ahamad, CIC Danilo Santiago and
Angel Sudiacal left with the informer. The informer proceeded to where appellant was
selling cigarettes to conduct the next test buy while the NARCOM agents waited at
the Black and White Open Bar located at 7th Street, Rizal Avenue, Olongapo City
(TSN, pp. 6-7, April 9, 1986). The bar was about three (3) blocks away from the place
where appellant was selling cigarettes (TSN, pp. 19, 8, Id.). After forty-five (45)
minutes more or less, the informer arrived at the Black and White Bar and again
gave to Captain Castillo two (2) sticks of marijuana (Exhibit 'C-l'; TSN, p. 23, May 4,
1984; p. 6, April 9,1986).
The team then proceeded to the place where appellant was selling cigarettes. After
Identifying themselves as NARCOM agents, Capt. Castillo told appellant that she
was being placed under arrest for illegal peddling of marijuana. Appellant was
requested to take out the contents of her wallet (TSN, pp. 6-7, April 9, 1986, The four
marked five- peso bills were found among her possessions and were confiscated
after the serial numbers were confirmed by Captain Castillo from his record (TSN,
pp. 23-25, May 4, 1984). The initial of Sgt. Tahil Ahamad was also found from the
confiscated five- peso bills (TSN, p. 9, April 9, 1986). Sgt. Ahamad searched the stall
of appellant and found twenty (20) sticks of marijuana cigarettes in a trash can
placed under the small table where appellant displayed the wares she was selling
(TSN, p. 7, April 9, 1986). Appellant was thereafter brought to the station (TSN, p. 23,
May 4, 1984).
At the station, appellant executed a statement confessing to her crimes which she
swore to before Assistant City Fiscal Domingo Cabali, Jr. (TSN, pp. 5-6. June
20,1984; Exhibit 'G').
The marijuana sticks confiscated were sent to the Philippine Constabulary Crime
Laboratory (PCCL) for analysis. These were confirmed to be marijuana as evidenced

by the Chemistry Report No. MD-363-82 of Marlene Salangad, a Forensic Chemist of


the PCCL (See Exhibit 'B'; TSN, p. 3, Jan. 13, 1986). (Rollo, pp. 92-94)
On the other hand, the version of the appellant as summarized by the trial court, is as follows:
... [O]n November 29, 1982, between 9:00 and 10:00 o'clock in the evening she was
at the corner of 3rd St., and Rizal Avenue, West Tapinac, Olongapo City, selling
cigarettes and fruits; that she does not have any table, all she had was a small
wooden 'papag' to show her wares and sell them; that she was sitting on the small
'papag' when Capt. Castillo came and introduced himself followed by three or four
others who were more or less 6 to 8 meters away. She was surprised why they were
there, and that she was invited by Capt. Castillo to the NARCOM office for
investigation to which invitation she said 'yes' after which she was taken to the
NARCOM office. Before she was taken thereto, the other men searched the buri
bags where she used to place her fruits (records does (sic) not show what fruits she
was selling) and also her small cigarettes (sic) stand; that they did not find anything
under the 'papag; that when she was ordered to board the car, Castillo told her
'sakay na ho, Mama Rose' (please board now, Mama Rose'); that she was told to
bring along her cigarette stand; that inside her brown wallet, she has fifty (P 50.00)
pesos consisting of five pesos and ten pesos; that it was Sudiacal who took her
wallet and Sudiacal took five (5) peso bills and told her that four (4) five peso bills are
the same money which was used to buy marijuana from her; that she told the officer
that the money was hers as she has been saving some for the rentals. She claimed
that she affixed her signatures on the four (4) five peso bills because she was forced
by Tahil Ahamad by saying 'Mama Rose', you sign this, if you are not going to sign
this, something will happen to you, you will get hurt'; that because she is an old
woman, she got scared so she signed. When Tahil Ahamad told her to sign, Ahamad
was tailing to her in a normal manner and seated in front of her; that she cannot
remember having signed anything because she was nervous, Capt. Castillo
investigated her and thereafter was brought to the Fiscal's Office. She signed a
document at the Fiscal's Office; that she was asked if the contents of the document is
(sic) true to which she answered 'No, sir; that she was not assisted by a counsel
while being investigated. She also testified that she stayed at Narcom for five (5)
days; that Capt. Castillo alone investigated her for four (4) hours and that she
likewise was not assisted by counsel at the Fiscal's Office. She claimed that when
she was told by the Fiscal to just sign the document, Fiscal Cabali did not say
anything when she said that the contents of the document are not true. (Rollo, pp.
72)
Appellant raises the following assignment of errors:
I
THE FINDINGS OF FACTS ARE SO UNCLEAR AND DOUBTFUL, MAKING THE
CONCLUSIONS OF THE TRIAL COURT WITHOUT FACTUAL AND LEGAL LEG TO
STAND ON.
II

THE EVIDENCE OBTAINED AND THE PERSON ARRESTED WITHOUT THE


BENEFIT OF A WARRANT OF ARREST AND SEIZURE MAY NOT BE USED
AGAINST THE ACCUSED AND ANY CONVICTION FROM SUCH EVIDENCE IS
NOT VALID AND A GROUND FOR REVERSAL.
III
THE TRIAL COURT RELIED HEAVILY ON THE CONFESSION OF THE
APPELLANT AND THE CONFESSION WAS EXTRACTED IN VIOLATION OF
APPELLANT'S CONSTITUTIONAL RIGHTS 'TO REMAIN SILENT AND TO
COUNSEL'.
IV
WHEN NOT ALL THE ELEMENTS OF THE OFFENSE ARE PRESENT AND
PROVEN, CONVICTION IS NOT PROPER.
V
THE REQUISITES IN ORDER TO CONVICT ON CIRCUMSTANTIAL EVIDENCE
ARE NOT PRESENT AND NOT COMPLIED WITH. (Rollo, p. 59)
At the outset, it may be observed that two informations were filed against the appellant and the lower
court imposed two sentences on appellant, one for sale and the other for possession of marijuana.
This Court must emphasize that, assuming arguendo, the findings of guilt for both offenses are
correct, the trial judge nevertheless erred in imposing a separate sentence for possession because
possession of marijuana is inherent in the crime of selling them. (People v. de Jesus, 145 SCRA 521
[1986]; People v. Andiza, 164 SCRA 642 [1988])
After a careful scrutiny of the records, this Court holds that appellant's guilt in Criminal Case No.
5991 (sale of marijuana) has not been proven beyond reasonable doubt.
First, the extrajudicial confession extracted from the accused on November 29, 1982 is inadmissible
in evidence for being violative of the Constitutional mandate that any person under investigation for
the commission of an offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. (Art. III, Section 12(l),
Constitution)
The preliminary statement read to the appellant when her sworn statement was executed appears
as follows:
SALAYSAY NA KUSANG LOOB NA IBINIBIGAY NI ROSALINDA RAMOS Y DAVID
KAY CAPTAIN ARTURO M. CASTILLO PC SA HARAP NI SGT. TAHIL AHAMAD
DITO SA HIMPILAN NG CANU, OLONGAPO CITY, NGAYON 29 NG BUWAN NG
NOBYEMBRE 1982.
TAGASIYASAT: Gng. Rosalinda Ramos, ikaw ay nasa ilalim ng isang pagsisiyasat
ukol sa paglabag sa ipinagbabawal na gamot. Bago kita tanungin ay nais kong

malaman mo ang iyong mga karapatan sa ating bagong saligang batas at ito ay ang
mga sumusunod:
1 Ikaw ay may karapatan na huwag sumagot sa aking mga itatanong sa iyo sa
pagsisiyasat na ito,
2. Ikaw ay may karapatan na kumuha ng isang abogado upang makatulong sa iyo sa
pagsisiyasat na ito at
3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay maaaring gamitin laban or
pabor sa iyo saan mang hukuman dito sa ating bansa.
TANONG: Ngayon alam no na ang iyong mga karapatan sa ating bagong saligang
batas ikaw ba ay kusang loob na magbibigay ng isang salaysay na pawang
katotohanan at pawang katotohanan lamang sa pagsisiyasat na ito?;
SAGOT: Opo. (Exhibit G)
This Court finds that such recital of rights falls short of the requirement on proper apprisal of
constitutional rights. We quote the ruling in People v. Nicandro (141 SCRA 289 [1986]):
When the Constitution requires a person under investigation 'to be informed' of his
right to remain silent and to counsel, it must be presumed to contemplate the
transmission of meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it
would not be sufficient for a police officer just to repeat to the person under
investigation the provisions of Section 20, Article IV of the Constitution. He is not only
duty- bound to tell the person the rights to which the latter is entitled; he must also
explain their effects in practical terms, e.g., what the person under interrogation may
or may not do, and in a language the subject fairly understands. In other words, the
right of a person under interrogation 'to be informed implies a correlative obligation
on the part of the police investigator to explain, and contemplates an effective
communication that results in understanding what is conveyed. Short of this, there is
a denial of the right , as it cannot truly be said that the person has been 'informed' of
his rights. Now, since the right 'to be informed implies comprehension, the degree of
explanation required will necessary vary, depending upon the education, intelligence
and other relevant personal circumstances of the person under investigation. Suffice
it to say that a simpler and more lucid explanation is needed where the subject is
unlettered.
Although the right to counsel is a right that may be waived, such waiver must be voluntary, knowing
and intelligent (People v. Caguioa, 95 SCRA 2 [1980]).
To insure that a waiver is voluntary and intelligent, the Constitution now requires; that for the right to
counsel to be waived, the waiver must be in writing and in the presence of the counsel of the
accused. (Art. III, Section 12(l), Constitution) There is no such written waiver in this case, much less
was any waiver made in the presence of counsel.

Fiscal Cabali, who administered the oath on the appellant's extrajudicial confession, and the police
officers who took it down should know by now that the procedure they followed results in
incompetent evidence. If the purpose is to get proof which can stand up in court, they should follow
the requirements of the Constitution.
Second, the alleged poseur-buyer, who also happens to be the alleged informant, was never
presented during trial. The presence and Identity of the poseur-buyer is vital to the case as his very
existence is being disputed by the accused-appellant who denies having sold marijuana cigarettes to
anyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony of the poseur-buyer, there is no
convincing evidence pointing to the accused as having sold marijuana. (People v. Fernando, 145
SCRA 151 [1986]) In this case, the alleged informant and the alleged poseur-buyer are one and the
same person. We realize that narcotics agents often have to keep their Identities and those of their
informants confidential. For a prosecution involving the sale or distribution of drugs to prosper in this
particular case, however, the informant has to testify. The testimony of the poseur-buyer is rendered
compelling by the fact that the police officers were situated three blocks away from where the
alleged sale took place. They did not see the actual sale of marijuana. Thus, Sit. Sudiacal testified:
Q Before you arrested the accused, where did you position
yourselves?
A We were at the Black and White Open Bar, sir.
Q How far is that from the place where the accused was selling
cigarettes?
A It is about three blocks, sir.
Q You did not actually see the accused selling marijuana?
A Yes, Sir ...," (TSN, May 4, 1984, p. 8)
xxx xxx xxx
Q Did you actually see the buying of the marijuana?
A No, Mam.
Q So, you did not see anything?
A Yes, Mam.
Q None of the three of you, Sgt. Sudiacal and Captain Castillo
witnessed the actual buy of the three sticks of marijuana?
A Yes, Mam.
Q Your basis of the alleged buy by the informant is his word that he
bought it from the suspect?

A Yes, Mam. (TSN, April 9, 1986, pp. 125-126)


It is a known fact that drug dealings are hard to prove in court. Precisely because of this difficulty,
buy-bust operations have to be conducted and every effort is taken such that the suspected pusher
is caught in flagrante selling prohibited drugs. For the culprit to be convicted, the element of sale
must be unequivocally established. In this case, the alleged poseur-buyer who could have
categorically asserted that she bought marijuana from the appellant was not presented by the
prosecution. And Sgts. Ahamad and Sudiacal could not attest to the fact of sale because they were
three blocks away. The sale of marijuana was therefore not positively proven.
Despite the absence of the testimony of the poseur-buyer, the court a quo, however, relied on
circumstantial evidence in concluding that there was indeed a sale:
In this case, the accused admitted that she was the only one selling cigarettes at the
corner of 3rd Street; the informant told the NARCOM Officers that their 'suspect' is a
cigarette vendor positioned thereat. The two (2) 'test buy' yielded positive results as
the informant was able to buy four (4) handrolled sticks of marijuana cigarettes from
her, two at a time. The accused did not ask the reason why when she was invited for
investigation. This act negates innocence and against human nature, especially after
having introduced themselves as NARCOM agents. In her control and possession,
twenty (20) sticks of similar handrolled marijuana cigarettes were recovered from a
trash can under her small table. Her counsel on cross-examination asked Sgt. Tahil
Ahamad the following (TSN, April 9, 1986, p. 14) 'and in order to search that trash
can under the table, you have to ask or request 'Mama Rose' to get out of the way in
order to check the contents of the waste can?' The question was answered, 'We
asked permission from her to stand up so we can look into the contents of her small
table, sir.
When investigated, the accused gave her statement which in fact was a confession
where she admitted having sold marijuana cigarettes. She was taken before the
Fiscal to subscribe the same. While she alleged that she told the Fiscal (Fiscal
Cabali) that the contents of her statement are not true, why then did she sign it
before the said Fiscal? Why did she not insist that her denial be registered on the
document so as to repudiate it? Fear could not be a valid reason as she has already
boldly spoken out when she said the contents were not true. The 'marked money'
were recovered from her possession. She did not deny that the four (4) five peso bills
were taken from her wallet. She was addressed as 'Mama Rose' not once but twice
by the apprehending officers. Her counsel during the cross-examination of the
prosecution witnesses and direct examination of the accused called and addressed
her as 'Mama Rose', and the informant Identified her not only as Rosalinda Ramos
but also as 'Mama Rose'. (At pp. 73-74, Rollo)
This Court finds that the cited circumstantial evidence do not establish beyond reasonable doubt that
there was a sale of marijuana. Considering the severe penalty of reclusion perpetua imposed on
those who sell or distribute drugs, we have to insure that evidence of culpability must pass the test of
the strictest scrutiny. We also have to take into account the oftrepeated defense in violations of the
Dangerous Drugs Act that the drugs or the marked money were planted by police officers. More
direct and positive evidence is essential.

The failure of the appellant to ask why she was being invited for investigation by the NARCOM
officers does notipso facto indicate her guilt. Fear could have, prevented her from propounding
inquiries to the officers.
Nor does the fact that' marked money was found in her possession show incontrovertibly that she is
the seller of marijuana. The appellant is a cigarette vendor. By the nature of her job, there is a
constant exchange of goods for money. It may be far- fetched but it is possible that she came into
possession of the marked money because she accepted it in the course of legitimate sales of
cigarettes. Again, it is only the poseur-buyer who could testify that she gave marked money to the
appellant in exchange for marijuana sticks.
The fact that the appellant signed the extrajudicial confession despite her insistence that its contents
were not true does not necessarily signify guilt. As earlier stated the extra-judicial confession
cannot be accepted as evidence. It is useless for purpo1ses of proof of sale of prohibited
drugs.
Lastly, this Court fails to see how, from her being addressed as Mama Rose by the witnesses and
appellant's counsel and the alleged informant poseur-buyer, the sale of marijuana can be inferred.
Rule 133, Section 6 of the Rules of Court provides:
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inference are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction
beyond a reasonable doubt.
For not successfully meeting the above requirements, the enumerated circumstantial evidence
cannot be a ground for conviction for the sale of marijuana.
With respect to Criminal Case No., 5990, however, this Court upholds the lower court's finding that
the appellant is guilty of possession of marijuana.
Rule 113 Section 6 (b) of the 1985 Rules of Criminal Procedure provides:
SEC. 6. Arrest without warrant. when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it.
Meanwhile, Section 12 of Rule 126 states:

SEC. 12. Search incident to a lawful arrest. A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
Sgts. Sudiacal and Ahamad testified that there was an informant who apprised them of the presence
of a drug pusher at the comer of 3rd Street and Rizal Avenue, Olongapo City. Acting on such
information and in their presence, their superior, Captain Castillo, gave the informant marked money
to buy marijuana. The informant, now turned poseur-buyer, returned with two sticks of marijuana.
Captain Castillo again gave said informant marked money to purchase :marijuana. The informantposeur buyer thereafter returned with another two sticks of marijuana. The police officers then
proceeded to the corner of 3rd Street and Rizal Avenue and effected the arrest of appellant.
From the above facts, it may be concluded that the arresting police officers had personal knowledge
of facts implicating the appellant with the sale of marijuana to the informant-poseur buyer. We hold
therefore that the arrest was legal and the consequent search which yielded 20 sticks of marijuana
was lawful for being incident to a valid arrest.
The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does not
undermine the legality of the appellant's arrest.
It is not necessary that the crime should have been established as a fact in order to regard the
detention as legal. The legality of detention does not depend upon the actual commission of the
crime, but upon the nature of the deed when such characterization may reasonably be inferred by
the officer or functionary to who in the law at the moment leaves the decision for the urgent purpose
of suspending the liberty of the citizen (People v. Molleda, 86 SCRA 667 [1978]).
The obligation to make an arrest by reason of a crime does not presuppose as a necessary requisite
for the fulfillment thereof the indubitable existence of a crime (People v. Ancheta, 68 Phil. 415
[1939]).
The appellant argues that if the twenty sticks of marijuana were in a trash can and it was not shown
by clear and convincing evidence that the said trash can belongs to the appellant, then she cannot
be considered as being in possession of marijuana.
In disposing of this contention, this Court quotes with approval the following arguments of the
Solicitor-General:
Appellant's defense falls against the categorical testimony of the NARCOM agents
that the trash can was found under the table where her legitimate wares were being
sold. This fact was not denied by appellant. Therefore, she was the only person who
had access to the trash can. The same was under her immediate physical control.
She had complete charge of the contents of the trash can under the table to the
exclusion of all other persons. In law, actual possession exists when the thing is in
the immediate occupancy and control of the party. But this is not to say that the law
requires actual possession. In criminal law, possession necessary for conviction of
the offense of possession of controlled substances with intent to distribute may be
constructive as well as actual (Black's Law Dictionary, Abridge, 5th Edition, pp. 606607). It is only necessary that the defendant must have dominion and control over
the contraband. These requirements are present in the situation described, where

the prohibited drugs were found inside the trash can placed under the stall owned by
appellant. In fact, the NARCOM agents who conducted the search testified that they
had to ask appellant to stand so that they could look inside the trash can under the
'papag' of the appellant. Hence the trash can was positioned in such a way that it
was difficult for another person to use the trash can. The trash can was obviously not
for use by her customers.
Appellant's arguments are inherently weak and improbable and cannot stand against
the clear evidence pointing to her actual possession of the prohibited drug. The raw
facts testified to by the NARCOM agents were corroborated by appellant and their
conclusion-that she had possession of the marijuana sticks found in the trash can- is
consistent with law and reason.
Appellant further contends that it is hard to believe that she would keep the
marijuana sticks in a trash can since it is a precious commodity to pushers and users
thereof.
The above argument is misleading. The value of the marijuana is not the primary
consideration in the concealment of the contraband. The primary consideration is
escaping detection and arrest. Obviously, the modus operandi was to dissimulate the
act of selling and possession of marijuana sticks which carries the capital penalty
(sic). Appellant could not display it among her regular wares of cigarettes and fruits
for sale. She had to hide them from public view, but near enough to have access to
them. The trash can, to her thinking, would be the last place to look for the precious
commodity. Unfortunately, she was found out. The argument that it was an 'unlikely
place' to hide the precious contraband is in fact the very consideration in choosing it
as the hiding place for the contraband. (At pp. 97-100, Rollo)
We rule, therefore, that the twenty sticks of marijuana are admissible in evidence and the trial court's
finding that the appellant is guilty of possession is correct.
The lower court, however, erred in imposing a fixed penalty of six (6) years and one (1) day for
possession of marijuana. Section 1 of the Indeterminate Sentence Law (Republic Act 4103 as
amended) provides that in imposing a prison sentence for an offense punished by a law other than
the Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum which
shall not be less than the minimum term prescribed by the same. The penalty prescribed by the
Dangerous Drugs Act for possession of marijuana is imprisonment ranging from six (6) years and
one (1) day to twelve (12) years and a fine ranging from P6,000 to P12,000.
WHEREFORE, the appealed decision in Criminal Case No. 5990 is AFFIRMED but MODIFIED. The
appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1)
day to nine (9) years and to pay a fine of six thousand (P 6,000) pesos. The appealed decision in
Criminal Case No. 5991 is REVERSED and SET ASIDE and the appellant is acquitted on grounds of
reasonable doubt.
SO ORDERED.

G.R. No. L-51770 March 20, 1985


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO GALIT, defendant-appellant.

CONCEPCION, JR., J:
1. The prisoner was arrested for killing the victim on the occasion of a robbery. He had been
detained and interrogated almost continuously for five days, to no avail. He consistently maintained
his innocence. There was no evidence to link him to the crime. Obviously, something drastic had to
be done. A confession was absolutely necessary. So the investigating officers began to maul him
and to torture him physically. Still the prisoner insisted on his innocence. His will had to be broken. A
confession must be obtained. So they continued to maltreat and beat him. 'They covered his face
with a rag and pushed his face into a toilet bowl full of human waste. The prisoner could not take any
more. His body could no longer endure the pain inflicted on him and the indignities he had to suffer.
His will had been broken. He admitted what the investigating officers wanted him to admit and he
signed the confession they prepared. Later, against his will, he posed for pictures as directed by his
investigators, purporting it to be a reenactment.

2. This incident could have happened in a Russian gulag or in Hitler's Germany. But no it did not. It
happened in the Philippines. In this case before Us.
3. The Revised Penal Code punishes the maltreatment of prisoners as follows:
ART. 235. Maltreatment of prisoners. The penalty of arresto mayor in its medium
period to prision correccional in its minimum period, in addition to his liability for the
physical injuries or damage caused, shall be imposed upon any public officer or
employee who shall over do himself in the correction or handling of a prisoner or
detention prisoner under his charge, by the imposition of punishments in a cruel and
humiliating manner.
If the purpose of the maltreatment is to extort a confession, or to obtain some
information from the prisoner, the offender shall be punished by prision
correccional in its minimum period, temporary special disqualification and a fine not
exceeding 500 pesos, in addition to his liability for the physical injuries or damage
caused.
4. This Court in a long line of decisions over the years, the latest being the case of People vs.
Cabrera, 1 has consistently and strongly condemned the practice of maltreating prisoners to extort
confessions from them as a grave and unforgivable violation of human rights. But the practice persists.
Fortunately, such instances constitute the exception rather than the general rule.
5. Before Us for mandatory review is the death sentence imposed upon the accused Francisco Galit
by the Circuit Criminal Court of Pasig, Rizal, in Crim. Case No. CCC-VII-2589 of said court.
6. The record shows that in the morning of August 23, 1977, Mrs. Natividad Fernando, a widow, was
found dead in the bedroom of her house located at Barrio Geronimo, Montalban, Rizal, as a result of
seven (7) wounds inflicted upon different parts of her body by a blunt instrument. 2 More than two
weeks thereafter, police authorities of Montalban picked up the herein accused, Francisco Galit, an
ordinary construction worker (pion) living in Marikina, Rizal, on suspicion of the murder. On the following
day, however, September 8, 1977, the case was referred to the National Bureau of Investigation (NBI) for
further investigation in view of the alleged limited facilities of the Montalban police station. Accordingly, the
herein accused was brought to the NBI where he was investigated by a team headed by NBI Agent
Carlos Flores. 3 NBI Agent Flores conducted a preliminary interview of the suspect who allegedly gave
evasive answers to his questions. 4 But the following day, September 9, 1977, Francisco Galit voluntarily
executed a Salaysay admitting participation in the commission of the crime. He implicated Juling Dulay
and Pabling Dulay as his companions in the crime.5 As a result, he was charged with the crime of
Robbery with Homicide, in an information filed before the Circuit Criminal Court of Pasig, Rizal, committed
as follows:
That on or about the 23rd day of August 1977 in the municipality of Montalban,
province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together with Juling Doe and
Pabling Doe, whose true Identities and present whereabouts are still unknown and
three of them mutually helping and aiding one another, with intent of gain and by
means of force, intimidation and violence upon the person of one Natividad Fernando
while in her dwelling, did, then and there wilfully, unlawfully, and feloniously take,
steal and carry away from the person of said Natividad Fernando, cash money of an
undetermined amount, belonging to said Natividad Fernando, thereby causing
damage and prejudice to the latter in an undetermined amount; that by reason or on
the occasion of said robbery, and for purpose of enabling them (accused) to take,
steal and carry away the said cash money in pursuance of their conspiracy and for

the purpose of insuring the success of their criminal act, with intent to kill, did, then
and there wilfully, unlawfully, and feloniously attack, assault and stab with a dagger
said Natividad Fernando on the different parts of her body, thereby inflicting multiple
injuries on the head and extremities, which directly caused her death, and the total
amount of the loss is P10,000.00 including valuables and cash.
Trial was held, and on August 11, 1978, immediately after the accused had terminated the
presentation of his evidence, the trial judge dictated his decision on the case in open court, finding
the accused guilty as charged and sentencing him to suffer the death penalty; to indemnify the heirs
of the victim in the sum of P110,000.00, and to pay the costs. Hence, the present recourse.
7. The incriminatory facts of the case, as found by the trial court, are as follows:
From the evidence adduced in this case, it was gathered that in the early morning of
August 23, 1977, a 70-year old woman named Natividad Fernando, widow, in the
twilight of her life, was robbed and then hacked to death by the accused and two
others in her (victim's) own residence at Montalban, Rizal.
Prosecution witness Florentino Valentino testified that he heard accused Francisco
Galit and his wife having an argument in connection with the robbery and killing of
the victim, Natividad Fernando. It appears that on August 18, 1977, accused Galit
and two others, namely, Juling Dulay and a certain "Pabling" accidentally met each
other at Marikina, Rizal, and in their conversation, the three agreed to rob Natividad
Fernando; that it was further agreed among them to enter the premises of the
victim's house at the back yard by climbing over the fence; that once inside the
premises, they will search every room, especially the aparador and filing cabinets,
with the sole aim of looking for cash money and other valuables.
Witness Valentino further testified that on August 22, 1977, at around 6:00 o'clock in
the afternoon, accused Francisco Galit and his two companions, Juling Dulay and
Pabling, as per their previous agreement, met at the place where they formerly saw
each other in Mariquina, Rizal; that the three conspirators took a jeepney for
Montalban and upon passing the Montalban Municipal Building, they stopped and
they waited at the side of the road until the hour of midnight; that at about 12:00
o'clock that night, the three repaired to the premises of the victim, Natividad
Fernando; that they entered the said premises through the back wall of the house;
that while entering the premises of said house, Juling Dulay saw a bolo, lying near
the piggery compound, which he picked up and used it to destroy the back portion of
the wall of the house; that it was Juling Dulay who first entered the house through the
hole that they made, followed by the accused Galit and next to him was "Pabling",
that it was already early dawn of August 23, 1977 when the three were able to gain
entrance into the house of the victim; as the three could not find anything valuable
inside the first room that they entered, Juling Dulay destroyed the screen of the door
of the victim, Natividad Fernando; that upon entering the room of the victim, the three
accused decided to kill first the victim, Natividad Fernando, before searching the
room for valuables; that Juling Dulay, who was then holding the bolo, began hacking
the victim, who was then sleeping, and accused Galit heard a moaning sound from
the victim; that after the victim was killed, the three accused began searching the
room for valuables; that they helped each other in opening the iron cabinet inside the
room of the victim, where they found some money; that when the three accused left
the room of the victim, they brought with them some papers and pictures which they
threw outside; that after killing and robbing the victim, the three accused went out of

the premises of the house, using the same way by which they gained entrance,
which was through the back portion of the wall; that the three accused walked
towards the river bank where they divided the loot that they got from the room of the
victim; that their respective shares amount to P70.00 for each of them; and that after
receiving their shares of the loot, the three accused left and went home.
When witness Florentino Valentino was in his room, which was adjoining that of
accused Francisco Galit, he overheard accused Galit and his wife quarreling about
the intention of accused Galit to leave their residence immediately; that he further
stated that he overheard accused Galit saying that he and his other two companions
robbed and killed Natividad Fernando.
As a result of the killing, the victim, Natividad Fernando, suffered no less than seven
stab wounds. There was massive cerebral hemorrhage and the cause of death was
due to shock and hemorrhage, as evidenced by the Medico-Legal Necropsy Report
(Exhs. 'C' and 'C-2'), and the pictures taken of the deceased victim (Exhs. 'E', 'E-1'
and 'E-2').
8. The accused, upon the other hand, denied participation in the commission of the crime. He
claimed that he was in his house in Marikina, Rizal, when the crime was committed in Montalban,
Rizal. He also assailed the admissibility of the extra-judicial confession extracted from him through
torture, force and intimidation as described earlier, and without the benefit of counsel.
9. After a review of the records, We find that the evidence presented by the prosecution does not
support a conviction. In fact, the findings of the trial court relative to the acts attributed to the
accused are not supported by competent evidence. The principal prosecution witness, Florentino
Valentino merely testified that he and the accused were living together in one house in Marikina,
Rizal, on August 23, 1977, because the mother of his wife is the wife of the accused; that when he
returned home at about 4:00 o'clock in the morning from the police station of Marikina, Rizal, the
accused and his wife were quarreling (nagtatalo); that he heard that the accused was leaving the
house because he and his companions had robbed "Aling Nene", the owner of a poultry farm and
piggery in Montalban, Rizal; that the wife of the accused was imploring him not to leave, but the
latter was insistent; that he saw the accused carrying a bag containing about two handfuls (dakot) of
coins which he had taken from Aling Nene; that upon learning of what the accused had done, he
went to the Montalban police the next day and reported to the police chief about what he had heard;
and that a week later, Montalban policemen went to their house and arrested the accused. 6
10. This Court, in the case of Morales vs. Ponce Enrile, 7 laid down the correct procedure for peace
officers to follow when making an arrest and in conducting a custodial investigation, and which We
reiterate:
7. At the time a person is arrested, it shall be the duty of the arresting officer to inform
him of the reason for the arrest and he must be shown the warrant of arrest, if any.
He shall be informed of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him. The person arrested
shall have the right to communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means by telephone if possible or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it be in the
presence of counsel engaged by the person arrested, by any person on his behalf, or
appointed by the court upon petition either of the detainee himself or by anyone on
his behalf. The right to counsel may be waived but the waiver shall not be valid

unless made with the assistance of counsel. Any statement obtained in violation of
the procedure herein laid down, whether exculpatory or inculpatory, in whole or in
part, shall be inadmissible in evidence.
11. There were no eyewitnesses, no property recovered from the accused, no state witnesses, and
not even fingerprints of the accused at the scene of the crime. The only evidence against the
accused is his alleged confession. It behooves Us therefore to give it a close scrutiny. The statement
begins as follows:

I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mga karapatan sa ilalim ng SaligangBatas ng Pilipinas na kung inyong nanaisin ay maaaring hindi kayo magbigay ng isang
salaysay, na hindi rin kayo maaaring pilitin o saktan at pangakuan upang magbigay ng
naturang salaysay, na anuman ang inyong sasabihin sa pagsisiyasat na ito ay maaaring
laban sa inyo sa anumang usapin na maaaring ilahad sa anumang hukuman o tribunal dito
sa Pilipinas, na sa pagsisiyasat na ito ay maaaring katulungin mo ang isang manananggol at
kung sakaling hindi mo kayang bayaran ang isang manananggol ay maaaring bigyan ka ng
isa ng NBI. Ngayon at alam mo na ang mga ito nakahanda ka bang magbigay ng isang
kusang-loob na salaysay sa pagtatanong na ito?

SAGOT: Opo.
12. Such a long question followed by a monosyllabic answer does not satisfy the requirements of the
law that the accused be informed of his rights under the Constitution and our laws. Instead there
should be several short and clear questions and every right explained in simple words in a dialect or
language known to the person under investigation. Accused is from Samar and there is no showing
that he understands Tagalog. Moreover, at the time of his arrest, accused was not permitted to
communicate with his lawyer, a relative, or a friend. In fact, his sisters and other relatives did not
know that he had been brought to the NBI for investigation and it was only about two weeks after he
had executed the salaysay that his relatives were allowed to visit him. His statement does not even
contain any waiver of right to counsel and yet during the investigation he was not assisted by one. At
the supposed reenactment, again accused was not assisted by counsel of his choice. These
constitute gross violations of his rights.
13. The alleged confession and the pictures of the supposed re-enactment are inadmissible as
evidence because they were obtained in a manner contrary to law.
14. Trial courts are cautioned to look carefully into the circumstances surrounding the taking of any
confession, especially where the prisoner claims having been maltreated into giving one. Where
there is any doubt as to its voluntariness, the same must be rejected in toto.
15. Let a copy of this decision be furnished the Minister of Justice for whatever action he may deem
proper to take against the investigating officers.
16. WHEREFORE, the judgment appealed from should be, as it is hereby, SET ASIDE, and another
one entered ACQUITTING the accused Francisco Galit of the crime charged. Let him be released
from custody immediately unless held on other charges. With costs de oficio.
17. SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-46956 May 7, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO DECIERDO, defendant-appellant.

SARMIENTO, J.:
On September 29, 1971, Pantaleon C. Tauto-An, a sanitary inspector assigned to Tambulig,
Zamboanga del Sur, was summoned to Ba1rrio Ebarle to examine the mortal remains of
Emilio Montillano, a former Ebarle barrio captain. 1 From his findings, the deceased suffered three gunshot
wounds located at the "left side nipple level" 2 through which two pellets of "shotgun shells" 3 entered, exiting
"at the right portion of the back." 4 He established the date of death on September 28, 1971 and
the time thereof at or about 3:00 a.m. 5 Further according to him, he found Montillano lying "at the
stairs of his residence" 6 at the time he examined his body. 7
Except for the killer himself, the shooting was observed by no eyewitness.

On the same date, September 29, 1971, Ernesto Cortes, desk sergeant of the Tambulig police,
commenced Criminal Case No. 629 in the Municipal Court of Tambulig against one Felipe Cedilla for
preliminary investigation.9 On the same date, Judge Gualberto Bacarro, Sr. of the Tambulig Municipal
Court issued a warrant of arrest against Cedilla.
Finding a prima facie case against Cedilla, Judge Bacarro, on March 18, 1972, issued an order
forwarding the case to the then Court of First Instance of Zamboanga del Sur for trial. 10 The case was
docketed as Criminal Case No. 905 of the Zamboanga del Sur Court of First Instance. The charge: murder of Emilio Montillano. 11

Cedilla was duly arraigned, after which the government presented its evidence.
Meanwhile, on January 11, 1973, Rufino Fernandez, Chief of Police of Tambulig, on the strength of a
statement given by Adelita Decierdo 12 pointing to Pedro Decierdo, Adelita's husband, and Regino Duhay lungsod as
Montillano's killers, filed a complaint against Decierdo and Duhay lungsod. 13 Judge Bacarro, who conducted the preliminary examination,
issued a warrant for the arrest of both Decierdo and Duhay lungsod on January 15, 1973.

Decierdo was apprehended in his residence at Matingon, about 30 kilometers from Tambulig,

14 on
May 23 or 24, 1973,15 by Patrolman Alfredo Bopadora of the Tambulig police. was brought to the Tambulig municipal building on May 25,
1973, where he supposedly executed a written confession 16 admitting responsibility for the shooting of Montillano on September 27, 1971.
He likewise allegedly fingered Duhay lungood as the mastermind. It was a confession Decierdo was, , supposed to have reiterated before
Baldomero Fernandez, Assistant Provincial Fiscal of Zamboanga del Sur, 17 who investigated Criminal Case No. 905.

On June 27, 1973, Angel Babiera, Zamboanga del Sur Provincial FiscaL filed an Information against
Decierdo and Duhay lungsod for murder. Based, however, on Decierdo's alleged revelations, he, on
October 12, 1973, filed an Amended Information, that reads in part.
xxx xxx xxx
That on September 27, 1971, in barrio Ebarle, municipality of Tambulig, Province of
Zamboanga del Sur, Republic of the Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, armed with a homemade shotgun and a
hunting knife with evident premeditation and in consideration of a price or reward in
the amount of P1,000.00 and intent to kill conspiring, confederating and helping one
another, did, then and there wilfully, feloniously and treacherously shoot one EMILIO
MONTILLANO hitting and wounding the vital part of his body which caused his death
shortly thereafter.
CONTRARY TO LAW.

xxx xxx xxx


The case was docketed as Criminal Case No. 1308 of the Zamboanga del Sur Court of First
Instance.
On June 15, 1973, Fiscal Fernandez, in view of the alleged confession in question, moved to dismiss
Criminal Case No. 905. 18 Acting on such motion to dismiss, the Honorable Asaali Isnani, presiding Judge of the Zamboanga del
Sur Court of First Instance, issued, on the same date, an order dismissing death shortly thereafter. the murder case against Felipe
Cedilla. 19

Both Decierdo and Duhay lungsod entered pleas of "not guilty. " Thereafter, the case was set for
trial.
On June 20, 1974, Judge Isnani issued an order acquitting Duhay lungsod for lack of evidence.
On October 9, 1974, Judge Isnani rendered the Decision;

21

20

the dispositive portion reads as follows:

xxx xxx xxx


WHEREFORE, appreciating the aggravating circumstances of treachery and that the
crime was committed in consideration of a price or reward, without having been offset by any mitigating circumstance, the Court hereby sentences the accused,
PEDRO DECIERDO alias Edoy to the supreme penalty of DEATH, with the
accessory penalties prescribed by law, to indemnify the heirs of the victim Emilio
Montillano in the sum of TWELVE THOUSAND (P12,000.00) PESOS, without
subsidiary imprisonment in case of insolvency and to pay one-half (1/2) costs.
xxx xxx xxx
The case is now before us on automatic review.
We reverse.
There is no doubt that the accused's alleged extrajudicial confession is in the nature of an
uncounselled confession and hence, inadmissible in evidence. Section 20 of Article IV of the 1973
Constitution applies. It provides:
Section 20. No person shall be compelled to be a witness against himself. Any
person under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force, violence,
threat, intimidation, or any other means which vitiates the free will shall be used
against him. Any confession obtained in violation of this section shall be inadmissible
in evidence.
That the aforequoted provision applies has been affirmed in a long line of decisions, 22 the confession
in question having been obtained during the effectivity of the 1973 Constitution, although the incumbent
Chief Justice of this Court insists that coerced confessions obtained either prior to or after the effectivity of
the 1973 Charter are equally inadmissible in evidence. 23

While the right to counsel is a right that may be waived, such waiver must be voluntary, knowing,
and intelligent .24 The waiver must furthermore be in the presence of the accused's lawyer. 25
In the case at bar, Pedro Decierdo was not assisted by a lawyer when he signed Exhibits "A"-"A-25",
his supposed confession. Judge Bacarro himself so admitted. On cross-examination, he testified:
xxx xxx xxx
Atty. Cimafranca, P.:
xxx xxx xxx
Q. Now, but in your investigation, did I heard it right that you advise
him that he is entitled to a lawyer?
A. I asked him orally.
Atty. Cimafranca, P.:
(Continuing)
Q. But nevertheless he was not assisted by any lawyer?
A. Because there was no lawyer in Tambulig.
Q. You did not even assign a lawyer to assist him this is for the
purpose of investigation?
A. As I said there is no lawyer on record in Tambulig. 26
xxx xxx xxx
That fact alone (absence of counsel) nullifies the confession.
Indeed, the questioning should have ceased at that precise point, since the government itself was
not prepared to provide Decierdo with the services of a lawyer, had Decierdo requested for one. In
that event, Decierdo's right to counsel would have been an illusion even if he had been in fact
advised of such right.
Furthermore, there is no showing that the accused in fact waived his constitutional rights when he
executed, or more precisely, was made to execute, Exhibits "A"-"A-25". The exhibits in question
simply declare:
xxx xxx xxx
The affiant and accused in Criminal Case No. 699, for MURDER was appraised of
his Constitutional Rights under the Republic of the Philippines and the nature of this
investigation regarding self-incrimination, taken in QUESTION and ANSWER IN THE

ENGLISH LANGUAGE translated into the CEBUANO DIALECT of which he


understands and testified as follows:
1. QUESTION: Did you now understand your Constitutional Rights
and the nature of the investigation, which has been explained to you?
ANSWER: Yes, sir.
xxx xxx xxx
In People v. Pascual, 27 as well as People v. Broqueza, 28 we held that the waiver must rest on clear
evidence, otherwise, the alleged waiver is void. The records are indeed unclear whether or not Decierdo
in fact declined or spurned Judge Bacarro's offer of a lawyer. The judge thus testified:
xxx xxx xxx
COURT:
TO WITNESS:
Q When you told the accused under the constitution he is entitled to a
lawyer, what was his answer?
A I cannot remember what was his answer, Your Honor.
Q Did you not put in writing his answer?
A It was not placed but I asked him orally.
Q So you do not know whether the accused before you investigated
him give a statement that he want the assistance of counsel?
A He not also say that he news the assistance of counsel.

29

xxx xxx xxx

From this testimony, we are not convinced that the accused made a waiver of his rights.
It is claimed, however, that Decierdo reiterated his confession before Fiscal Baldomero Fernandez
upon the reinvestigation of Criminal Case No. 905, before whom he allegedly. declined anew the
assistance of a lawyer. We quote from Exhibit "C":
xxx xxx xxx
INVESTIGATOR: I am appraising you of your rights under the
constitution that you are entitled to the aid of a lawyer even during
this investigation, my question is, do you want the assistamce of a
lawyer during this investigation?

ACCUSED DECIERDO: No sir. 30


xxx xxx xxx
But assuming that this amounts to a waiver, still, it is an invalid waiver, Decierdo not having been
assisted by a lawyer at the time he executed Exhibit "C". Apropos this rule, we held in a recent
decision, People vs. Jar: 31
xxx xxx xxx
Whenever a protection given by the Constitution is waived by the person entitled to that protection,
the presumption is always against the waiver. Consequently, the prosecution must prove with
strongly convincing evidence to the satisfaction of this Court that indeed the accused willingly and
voluntarily submitted his confession and knowingly and deliberately manifested that he was not
interested in having a lawyer assist him during the taking of that confession. That proof is missing in
this case. 32
xxx xxx xxx
We are not satisfied furthermore that the accused was here apprised of his constitutional rights
within the contemplation of the fundamental law. Section 20, Article IV of the 1973 Constitution sets
forth, indeed, quite a stringent procedure. So we held in People v. Caguioa: 33
xxx xxx xxx
... Prior to any questioning, the person must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed. The
defendant, may waive effectuation of those rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at
any stage of the process that he wishes to consult with an attorney before speaking,
there can be no questioning. Likewise, if the individual is alone and indicates in any
manner that he does not wish to be interrogated, the police may not question him,
The mere fact that he may have answered some questions or volunteered some
statements on his own does not deprive him of the right to refrain from answering
any further inquiries until he has consulted with an attorney and thereafter consent to
be questioned."
xxx xxx xxx
In People vs. Duero, 34 we added
xxx xxx xxx
At the outset, if a person in custody is to be subjected to interrogation, he must first
be informed in clear and unequivocal terms that he has the right to remain silent.

For those unaware of the privilege, the warning is needed simply to make them
aware of it-the threshold requirement for an intelligent decision as to its exercise.
More important, such a warning is an absolute pre-requisite in overcoming the
inherent pressures of the interrogation atmosphere
Further, the warning will show the individual that his interrogators are prepared to
recognize his privilege should he choose to exercise it . . .
The warning of the right to remain silent must be accompanied by the explanation
that anything said can and will be used against the individual in court. This warning is
needed in order to make him aware not only of the privilege, but also of the
consequences of forgoing it . . .
An individual need not make a pre-interrogation request for a lawyer. While such
request affirmatively secures his right to have one, his failure to ask for a lawyer does
not constitute a waiver. No effective waiver of the right to counsel during interrogation
can be recognized unless specifically made after the warnings we here delineate
have been given. The accused who does not know his rights and therefore does not
make a request may be the person who most needs counsel . . .
If an individual indicates that he wishes the assistance of counsel before any
interrogation occurs, the authorities cannot rationally ignore or deny his request on
the basis that the individual .does not have or cannot afford a retained attorney ...
In order fully to apprise a person interrogated of the extent of his rights under this
system then, it is necessary to warn him not only that he has the right to consult with
an attorney, but also that if he is indigent a lawyer will be appointed to represent him .
..
Once warnings have been given, the subsequent procedure is clear. If the individual
indicates in any manner, at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease . . . If the individual cannot obtain an
attorney and he indicates that he wants one before speaking to police, they must
respect his decision to remain silent . . .
If the interrogation continues without the presence of an attorney and a statement is
taken, a heavy burden rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against self- incrimination and his
right to retained or appointed counsel . . .
An express statement that the individual is willing to make a statement and does not
want an attorney followed closely by a statement could constitute a waiver . . .
The warnings required and the waiver necessary in accordance with our opinion
today are, in the absence of a fully effective equivalent, prerequisites to the
admissibility of any statement made by a defendant.

xxx xxx xxx


And in Morales, Jr. v. Enrile, 35 a decision we affirmed in People v. Galit, 36 we ruled:
xxx xxx xxx
7. At the time a person is arrested, it shall be the duty of the arresting officer to inform
him of the reason for the arrest and he must be shown the warrant of arrest, if any.
He shag be informed of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him. The person arrested
shall have the right to communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means by telephone if possible or by letter or messenger. It
shall be the responsibility of the arresting officer to see to it that this is accomplished.
No custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by anyone on his behalf. The
right to counsel may be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in violation of the procedure herein
laid down, whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence. 37
xxx xxx xxx

It is not enough that the accused be informed of his constitutional rights. That is but the first step. It is
necessary, in addition, that he be convinced that notwithstanding the fact that he is in "enemy"
territory, he is not a doomed man. That is the essence of Section 20 of the 1973 Bill of Rights.
Indeed, the hostile environment of police headquarters (the police-dominated atmosphere" referred
to in Duero, et al. supra) or similar venues are enough to overwhelm one, who, out of resignation,
may execute a "confession" not truly his own. In People v. Navoa 38 we said that "coercion can be
mental as well as physical, and that the blood of the accused is not the only hallmark of an
unconstitutional confession." 39
The accused herein is furthermore unlettered, who is unable to spell his surname correctly. 40 This
should have compelled Judge Bacarro to take greater pains in explaining to the accused his constitutional
rights. 41 In People v. Nicandro, " we admonished:
xxx xxx xxx
When the Constitution requires a person under investigation "to be informed" of Ms
right to remain silent and to counsel it must be presumed to contemplate the
transmission of meaningful information petition rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle. As a rule, therefor, it
would not be sufficient for a police officer just to repeat to the person under
investigation the provisions of Section 20, Article IV of the Constitution. He is not only
duty-bound to tell the person the rights to which the latter is entitled: he must also
explain their effects in practical terms, e.g., what the person under interrogation may
or may not do, and in a language the subject fairly understands (See People vs.
Ramos, 122 SCRA 312; People vs. Caguioa, 95 SCRA 2.) In other words, the right of

a person under interrogation "to be informed" implies a correlative obligation on the


part of the police investigator to explain, and contemplates an effective
communication that results in understanding what is conveyed. Short of this, there is
a denial of the right, as it cannot truly be said that the person has been "informed" of
his rights. Now, since the right "to be informed" implies comprehension, the degree of
explanation required will necessary vary, depending upon the education, intelligence
and other relevant personal circumstances of the person under investigation. Suffice
it to say that a simpler and more lucid explanation is renewed where the subject is
unlettered. 43
xxx xxx xxx
The right against self-incrimination expressed in the Constitution is not, indeed, an Idle right. It
strikes at the very foundations of modem civilization. Time and again this Court has so
emphasized. We said 1
xxx xxx xxx
But in People v. Jimenez, 46 we spoke in even clearer language:
xxx xxx xxx
The history of this constitutional right against compulsory self petition stems from the
revulsion of mankind against the abuses committed by the ecclesiastical inquisitions
and by the Star Chamber several centuries ago. The privilege against selfincrimination "was aimed at a more far-reaching evil-a recurrence of the Inquisition
and the Star Chamber, even if not in their stark brutality. Involuntary confessions had
been rejected by all courts not only on the ground of its unreliability but also more
important, on humanitarian principles which abhor all forms of torture or unfairness
towards the accused in criminal proceedings. Although the constitutional language in
which the privilege is cast might be construed to APPLY only to situations in which
the prosecution seeks to call a defendant to testify against himself at the criminal trial
its application has been held to apply to civil proceedings, to congressional
investigations, to juvenile proceedings, and other statutory inquiries. In the
application of this right, the natural concern is the obvious realization that an inability
to protect the right at one stage of a proceeding may make its invocation useless at a
later stage. Thus, testimony "obtained in civil suits, or before administrative or
legislative committees, could also prove so incriminatory that a person compelled to
give such testimony might readily be convicted on the basis of those disclosures in a
subsequent criminal proceeding.
In 1966, the Supreme Court of the United States, in the precedent-setting case
of Miranda v. Arizona,established rules to protect a criminal defendant's privilege
against self- incrimination from the pressures arising during custodial investigation by
the police. Thus, to provide practical safeguards for the practical reinforcement for
the right against compulsory self-incrimination, the Court held that "the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. ... 47

xxx xxx xxx


Incorporating Miranda v. Arizona, 48 in the Constitution was by no means an effort to copycat American
precedents. It was intended to fill a constitutional hiatus under the 1935 Charter. According to the 1935
Bill of Rights:
(18) No person shall be compelled to be a witness against him.

49

But if Section 20, Article IV of the 1973 Charter carried quite an exacting standard compared to its
1935 predecessor, the 1987 Constitution provides for an even more demanding procedure. Thus:
SEC. 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate
the free will shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or section 17 hereof shall
be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violation petitions of this
section as well as compensation to and rehabilitation of victims of torture or similar
practices, and their families. 50
We have not, after all, built a perfect democracy. "Invitations" for questioning by police agencies,
forced "re-enactments" of crimes, and coerced confessions are practices that have not perished with
the passing of theancien regime. It is in such proceedings that the guiding hand of counsel becomes
truly essential. The fact that the respondent may, in the minds of the Peace officers holding him
under custody, be truly guilty is of no moment, for if he is, such peace officers are charged to present
Proof of such guilt. But let that guilt rest on competent evidence, and not from an involuntary
admission.
For the time-honored rule is that it is the lesser evil to set a hundred guilty men free than to have one
innocent person languish in prison. As humanity enters the threshold of the 21st century, it is indeed
unimaginable that the dreaded days of the inquisition should Still haunt us. The rights of a human
being, no matter how unfortunately circumstanced, deserve full recognition and protection. Only then
can we be truly called a civilized society.
The people contend however that Exhibits "A"-"A- 25,' were executed voluntarily, for which they
should be admitted in evidence. 51
While we have consistently ruled that the Constitution does not envision confessions otherwise
voluntarily given,52 here, we have serious doubts whether Exhibits "A"-"A-25" were the accused's
voluntary statements. As we said, the accused was not assisted by counsel. That makes that statement,
in contemplation of law, "involuntary," even if it were otherwise voluntary, technically. The accused

moreover was arrested, he did not surrender. But what disturbs us is the fact that he was brought to the
Tambulig municipal judge for questioning, 53 albeit there is nothing in the records that will show that he
wished to see His Honor, least of all to confess to a crime before him. The investigation was moreover
witness by three policemen, his captor, Pat. Bopadora, being one of them. 54

Under the circumstances, it cannot be said that the accused volunteered his alleged confession
before Judge Bacarro. He was, as it were, brought to His Honor's waiting arms.
We doubt likewise whether or not the one-sentence "advices" embodied in Exhibits "A"-"A-25" and
"C-6" satisfy the requirements of the Constitution. We have had occasion to strike down a similar
advice. In People v. Galit, supra, we decreed:
xxx xxx xxx
12. Such a long question followed by a monosyllabic answer does not satisfy the
requirements of the law that the accused be informed of his rights under the
Constitution and our laws. Instead there should be several short and clear questions
and every right explained in simple words in a dialect or language known to the
person under investigation. Accused is from Samar and there is no showing that he
understands Tagalog. Moreover, at the time of his arrest, accused was not permitted
to communicate with his lawyer, a relative, or a friend. In fact, his sisters and other
relatives did not know that he had been brought to the NBI for investigation and it
was only about two weeks after he had executed the salaysay that his relatives were
allowed to visit him. His statement does not even contain any waiver of right to
counsel and yet during the investigation he was not assisted by one. 55
Other than the confession in question, the government has no other evidence to support Decierdo's
conviction. The witness, Pantaleon Tauto-An, testified but on the injuries suffered by the
victim, 56 while the only other witnesses for the people, Judge Gualberto Bacarro, Patrolman Alfredo
Bopadora, and Fiscal Baldomero Fernandez all testified on the alleged confession executed by the
accused. 57 As earlier noted, the prosecution presented no eyewitnesses. Complete reliance is thus
placed on the accused's supposed confession. That confession being inadmissible in evidence, it follows
that Decierdo is entitled to an acquittal.
WHEREFORE, the decision is hereby reversed, and the accused Pedro Decierdo is ACQUITTED of
the crime charged. His release from confinement is hereby ordered, unless he is held for another
legal cause. With costs de oficio, et al.
SO ORDERED.

G.R. No. 158763

March 31, 2006

JOSE C. MIRANDA, ALBERTO P. DALMACIO, and ROMEO B. OCON, Petitioners,


vs.
VIRGILIO M. TULIAO, Respondent.
DECISION
CHICO-NAZARIO, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the 18
December 2002 Decision 1 of the Court of Appeals in CA-G.R. SP No. 67770 and its 12 June 2003
Resolution denying petitioners Motion for Reconsideration. The dispositive portion of the assailed
decision reads as follows:
WHEREFORE, finding public respondent Judge Anastacio D. Anghad to have acted with grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Orders, the
instant petition for certiorari, mandamus and prohibition is hereby GRANTED and GIVEN DUE
COURSE, and it is hereby ordered:
1. The assailed Joint Order dated August 17, 2001, Order dated September 21, 2001, Joint 1Order
dated October 16, 2001 and Joint Order dated November 14, 2001 dismissing the two (2)
Informations for Murder, all issued by public respondent Judge Anastacio D. Anghad in
Criminal Cases Nos. 36-3523 and 36-3524 are hereby REVERSED and SET ASIDE for
having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction, and another entered UPHOLDING, AFFIRMING[,] and REINSTATING the Order
dated June 25, 2001 and Joint Order dated July 6, 2001 issued by the then acting Presiding
Judge Wilfredo Tumaliuan;
2. Criminal Cases Nos. 36-3523 and 36-3524 are hereby ordered REINSTATED in the
docket of active criminal cases of Branch 36 of the Regional Trial Court of Santiago City,
Isabela; and
3. Public respondent Judge Anastacio D. Anghad is DIRECTED to ISSUE forthwith Warrants
of Arrest for the apprehension of private respondents Jose "Pempe" Miranda, SPO3 Alberto
P. Dalmacio, PO3 Romeo B. Ocon and accused Rodel T. Maderal in said Criminal Cases
Nos. 36-3523 and 36-3524. 2
The factual and procedural antecedents of the case are as follows:
On 8 March 1996, two burnt cadavers were discovered in Purok Nibulan, Ramon, Isabela, which
were later identified as the dead bodies of Vicente Bauzon and Elizer Tuliao, son of private
respondent Virgilio Tuliao who is now under the witness protection program.
Two informations for murder were filed against SPO1 Wilfredo Leao, SPO1 Ferdinand Marzan,
SPO1 Ruben B. Agustin, SPO2 Alexander Micu, SPO2 Rodel Maderal, and SPO4 Emilio
Ramirez in the Regional Trial Court (RTC) of Santiago City.
The venue was later transferred to Manila. On 22 April 1999, the RTC of Manila convicted all of the
accused and sentenced them to two counts of reclusion perpetua except SPO2 Maderal who

was yet to be arraigned at that time, being at large. The case was appealed to this Court on
automatic review where we, on 9 October 2001, acquitted the accused therein on the ground
of reasonable doubt.
Sometime in September 1999, SPO2 Maderal was arrested. On 27 April 2001, he executed a sworn
confession and identified petitioners Jose C. Miranda, PO3 Romeo B. Ocon, and SPO3
Alberto P. Dalmacio, a certain Boyet dela Cruz and Amado Doe, as the persons responsible
for the deaths of Vicente Bauzon and Elizer Tuliao.
Respondent Tuliao filed a criminal complaint for murder against petitioners, Boyet dela Cruz, and
Amado Doe, and submitted the sworn confession of SPO2 Maderal. On 25 June 2001,
Acting Presiding Judge Wilfredo Tumaliuan issued warrants of arrest against petitioners and
SPO2 Maderal.
On 29 June 2001, petitioners filed an urgent motion to complete preliminary investigation, to
reinvestigate, and to recall and/or quash the warrants of arrest.
In the hearing of the urgent motion on 6 July 2001, Judge Tumaliuan noted the absence of
petitioners and issued a Joint Order denying said urgent motion on the ground that, since the
court did not acquire jurisdiction over their persons, the motion cannot be properly heard by
the court. In the meantime, petitioners appealed the resolution of State Prosecutor Leo T.
Reyes to the Department of Justice.
On 17 August 2001, the new Presiding Judge Anastacio D. Anghad took over the case and issued a
Joint Order reversing the Joint Order of Judge Tumaliuan. Consequently, he ordered the
cancellation of the warrant of arrest issued against petitioner Miranda. He likewise applied
this Order to petitioners Ocon and Dalmacio in an Order dated 21 September 2001. State
Prosecutor Leo S. Reyes and respondent Tuliao moved for the reconsideration of the said
Joint Order and prayed for the inhibition of Judge Anghad, but the motion for reconsideration
was denied in a Joint Order dated 16 October 2001 and the prayer for inhibition was denied
in a Joint Order dated 22 October 2001.
On 25 October 2001, respondent Tuliao filed a petition for certiorari, mandamus and prohibition with
this Court, with prayer for a Temporary Restraining Order, seeking to enjoin Judge Anghad
from further proceeding with the case, and seeking to nullify the Orders and Joint Orders of
Judge Anghad dated 17 August 2001, 21 September 2001, 16 October 2001, and 22
October 2001.
On 12 November 2001, this Court issued a Resolution resolving to grant the prayer for a temporary
restraining order against Judge Anghad from further proceeding with the criminal cases.
Shortly after the aforesaid resolution, Judge Anghad issued a Joint Order dated 14
November 2001 dismissing the two Informations for murder against petitioners. On 19
November 2001, this Court took note of respondents cash bond evidenced by O.R. No.
15924532 dated 15 November 2001, and issued the temporary restraining order while
referring the petition to the Court of Appeals for adjudication on the merits.
Respondent Tuliao filed with this Court a Motion to Cite Public Respondent in Contempt, alleging
that Judge Anghad "deliberately and willfully committed contempt of court when he issued on
15 November 2001 the Order dated 14 November 2001 dismissing the informations for

murder." On 21 November 2001, we referred said motion to the Court of Appeals in view of
the previous referral to it of respondents petition for certiorari, prohibition and mandamus.
On 18 December 2002, the Court of Appeals rendered the assailed decision granting the petition
and ordering the reinstatement of the criminal cases in the RTC of Santiago City, as well as
the issuance of warrants of arrest against petitioners and SPO2 Maderal. Petitioners moved
for a reconsideration of this Decision, but the same was denied in a Resolution dated 12
June 2003.
Hence, this petition.
The facts of the case being undisputed, petitioners bring forth to this Court the following assignments
of error:
FIRST ASSIGNMENT OF ERROR
With all due respect, the Honorable Court of Appeals gravely erred in reversing and setting aside the
Joint Order of Judge Anastacio D. Anghad dated August 17, 2001, September 21, 2001, October 16,
2001 and November 14, 2001 issued in criminal cases numbered 36-3523 and 36-3524; and, erred
in upholding, affirming and reinstating the Order dated July 6, 2001 issued by then Acting Presiding
Judge Wilfredo Tumaliuan, on the alleged rule that an accused cannot seek any judicial relief if he
does not submit his person to the jurisdiction of the court.
SECOND ASSIGNMENT OF ERROR
With all due respect, the Honorable Court of Appeals gravely erred in directing the reinstatement of
Criminal Cases No. 36-3523 and 36-3524 in the docket of Active Criminal Cases of Branch 36 of the
Regional Trial Court of Santiago City, Philippines, and in ordering the public respondent to re-issue
the warrants of arrest against herein petitioners.
THIRD ASSIGNMENT OF ERROR
Wit all due respect, the Honorable Court of Appeals committed a reversible error in ordering the
reinstatement of Criminal Cases No. 36-3523 and No. 36-3524 in the docket of active criminal cases
of Branch 36 of the regional trial court of Santiago City, Philippines, and in ordering the public
respondent to issue warrants of arrest against herein petitioners, the order of dismissal issued
therein having become final and executory.
Adjudication of a motion to quash a warrant of arrest requires neither jurisdiction over the person of
the accused, nor custody of law over the body of the accused.
The first assignment of error brought forth by the petitioner deals with the Court of Appeals ruling
that:
[A]n accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the
court. Jurisdiction over the person of the accused may be acquired either through compulsory
process, such as warrant of arrest, or through his voluntary appearance, such as when he
surrenders to the police or to the court. It is only when the court has already acquired jurisdiction

over his person that an accused may invoke the processes of the court (Pete M. Pico vs. Alfonso V.
Combing, Jr., A.M. No. RTJ-91-764, November 6, 1992). Thus, an accused must first be placed in
the custody of the law before the court may validly act on his petition for judicial reliefs. 3
Proceeding from this premise, the Court of Appeals ruled that petitioners Miranda, Ocon and
Dalmacio cannot seek any judicial relief since they were not yet arrested or otherwise deprived of
their liberty at the time they filed their "Urgent Motion to complete preliminary investigation; to
reinvestigate; to recall and/or quash warrants of arrest."4
Petitioners counter the finding of the Court of Appeals by arguing that jurisdiction over the person of
the accused is required only in applications for bail. Furthermore, petitioners argue, assuming that
such jurisdiction over their person is required before the court can act on their motion to quash the
warrant for their arrest, such jurisdiction over their person was already acquired by the court by their
filing of the above Urgent Motion.
In arguing that jurisdiction over the person is required only in the adjudication of applications for bail,
petitioners quote Retired Court of Appeals Justice Oscar Herrera:
Except in applications for bail, it is not necessary for the court to first acquire jurisdiction over the
person of the accused to dismiss the case or grant other relief. The outright dismissal of the case
even before the court acquires jurisdiction over the person of the accused is authorized under
Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure and the Revised Rules on
Summary Procedure (Sec. 12a). In Allado vs. Diokno (232 SCRA 192), the case was dismissed on
motion of the accused for lack of probable cause without the accused having been arrested. In Paul
Roberts vs. Court of Appeals (254 SCRA 307), the Court was ordered to hold the issuance of a
warrant of arrest in abeyance pending review by the Secretary of Justice. And in Lacson vs.
Executive Secretary (301 SCRA 1025), the Court ordered the case transferred from the
Sandiganbayan to the RTC which eventually ordered the dismissal of the case for lack of probable
cause.6
In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing
of the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D.
Regalado, in Santiago v. Vasquez7:
The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is
accomplished either by his pleading to the merits (such as by filing a motion to quash or other
pleadings requiring the exercise of the courts jurisdiction thereover, appearing for arraignment,
entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the
provisional liberty of the accused, as a rule the same cannot be posted before custody of the
accused has been acquired by the judicial authorities either by his arrest or voluntary surrender.
Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over
the person. Custody of the law is required before the court can act upon the application for bail, but
is not required for the adjudication of other reliefs sought by the defendant where the mere
application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the
accused.8 Custody of the law is accomplished either by arrest or voluntary surrender,9 while
jurisdiction over the person of the accused is acquired upon his arrest or voluntary
appearance. 10 One can be under the custody of the law but not yet subject to the jurisdiction of the
court over his person, such as when a person arrested by virtue of a warrant files a motion before

arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the
court over his person, and yet not be in the custody of the law, such as when an accused escapes
custody after his trial has commenced. 11Being in the custody of the law signifies restraint on the
person, who is thereby deprived of his own will and liberty, binding him to become obedient to the
will of the law. 12 Custody of the law is literally custody over the body of the accused. It includes, but
is not limited to, detention.
The statement in Pico v. Judge Combong, Jr., 13 cited by the Court of Appeals should not have been
separated from the issue in that case, which is the application for admission to bail of someone not
yet in the custody of the law. The entire paragraph of our pronouncement in Pico reads:
A person applying for admission to bail must be in the custody of the law or otherwise deprived of his
liberty. A person who has not submitted himself to the jurisdiction of the court has no right to invoke
the processes of that court. Respondent Judge should have diligently ascertained the whereabouts
of the applicant and that he indeed had jurisdiction over the body of the accused before considering
the application for bail. 13
While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a
general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of
the court. 15 As we held in the aforecited case of Santiago, seeking an affirmative relief in court,
whether in civil or criminal proceedings, constitutes voluntary appearance.
Pico deals with an application for bail, where there is the special requirement of the applicant being
in the custody of the law. In Feliciano v. Pasicolan, 16 we held that "[t]he purpose of bail is to secure
ones release and it would be incongruous to grant bail to one who is free. Thus, bail is the security
required and given for the release of a person who is in the custody of law." The rationale behind
this special rule on bail is that it discourages and prevents resort to the former pernicious practice
wherein the accused could just send another in his stead to post his bail, without recognizing the
jurisdiction of the court by his personal appearance therein and compliance with the requirements
therefor. 17
There is, however, an exception to the rule that filing pleadings seeking affirmative relief constitutes
voluntary appearance, and the consequent submission of ones person to the jurisdiction of the
court. This is in the case of pleadings whose prayer is precisely for the avoidance of the jurisdiction
of the court, which only leads to a special appearance. These pleadings are: (1) in civil cases,
motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or
not other grounds for dismissal are included; 18 (2) in criminal cases, motions to quash a complaint
on the ground of lack of jurisdiction over the person of the accused; and (3) motions to quash a
warrant of arrest. The first two are consequences of the fact that failure to file them would constitute
a waiver of the defense of lack of jurisdiction over the person. The third is a consequence of the fact
that it is the very legality of the court process forcing the submission of the person of the accused
that is the very issue in a motion to quash a warrant of arrest.
To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the
accused is deemed waived by the accused when he files any pleading seeking an affirmative relief,
except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction
over his person. Therefore, in narrow cases involving special appearances, an accused can invoke
the processes of the court even though there is neither jurisdiction over the person nor custody of

the law. However, if a person invoking the special jurisdiction of the court applies for bail, he must
first submit himself to the custody of the law.
In cases not involving the so-called special appearance, the general rule applies, i.e., the accused is
deemed to have submitted himself to the jurisdiction of the court upon seeking affirmative relief.
Notwithstanding this, there is no requirement for him to be in the custody of the law. The following
cases best illustrate this point, where we granted various reliefs to accused who were not in the
custody of the law, but were deemed to have placed their persons under the jurisdiction of the court.
Note that none of these cases involve the application for bail, nor a motion to quash an information
due to lack of jurisdiction over the person, nor a motion to quash a warrant of arrest:
1. In Allado v. Diokno, 19 on the prayer of the accused in a petition for certiorari on the ground of lack
of probable cause, we issued a temporary restraining order enjoining PACC from enforcing the
warrant of arrest and the respondent judge therein from further proceeding with the case and,
instead, to elevate the records to us.
2. In Roberts, Jr. v. Court of Appeals,20 upon the accuseds Motion to Suspend Proceedings and to
Hold in Abeyance Issuance of Warrants of Arrest on the ground that they filed a Petition for Review
with the Department of Justice, we directed respondent judge therein to cease and desist from
further proceeding with the criminal case and to defer the issuance of warrants of arrests against the
accused.
3. In Lacson v. Executive Secretary,21 on the prayer of the accused in a petition for certiorari on the
ground of lack of jurisdiction on the part of the Sandiganbayan, we directed the Sandiganbayan to
transfer the criminal cases to the Regional Trial Court even before the issuance of the warrants of
arrest.
We hold that the circumstances forcing us to require custody of the law in applications for bail are
not present in motions to quash the warrant of arrest. If we allow the granting of bail to persons not
in the custody of the law, it is foreseeable that many persons who can afford the bail will remain at
large, and could elude being held to answer for the commission of the offense if ever he is proven
guilty. On the other hand, if we allow the quashal of warrants of arrest to persons not in the custody
of the law, it would be very rare that a person not genuinely entitled to liberty would remain scot-free.
This is because it is the same judge who issued the warrant of arrest who will decide whether or not
he followed the Constitution in his determination of probable cause, and he can easily deny the
motion to quash if he really did find probable cause after personally examining the records of the
case.
Moreover, pursuant to the presumption of regularity of official functions, the warrant continues in
force and effect until it is quashed and therefore can still be enforced on any day and at any time of
the day and night.22Furthermore, the continued absence of the accused can be taken against him in
the determination of probable cause, since flight is indicative of guilt.
In fine, as much as it is incongruous to grant bail to one who is free, it is likewise incongruous to
require one to surrender his freedom before asserting it. Human rights enjoy a higher preference in
the hierarchy of rights than property rights,23 demanding that due process in the deprivation of liberty
must come before its taking and not after.

Quashing a warrant of arrest based on a subsequently filed petition for review with the Secretary of
Justice and based on doubts engendered by the political climate constitutes grave abuse of
discretion.
We nevertheless find grave abuse of discretion in the assailed actions of Judge Anghad. Judge
Anghad seemed a little too eager of dismissing the criminal cases against the petitioners. First, he
quashed the standing warrant of arrest issued by his predecessor because of a subsequently filed
appeal to the Secretary of Justice, and because of his doubts on the existence of probable cause
due to the political climate in the city. Second, after the Secretary of Justice affirmed the prosecutors
resolution, he dismissed the criminal cases on the basis of a decision of this Court in another case
with different accused, doing so two days after this Court resolved to issue a temporary restraining
order against further proceeding with the case.
After Judge Tumaliuan issued warrants for the arrest of petitioners, petitioner Miranda appealed the
assistant prosecutors resolution before the Secretary of Justice. Judge Anghad, shortly after
assuming office, quashed the warrant of arrest on the basis of said appeal. According to Judge
Anghad, "x x x prudence dictates (that) and because of comity, a deferment of the proceedings is but
proper."24
Quashal on this basis is grave abuse of discretion. It is inconceivable to charge Judge Tumaliuan as
lacking in prudence and oblivious to comity when he issued the warrants of arrest against petitioners
just because the petitioners might, in the future, appeal the assistant prosecutors resolution to the
Secretary of Justice. But even if the petition for review was filed before the issuance of the warrants
of arrest, the fact remains that the pendency of a petition for the review of the prosecutors resolution
is not a ground to quash the warrants of arrest.
In Webb v. de Leon,25 we held that the petitioners therein cannot assail as premature the filing of the
information in court against them on the ground that they still have the right to appeal the adverse
resolution of the DOJ Panel to the Secretary of Justice. Similarly, the issuance of warrants of arrest
against petitioners herein should not have been quashed as premature on the same ground.
The other ground invoked by Judge Anghad for the quashal of the warrant of arrest is in order if true:
violation of the Constitution. Hence, Judge Anghad asked and resolved the question:
In these double murder cases, did this Court comply or adhere to the above-quoted constitutional
proscription, which is Sec. 2, Article III Bill of Rights; to Sec. 6(a), Rule 112, Rules of Criminal
Procedure and to the above-cited decisional cases? To this query or issue, after a deep perusal of
the arguments raised, this Court, through [its] regular Presiding Judge, finds merit in the contention
of herein accused-movant, Jose "Pempe" Miranda.26
Judge Anghad is referring to the following provision of the Constitution as having been violated by
Judge Tumaliuan:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge 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.27

However, after a careful scrutiny of the records of the case, including the supporting evidence to the
resolution of the prosecutor in his determination of probable cause, we find that Judge Anghad
gravely abused his discretion.
According to petitioners:
In this case, the nullity of the order of Judge Tumaliuan, for the arrest of the petitioners is apparent
from the face of the order itself, which clearly stated that the determination of probable cause was
based on the certification, under oath, of the fiscal and not on a separate determination personally
made by the Judge. No presumption of regularity could be drawn from the order since it expressly
and clearly showed that it was based only on the fiscals certification. 28
Petitioners claim is untrue. Judge Tumaliuans Joint Order contains no such indication that he relied
solely on the prosecutors certification. The Joint Order even indicated the contrary:
Upon receipt of the information and resolution of the prosecutor, the Court proceeded to determine
the existence of a probable cause by personally evaluating the records x x x.[29]
The records of the case show that the prosecutors certification was accompanied by supporting
documents, following the requirement under Lim, Sr. v. Felix30 and People v. Inting.31 The supporting
documents are the following:
1. Resolution dated 21 June 2001 of State Prosecutor Leo S. Reyes;
2. Affidavit dated 22 May 2001 of Modesto Gutierrez;
3. Affidavit dated 19 May 2001 of Romeo B. Ocon;
4. Joint Counter Affidavit dated 23 May 2001 of Mayor Jose C. Miranda and Reynaldo de la
Cruz;
5. Affidavit dated 19 May 2001 of Alberto Dalmacio;
6. Decision dated 22 April 1999 of the Regional Trial Court of Manila, Branch 41 in Criminal
Case No. 97-160355;
7. Sworn statement dated 27 April 2001 of Rodel Maderal;
8. Information dated 22 June 2001;
9. Affidavit-complaint of Virgilio Tuliao; and
10. Medico-legal Reports of the cadavers of Elezer Tuliao and Vicente Buazon.
Hence, procedurally, we can conclude that there was no violation on the part of Judge Tumaliuan of
Article III, Section 2, of the Constitution. Judge Anghad, however, focused on the substantive part of
said section, i.e., the existence of probable cause. In failing to find probable cause, Judge Anghad
ruled that the confession of SPO2 Maderal is incredible for the following reasons: (1) it was given

after almost two years in the custody of the National Bureau of Investigation; (2) it was given by
someone who rendered himself untrustworthy for being a fugitive for five years; (3) it was given in
exchange for an obvious reward of discharge from the information; and (4) it was given during the
election period amidst a "politically charged scenario where "Santiago City voters were pitted against
each other along the lines of the Miranda camp on one side and former City Mayor Amelita S.
Navarro, and allegedly that of DENR Secretary Heherson Alvarez on the other." 32
We painstakingly went through the records of the case and found no reason to disturb the findings of
probable cause of Judge Tumaliuan.
It is important to note that an exhaustive debate on the credibility of a witness is not within the
province of the determination of probable cause. As we held in Webb 33:
A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed and was committed by the suspects. Probable cause need not be based on
clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v.
United States, while probable cause demands more than "bare suspicion," it requires "less than
evidence which would justify x x x conviction." A finding of probable cause merely binds over the
suspect to stand trial. It is not a pronouncement of guilt.
x x x Probable cause merely implies probability of guilt and should be determined in a summary
manner. Preliminary investigation is not a part of trial x x x.
Dismissing a criminal case on the basis of a decision of this Court in another case with different
accused constitutes grave abuse of discretion.
Judge Anghad had quashed the warrant of arrest on the ground, among other things, that there was
a petition for review of the assistant prosecutors resolution before the Secretary of Justice.
However, after the Secretary of Justice affirmed the prosecutors resolution, Judge Anghad
summarily dismissed the two criminal cases against the petitioners on the basis of the following
explanation:
Rodel Maderal was one of the accused in People vs. Wilfredo Leano, et al., RTC, Branch 41, Manila,
and based from his sworn statements, he pinpointed to Mr. Miranda the mastermind and with him
and the other police officers as the direct perpetrators, the October 9, 2001 Decision of the Supreme
Court absolving the five cops of murder, certainly makes his sworn Statements a "narration of
falsehood and lies" and that because of the decision acquitting said officers "who were likewise
falsely linked by said Rodel Maderal in his April 27, 2001 statements, it is now beyond doubt that
Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is
without probable value." This Court agrees with the defenses views. Indeed, of what use is
Maderals statements when the Supreme Court rejected the prosecutions evidence presented and
adduced in Criminal Case No. 97-160355. Rodel Maderal is supposed to turn state witness in these
two (2) cases but with the Supreme Court decision adverted to, the probative value of his statements
is practically nil.
xxxx

This Court finds merit to the manifestation of the accused Miranda dated October 18, 2001, praying
for the summary dismissal of the two (2) murder charges in view of the latest decision of the
Supreme Court in People of the Philippines vs. Wilfredo Leao, et al., G.R. No. 13886, acquitting the
accused therein and in effect disregarding all the evidence presented by the prosecution in that
case. Accordingly, the two (2) informations [for] murder filed against Jose Miranda are ordered
dismissed.34
This is a clear case of abuse of discretion. Judge Anghad had no right to twist our decision and
interpret it to the discredit of SPO2 Maderal, who was still at large when the evidence of the
prosecution in the Leao case was presented. A decision, even of this Court, acquitting the accused
therein of a crime cannot be the basis of the dismissal of criminal case against different accused for
the same crime. The blunder of Judge Anghad is even more pronounced by the fact that our
decision in Leao was based on reasonable doubt. We never ruled in Leao that the crime did not
happen; we just found that there was reasonable doubt as to the guilt of the accused therein, since
the prosecution in that case relied on circumstantial evidence, which interestingly is not even the
situation in the criminal cases of the petitioners in the case at bar as there is here an eyewitness:
Rodel Maderal. The accused in Leao furthermore had no motive to kill respondent Tuliaos son,
whereas petitioners herein had been implicated in the testimony of respondent Tuliao before the
Senate Blue Ribbon Committee.
It is preposterous to conclude that because of our finding of reasonable doubt in Leao, "it is now
beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore
the same is without probable value."35 On the contrary, if we are to permit the use of our decision in
Leao, an acquittal on the ground of reasonable doubt actually points to the probability of the
prosecutions version of the facts therein. Such probability of guilt certainly meets the criteria of
probable cause.
We cannot let unnoticed, too, Judge Anghads dismissal of the informations two days after we
resolved to issue, upon the filing of a bond, a temporary restraining order prohibiting him from further
proceeding with the case. The bond was filed the day after the informations were dismissed. While
the dismissal of the case was able to beat the effectivity date of the temporary restraining order,
such abrupt dismissal of the informations (days after this Courts resolve to issue a TRO against
Judge Anghad) creates wild suspicions about the motives of Judge Anghad.
Nullification of a proceeding necessarily carries with it the reinstatement of the orders set aside by
the nullified proceeding.
In their second assignment of error, petitioners claim that the Court of Appeals did not recall or
reinstate the warrants of arrest issued by Judge Tumaliuan, but instead directed Judge Anghad to
issue apparently new warrants of arrest.36 According to the petitioners, it was an error for the Court of
Appeals to have done so, without a personal determination of probable cause.
We disagree. Whether the Court of Appeals ordered the issuance of new warrants of arrest or
merely ordered the reinstatement of the warrants of arrest issued by Judge Tumaliuan is merely a
matter of scrupulous semantics, the slight inaccuracy whereof should not be allowed to affect the
dispositions on the merits, especially in this case where the other dispositions of the Court of
Appeals point to the other direction. Firstly, the Court of Appeals had reinstated the 25 June 2001
Order of Judge Tumaliuan,37 which issued the warrants of arrest. Secondly, the Court of Appeals
likewise declared the proceedings conducted by Judge Anghad void. Certainly, the declaration of

nullity of proceedings should be deemed to carry with it the reinstatement of the orders set aside by
the nullified proceedings. Judge Anghads order quashing the warrants of arrest had been nullified;
therefore those warrants of arrest are henceforth deemed unquashed.
Even if, however, the Court of Appeals had directed the issuance of new warrants of arrest based on
a determination of probable cause, it would have been legally permissible for them to do so. The
records of the preliminary investigation had been available to the Court of Appeals, and are also
available to this Court, allowing both the Court of Appeals and this Court to personally examine the
records of the case and not merely rely on the certification of the prosecutor. As we have ruled in
Allado v. Diokno and Roberts v. Court of Appeals, the determination of probable cause does not rest
on a subjective criteria. As we had resolved in those cases to overrule the finding of probable cause
of the judges therein on the ground of grave abuse of discretion, in the same vein, we can also
overrule the decision of a judge reversing a finding of probable cause, also on the ground of grave
abuse of discretion.
There is no double jeopardy in the reinstatement of a criminal case dismissed before arraignment
In their third assignment of error, petitioners claim that the Court of Appeals committed a reversible
error in ordering the reinstatement of Criminal Cases No. 36-3523 and No. 36-3524, alleging that the
order of dismissal issued therein had become final and executory. According to petitioners:
It is also worthy to point out at this juncture that the Joint Order of Judge Anghad dated November
14, 2001 is NOT ONE of those Orders which were assailed in the private respondent Tuliaos
Petition for Certiorari, Mandamus and Prohibition filed by the private respondent before the Court of
Appeals. As carefully enumerated in the first page of the assailed Decision, only the following Orders
issued by Judge Anghad were questioned by private respondent, to wit:
1.) Joint Order dated August 17, 2001;
2.) Order dated September 21, 2001;
3.) Joint Order dated October 16, 2001; and
4.) Joint Order dated October 22, 2001.
Obviously, the Joint Order dated November 14, 2001 of Judge Anghad, which ultimately dismissed
Criminal Cases Nos. 36-3523 AND 36-3524 is NOT included in the list of the assailed Order/Joint
Orders. Hence, the Court of Appeals should not have passed upon the validity or nullity of the Joint
Order of November 14, 2001.38
Petitioners must have forgotten that respondent Tuliaos Petition for Certiorari, Prohibition and
Mandamus was filed not with the Court of Appeals, but with this Court. The Court of Appeals decided
the case because we referred the same to them in our 19 November 2001 Resolution. Such petition
was filed on 25 October 2001, around three weeks before the 14 November 2001 Order. Upon
receipt of the 14 November 2001 Order, however, respondent Tuliao lost no time in filing with this
Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and
willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14
November 2001 dismissing the informations for murder." On 21 November 2001, we referred said

motion to the Court of Appeals, in view of the previous referral of respondent Tuliaos petition for
certiorari, prohibition and mandamus.
Our referral to the Court of Appeals of the Motion to Cite Public Repondent in Contempt places the
14 November 2001 Order within the issues of the case decided by the Court of Appeals. In claiming
that Judge Anghad committed contempt of this Court in issuing the 14 November 2001 Order,
respondent Tuliao had ascribed to Judge Anghad an act much more serious than grave abuse of
discretion.
Respondent Tuliao claims that Judge Anghad issued the 14 November 2001 Order on 15 November
2001, antedating it so as to avoid the effects of our 12 November 2001 Resolution. In said 12
November 2001 Resolution, we resolved to issue a temporary restraining order enjoining Judge
Anghad from further proceeding with the criminal cases upon the respondent Tuliaos filing of a bond
in the amount of P20,000.00. Respondent Tuliao had filed the bond on 15 November 2005.
While we cannot immediately pronounce Judge Anghad in contempt, seeing as disobedience to
lawful orders of a court and abuse of court processes are cases of indirect contempt which require
the granting of opportunity to be heard on the part of respondent,39 the prayer to cite public
respondent in contempt and for other reliefs just and equitable under the premises should be
construed to include a prayer for the nullification of said 14 November 2001 Order.
In any case, the reinstatement of a criminal case dismissed before arraignment does not constitute
double jeopardy. Double jeopardy cannot be invoked where the accused has not been arraigned and
it was upon his express motion that the case was dismissed. 40
As to respondent Tuliaos prayer (in both the original petition for certiorari as well as in his motion to
cite for contempt) to disqualify Judge Anghad from further proceeding with the case, we hold that the
number of instances of abuse of discretion in this case are enough to convince us of an apparent
bias on the part of Judge Anghad. We further resolve to follow the case of People v. SPO1
Leao,41 by transferring the venue of Criminal Cases No. 36-3523 and No. 36-3524 to the City of
Manila, pursuant to Article VIII, Section 4, of the Constitution.
WHEREFORE, the petition is DENIED. The Decision dated 18 December 2002 and the Resolution
dated 12 June 2003 of the Court of Appeals are hereby AFFIRMED, with the modification that
Criminal Cases No. 36-3523 and No. 36-3524 be transferred to and raffled in the Regional Trial
Court of the City of Manila. In this connection,
1) Let a copy of this decision be furnished the Executive Judge of the RTC of the City of
Santiago, Isabela, who is directed to effect the transfer of the cases within ten (10) days after
receipt hereof;
2) The Executive Judge of the RTC of the City of Santiago, Isabela, is likewise directed to
report to this Court compliance hereto within ten (10) days from transfer of these cases;
3) The Executive Judge of the City of Manila shall proceed to raffle the criminal cases within
ten (10) days from the transfer;
4) The Executive Judge of the City of Manila is likewise directed to report to this Court
compliance with the order to raffle within ten (10) days from said compliance; and

5) The RTC Judge to whom the criminal cases are raffled is directed to act on said cases
with reasonable dispatch.
6) Finally, Judge Anastacio D. Anghad is directed to issue forthwith warrants of arrest for the
apprehension of petitioners Jose C. Miranda, Alberto P. Dalmacio, Romeo B. Ocon, and
accused Rodel T. Maderal, conformably with the decision of the Court of Appeals dated 18
December 2002.
The Temporary Restraining Order issued by this Court dated 4 August 2003 is hereby LIFTED. Costs
against Petitioners.
SO ORDERED.

WILFREDO M. TALAG, complainant, vs. JUDGE AMOR A. REYES,


Regional Trial Court, Manila Branch 21, respondent.
DECISION
YNARES-SANTIAGO, J.:

This is an administrative complaint filed against Judge Amor A. Reyes of


the Regional Trial Court, Manila for partiality, grave abuse of authority and
oppression in connection with Criminal Case No. 02-201852 entitled People
of the Philippines v. Wilfredo Talag.

The instant case arose when, on April 18, 2001, a certain Romeo Lacap
filed a complaint against Wilfredo Talag, Leticia Talag and Kenneth Bautista,
for violation of Batas Pambansa Blg. 22 and Estafa occasioned by the
dishonor of four checks.
On June 4, 2001, during the preliminary investigation, Wilfredo Talag,
Leticia Talag, and Kenneth Bautista, submitted their counter-affidavits denying
any participation in the transaction allegedly perpetrated by them to defraud
the complainant.
On December 15, 2001, the Assistant City Prosecutor issued a Resolution
recommending the filing of an Information for Estafa against herein
complainant and the dismissal of all the charges against Leticia Talag and
Kenneth Bautista. The Information was filed with the RTC of Manila, Branch
21, presided by respondent Judge Amor A. Reyes, and docketed as Criminal
Case No. 02-201852.
On May 7, 2002, complainant filed a motion for reconsideration before the
Office of the City Prosecutor, praying for the dismissal of the complaint against
him for utter lack of merit. On even date, he filed an Omnibus Motion before
the trial court: (1) to defer issuance of warrant of arrest and/or to recall the
same if already issued; and (2) to remand case to the Office of the City
Prosecutor pending review of the motion for reconsideration.
On May 31, 2002, complainant filed with the trial court a Very Urgent
Motion to Set for Hearing Accuseds Omnibus Motion to defer issuance of
warrant of arrest and/or to remand case to the Office of the City Prosecutor
pending review of the motion for reconsideration.
According to complainant, on June 11, 2002, he requested his counsel to
determine whether the hearing for the pending motions had already been set.
To his consternation, he was told by his counsel that respondent Judge
ordered the issuance of a warrant of arrest without first resolving the said
motions.
Complainant immediately filed a petition for certiorari before the Court of
Appeals challenging the issuance of the warrant of arrest. The Court of
Appeals issued a temporary restraining order enjoining the trial court from
enforcing the said warrant. Accordingly, respondent Judge issued an Order

on June 25, 2002, deferring the resolution of the Very Urgent Motion until after
the expiration of the TRO issued by the Court of Appeals. Thereafter, the
petition was dismissed by the Court of Appeals for lack of merit.
On August 20, 2002, complainant filed a motion for respondent Judges
inhibition. Two days after, i.e., on August 22, respondent Judge issued the
assailed warrant of arrest against complainant. Meanwhile, complainant
through counsel filed a Notice of Change of Address.
On September 30, 2002, complainant filed a Very Urgent Motion to
Consider Motion to Remand Case to the Office of the City Prosecutor pending
Review of the Motion for Reconsideration and Motion for Re-investigation and
to Resolve the Same with Urgency. On October 2, 2002, he filed a Motion to
Resolve Motion for Inhibition.
Respondent Judge denied the motion for inhibition and set the case for
arraignment on December 11, 2002. Complainant claims that said order never
reached him or his counsel since it was sent by registered mail to his previous
address at No. 1 Zaragosa Street, San Lorenzo Village, Makati City, inspite of
the Notice of Change Address which was filed as early as August 28, 2002.
Since complainant failed to attend his arraignment allegedly due to lack of
notice, respondent Judge reset the same to January 22, 2003. However, the
second notice was again sent to the wrong address at Makati City, again
resulting in complainants failure to attend his arraignment. As a consequence,
respondent judge issued a bench warrant of arrest.
Subsequently, complainant filed a Motion to Recall Warrant of Arrest and a
Very Urgent Motion for Reconsideration. On February 28, 2003, an order was
issued by the respondent Judge which lifted the bench warrant but denied the
motion for reconsideration.
On May 12, 2003, complainant filed a verified complaint before the Office
of the Court Administrator charging respondent Judge with partiality, grave
abuse of authority and oppression allegedly committed in the following
manner:
(1) Respondent Judge issued the warrant of arrest on May 23, 2003 despite
complainants pending omnibus motion to defer issuance of warrant of

arrest or to recall the same if already issued and to remand case to Office
of the City Prosecutor, and the very urgent motion to set for hearing the
omnibus motion;
(2) When the matter was elevated to the Court of Appeals and a temporary
restraining order was issued, respondent seemed to have waited for the
TRO to expire and for the dismissal of complainants petition before the
Court of Appeals because she did not resolve the motion for inhibition,
and she immediately issued a warrant of arrest against him after said
petition was dismissed.
(3) Respondent had a predisposition to deny the motions filed by complainant
since, although she was in haste in issuing the warrant of arrest, she
nonetheless dilly-dallied in resolving the motions filed by complainant;
(4) Despite complainants notice for a change of address, respondents order of
November 18, 2002, setting his arraignment on December 11, 2002, was
sent to his and counsels former address resulting in his failure to attend
the arraignment;
(5) In the same way, the notice of the resetting of arraignment from December
11, 2002 to January 22, 2003, was again sent to the wrong address, such
that he was not notified of said scheduled arraignment. Such lack of
notice however, did not stop respondent Judge from issuing a bench
warrant of arrest for his failure to appear on the scheduled arraignment;
(6) Although respondent Judge lifted the said bench warrant on February 28,
2003, she nevertheless denied complainants motion for reconsideration
relative to the Order dated November 2002 denying the motion for
inhibition;
(7) Respondent Judge exhibited partiality and malevolent attitude when she
did not only deny all remedies available to complainant but also uttered
hostile side-comments during hearings and even commented that
complainant was overly fond of filing motions. [1]
In her comment, respondent Judge refuted the charges in this wise:
(1) She did not consider the omnibus motion dated May 7, 2002 filed by
complainant because its notice of hearing was addressed to the Public

Prosecutor, for which reason, she issued the warrant of arrest on May 23,
2003;
(2) She issued the order dated June 25, 2002 deferring the resolution of
complainants very urgent motion to set the case for hearing in view of
the resolution of the Court of Appeals dated June 14, 2002, enjoining her
from enforcing the warrant of arrest issued against complainant;
(3) Since the trial court had not yet acquired jurisdiction over the person of the
complainant when the court received the motion to set the case for trial
filed by Asst. City Prosecutor, she again issued a warrant of arrest
against complainant;
(4) Respondents issuance of warrant of arrest against complainant on May 23,
2002, despite the filing of the omnibus motion and the motion to set the
omnibus motion for hearing, was sustained by the Court of Appeals in its
decision dated August 14, 2002, dismissing complainants petition;
(5) Inasmuch as the trial court has not acquired jurisdiction over the person of
the complainant, respondent, after the Court of Appeals denied
complainants petition and lifted the 60-day TRO, ordered the issuance of
a warrant of arrest against complainant;
(6) Since it was only on October 17, 2002 that the bail posted by complainant
on September 26, 2002 for his provisional liberty before the Executive
Judge of RTC, Makati, was received by respondent court, she could not
resolve the motion for inhibition considering that the court has not
acquired jurisdiction over his person;
(7) Complainant is to blame for the delay in the resolution of his motions
because of his penchant in filing defective motions and for not
immediately submitting himself to the jurisdiction of the court;
(8) The issuance of a warrant of arrest and confiscation of the bond of
complainant on January 22, 2003 was in accordance with Sec. 21, Rule
114 of the Revised Rules on Criminal procedure in view of complainants
failure to appear despite notice to him and his bondsman. The notice of
change of address filed by complainant pertains to the change of address
of his counsel and not to himself, hence, court processes were sent to his
alleged old address. Moreover, Produce Orders of the December 11,

2002 and January 22, 2003 settings were sent to complainants


bondsman, but this notwithstanding, complainants bondsman failed to
produce him in court and it even filed a motion of extension of time to
do so;
(9) Complainants claim of bias and partiality on the part of respondent in
denying complainants motion for reconsideration and motion to inhibit is
baseless and unfounded considering that the assailed orders of the
respondent were made on the basis of law and facts of the case. [2]
On August 8, 2003, the Office of the Court Administrator submitted its
recommendation for the dismissal of the complaint for lack of merit.
We have closely scrutinized the arguments of the contending parties and
find the charges filed against respondent are baseless.
The Information was filed on May 7, 2002 while the warrant of arrest was
issued May 23, 2003. When complainant filed the omnibus motion on May 7,
2002, the court has not yet acquired jurisdiction over his person. With the filing
of Information, the trial court could then issue a warrant for the arrest of the
accused as provided for by Section 6 of Rule 112 of the Revised Rules on
Criminal Procedure. The issuance of the warrant was not only procedurally
sound but it was even required considering that respondent had yet to acquire
jurisdiction over the person of complainant. Consequently, complainants
charge that respondent Judge failed to act on the omnibus motion before
issuing the arrest warrant is untenable. Whether respondent correctly
disregarded the omnibus motion in view of the alleged fatal defects is a
judicial matter, which is not a proper subject in an administrative proceeding. It
bears noting that respondent court immediately deferred the execution of the
warrant of arrest upon issuance by the Court of Appeals of the TRO.
Incidentally, although the Court of Appeals issued a temporary restraining
order, it eventually sustained the issuance by respondent of the arrest warrant
and dismissed the petition for certiorari.
Neither can we ascribe partiality nor grave abuse of authority on the part
of respondent for issuing anew an alias warrant after the expiration of the
Court of Appeals 60-day TRO. With the lifting of the retraining order, no legal
obstacle was left for the issuance of the arrest warrant and thus set in motion

the stalled prosecutorial process by acquiring jurisdiction over the person of


the accused.
Complainant blames the respondent for his failure to appear at his
arraignment because the notice was sent to the wrong address despite a prior
notice for change of address. A cursory reading of the notice of change of
address will show that it pertains to the counsels residence, not to the
complainants. In view of this, it becomes reasonable for the court to assume
that court processes could be sent to complainants old and unchanged
residence. As correctly pointed out by respondent Judge, the Produce Order
of the December 11, 2002 andJanuary 22, 2003 settings were sent to
complainants bondsman. Hence, in accordance with Sec. 21, Rule 114 of the
Revised Rules of Court, his bondsman must produce him before the court on
the given date and failing to do so; the bond was forfeited as it was.
On the matter of respondents denial of the motion for inhibition, suffice it to
say that the issue of whether a judge should voluntarily inhibit himself is
addressed to his sound discretion pursuant to paragraph 2 of Section 1 of
Rule 137, which provides for the rule on voluntary inhibition and states: a
judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for a just or valid reasons other than those abovementioned. Taking together all the acts and conduct of respondent Judge
relative to complainants case, we believe that she did not exhibit any bias or
partiality to warrant her voluntarily inhibition from the case. Curiously, while
complainant decries the alleged respondents predilection for denying all his
motions, he himself conceded that respondent Judge has done everything
pursuant to law and jurisprudence.[3] Bias and partiality cannot be presumed,
for in administrative proceedings no less than substantial proof is required.
Apart from bare allegations, there must be convincing evidence to show that
respondent Judge is indeed biased and partial. In administrative proceedings,
the burden of proof that respondent Judge committed the act complained of
rests on the complainant.[4] Complainant failed to discharge this burden.
WHEREFORE, in view of the foregoing, the Court resolves to adopt the
recommendation of the Court Administrator, and accordingly, DISMISS the
instant complaint for lack of merit.
SO ORDERED.

G.R. No. 162416

January 31, 2006

CHESTER DE JOYA, Petitioner,


vs.
JUDGE PLACIDO C. MARQUEZ, in his capacity as Presiding Judge of Branch 40, Manila-RTC,
PEOPLE OF THE PHILIPPINES and THE SECRETARY OF THE DEPARTMENT OF
JUSTICE, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari and prohibition that seeks the Court to nullify and set aside the warrant
of arrest issued by respondent judge against petitioner in Criminal Case No. 03-219952 for violation
of Article 315, par. 2(a) of the Revised Penal Code in relation to Presidential Decree (P.D.) No. 1689.
Petitioner asserts that respondent judge erred in finding the existence of probable cause that justifies
the issuance of a warrant of arrest against him and his co-accused.
Section 6, Rule 112 of the Revised Rules of Criminal Procedure provides:
Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10)
days from the filing of the complaint or information, the judge shall personally evaluate the resolution
of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused has already been arrested pursuant
to a warrant issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional evidence

within five (5) days from notice and the issuance must be resolved by the court within thirty (30) days
from the filing of the complaint or information.
x x x1
This Court finds from the records of Criminal Case No. 03-219952 the following documents to
support the motion of the prosecution for the issuance of a warrant of arrest:
1. The report of the National Bureau of Investigation to Chief State Prosecutor Jovencito R.
Zuo as regards their investigation on the complaint filed by private complainant Manuel Dy
Awiten against Mina Tan Hao @ Ma. Gracia Tan Hao and Victor Ngo y Tan for syndicated
estafa. The report shows that Hao induced Dy to invest more than a hundred million pesos in
State Resources Development Management Corporation, but when the latters investments
fell due, the checks issued by Hao in favor of Dy as payment for his investments were
dishonored for being drawn against insufficient funds or that the account was closed. 2
2. Affidavit-Complaint of private complainant Manuel Dy Awiten.3
3. Copies of the checks issued by private complainant in favor of State Resources
Corporation.4
4. Copies of the checks issued to private complainant representing the supposed return of
his investments in State Resources.5
5. Demand letter sent by private complainant to Ma. Gracia Tan Hao. 6
6. Supplemental Affidavit of private complainant to include the incorporators and members of
the board of directors of State Resources Development Management Corporation as
participants in the conspiracy to commit the crime of syndicated estafa. Among those
included was petitioner Chester De Joya.7
7. Counter-Affidavits of Chester De Joya and the other accused, Ma. Gracia Hao and Danny
S. Hao.
Also included in the records are the resolution issued by State Prosecutor Benny Nicdao finding
probable cause to indict petitioner and his other co-accused for syndicated estafa, 8 and a copy of the
Articles of Incorporation of State Resources Development Management Corporation naming
petitioner as incorporator and director of said corporation.
This Court finds that these documents sufficiently establish the existence of probable cause as
required under Section 6, Rule 112 of the Revised Rules of Criminal Procedure. Probable cause to
issue a warrant of arrest pertains to facts and circumstances which would lead a reasonably discreet
and prudent person to believe that an offense has been committed by the person sought to be
arrested. It bears remembering that "in determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of our technical rules of evidence of which his
knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men
have an abundance."9 Thus, the standard used for the issuance of a warrant of arrest is less
stringent than that used for establishing the guilt of the accused. As long as the evidence presented

shows a prima facie case against the accused, the trial court judge has sufficient ground to issue a
warrant of arrest against him.
The foregoing documents found in the records and examined by respondent judge tend to show that
therein private complainant was enticed to invest a large sum of money in State Resources
Development Management Corporation; that he issued several checks amounting
to P114,286,086.14 in favor of the corporation; that the corporation, in turn, issued several checks to
private complainant, purportedly representing the return of his investments; that said checks were
later dishonored for insufficient funds and closed account; that petitioner and his co-accused, being
incorporators and directors of the corporation, had knowledge of its activities and transactions.
These are all that need to be shown to establish probable cause for the purpose of issuing a warrant
of arrest. It need not be shown that the accused are indeed guilty of the crime charged. That matter
should be left to the trial. It should be emphasized that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty, of guilt of an accused. Hence, judges
do not conduct a de novo hearing to determine the existence of probable cause. They just personally
review the initial determination of the prosecutor finding a probable cause to see if it is supported by
substantial evidence.10 In case of doubt on the existence of probable cause, the Rules allow the
judge to order the prosecutor to present additional evidence. In the present case, it is notable that
the resolution issued by State Prosecutor Benny Nicdao thoroughly explains the bases for his
findings that there is probable cause to charge all the accused with violation of Article 315, par. 2(a)
of the Revised Penal Code in relation to P.D. No. 1689.
The general rule is that this Court does not review the factual findings of the trial court, which include
the determination of probable cause for the issuance of warrant of arrest. It is only in exceptional
cases where this Court sets aside the conclusions of the prosecutor and the trial judge on the
existence of probable cause, that is, when it is necessary to prevent the misuse of the strong arm of
the law or to protect the orderly administration of justice. The facts obtaining in this case do not
warrant the application of the exception.
lavvph!l.ne+

In addition, it may not be amiss to note that petitioner is not entitled to seek relief from this Court nor
from the trial court as he continuously refuses to surrender and submit to the courts jurisdiction.
Justice Florenz D. Regalado explains the requisites for the exercise of jurisdiction and how the court
acquires such jurisdiction, thus:
x x x Requisites for the exercise of jurisdiction and how the court acquires such jurisdiction:
a. Jurisdiction over the plaintiff or petitioner: This is acquired by the filing of the complaint,
petition or initiatory pleading before the court by the plaintiff or petitioner.
b. Jurisdiction over the defendant or respondent: This is acquired by the voluntary
appearance or submission by the defendant or respondent to the court or by coercive
process issued by the court to him, generally by the service of summons.
c. Jurisdiction over the subject matter: This is conferred by law and, unlike jurisdiction over
the parties, cannot be conferred on the court by the voluntary act or agreement of the
parties.
d. Jurisdiction over the issues of the case: This is determined and conferred by the pleadings
filed in the case by the parties, or by their agreement in a pre-trial order or stipulation, or, at

times by their implied consent as by the failure of a party to object to evidence on an issue
not covered by the pleadings, as provided in Sec. 5, Rule 10.
e. Jurisdiction over the res (or the property or thing which is the subject of the litigation). This
is acquired by the actual or constructive seizure by the court of the thing in question, thus
placing it in custodia legis, as in attachment or garnishment; or by provision of law which
recognizes in the court the power to deal with the property or subject matter within its
territorial jurisdiction, as in land registration proceedings or suits involving civil status or real
property in the Philippines of a non-resident defendant.
Justice Regalado continues to explain:
In two cases, the court acquires jurisdiction to try the case, even if it has not acquired jurisdiction
over the person of a nonresident defendant, as long as it has jurisdiction over the res, as when the
action involves the personal status of the plaintiff or property in the Philippines in which the
defendant claims an interest. In such cases, the service of summons by publication and notice to the
defendant is merely to comply with due process requirements. Under Sec. 133 of the Corporation
Code, while a foreign corporation doing business in the Philippines without a license cannot sue or
intervene in any action here, it may be sued or proceeded against before our courts or administrative
tribunals.11
Again, there is no exceptional reason in this case to allow petitioner to obtain relief from the courts
without submitting to its jurisdiction. On the contrary, his continued refusal to submit to the courts
jurisdiction should give this Court more reason to uphold the action of the respondent judge. The
purpose of a warrant of arrest is to place the accused under the custody of the law to hold him for
trial of the charges against him. His evasive stance shows an intent to circumvent and frustrate the
object of this legal process. It should be remembered that he who invokes the courts jurisdiction
must first submit to its jurisdiction.
WHEREFORE, the petition is DISMISSED.
No costs.
SO ORDERED.

G.R. No. L-27511

November 29, 1968

IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS, SIMON


LUNA, petitioner-appellant,
vs.
HON. LORENZO M. PLAZA, as Judge of the Municipal Court of Tandag, Surigao del Sur; HON.
SANTOS B. BEBERINO as Provincial Fiscal of Surigao del Sur; and THE PROVINCIAL
WARDEN of Surigao del Sur,respondents- appellees.
Sisenando Villaluz and Juan T. David for petitioner-appellant.
Office of the Assistant Solicitor General Pacifico P. de Castro and Solicitor Augusto M. Amores for
other respondents-appellees.
Provincial Fiscal Santos B. Beberno in his own behalf as respondent-appellee.
ZALDIVAR, J.:
Appeal from the decision of the Court of First Instance of Surigao del Sur, dated April 20, 1967,
dismissing the petition for a writ of habeas corpus, filed by herein petitioner-appellant Simon Luna

hereinafter referred to simply as petitioner who was charged with murder in Criminal Case No.
655-New of the same court.
The criminal action was commenced by T-Sgt. Candido Patosa, PC investigator of Tandag, Surigao
del Sur, by filing with respondent Municipal Judge Lorenzo M. Plaza, of the Municipal Court of
Tandag, criminal case No. 1138 charging the accused, herein petitioner, with the crime of murder.
Supporting the complaint were sworn statements of the witnesses for the prosecution, in the form of
questions and answers taken by T-Sgt. Patosa, and subscribed and sworn to before the respondent
Judge at the time of the filing of the complaint. The respondent Judge examined the prosecution
witnesses by reading to them "all over again the questions and answers" in their statements in
writing, and the witnesses-affiants declared before said Judge that the questions were propounded
by T-Sgt. Candido Patosa, and that the answers were made by them. The affiants further declared
before respondent Judge that their answers were true, and were freely and voluntarily made; that
they fully understood the questions and answers, and that they were willing to sign their respective
affidavits. The affiants signed their respective affidavits in the presence of the respondent Judge,
who also signed after the usual procedure of administering the oath.
Considering the answers of the affiants to the questions contained in their sworn statements,
together with the post-mortem and autopsy report on the dead body of the victim Jaime Diaz Ng, the
certificate of death, the sketch showing the position of the victim and the accused, and Exhibits 6, 7,
8, 12, and 13 of herein respondents, the respondent Judge opined that there was reasonable ground
to believe that the crime of murder had been committed and the accused was probably guilty
thereof. Respondent Judge issued the order and warrant of arrest, specifying therein that no bail
should be accepted for the provisional release of the accused. On February 20, 1967, upon motion
of petitioner that he be admitted to bail upon the ground that the evidence of guilt was not strong,
respondent Judge issued an order granting bail, fixing it at P30,000.00; which order, however,
respondent Judge later revoked, and petitioner was denied bail.
The case was subsequently remanded to the Court of First Instance of Surigao del Sur, after
petitioner filed a waiver of his right to preliminary investigation. On March 9, 1967 respondent
Provincial Fiscal filed an information charging herein petitioner with the crime of murder. The
petitioner was detained in the provincial jail of Surigao del Sur under the custody of respondent
Provincial Warden.
On April 5, 1967, petitioner filed a petition for a writ of habeas corpus with the Court of First Instance
of Surigao del Sur, therein docketed as Special Proceedings No. 105-New, claiming that he was
being deprived of liberty without the due process of law, on the ground that the imprisonment and
detention was the result of a warrant of arrest issued by respondent Judge in violation of Republic
Act No. 3828, and praying for the annulment of the order for his arrest and his discharge from
confinement.
Herein respondents filed their answer, alleging that Republic Act No. 3828 had been substantially
complied with; that a motion to quash, and not a petition for habeas corpus was the proper remedy;
and that petitioner's application for bail constituted a waiver of the right to question the validity of the
arrest.
After trial, the Court of First Instance of Surigao del Sur rendered its decision, dated April 20, 1967,
holding that respondent Municipal Judge had substantially complied with Republic Act No. 3828, and

consequently denied the application for the writ of habeas corpus, and dismissed the case. Hence
this appeal.
Petitioner, in his assignment of errors, claims that the trial court erred, as follows:
1. In giving absolute credence to the oral testimony of the respondent Judge to the effect that
he adopted and made his own the questions and answers taken by T-Sgt. Patosa, PC
Investigator, one of the prosecution witnesses, because the records show the contrary;
2. In denying the writ of habeas corpus and in dismissing the petition.
1. In support of his first assignment of error, petitioner contends that Republic Act No. 3828 imposes
on a municipal judge, before he can issue a warrant of arrest, two specific duties, to wit: (1)
personally examine the complainant and witnesses with "searching questions and answers", which
means that the judge must cross-examine them in case their affidavits are presented; and (2) said
examination must be reduced to writing and form part of the records of the case. The record of the
instant case, according to petitioner, does not show said examination was performed by respondent
Judge. Petitioner urges that the absence of any document in the record that shows that respondent
Judge had performed the examination is positive proof that respondent Judge did not perform his
duty, notwithstanding his testimony before the Court of First Instance of Surigao del Sur, during the
hearing of this case, to the effect that he adopted the questions propounded to each of the
prosecution witnesses by T-Sgt. Patosa. Petitioner maintains that this testimony, being self-serving
intended to cover up the failure to comply with the law, should not have been believed by the Court
of First Instance, and said court thereby committed errors when, believing said testimony, it found
that there had been substantial compliance with the requirement that the municipal judge should
personally examine the witnesses. Petitioner further maintains that assuming that the adoption of the
questions made by T-Sgt. Patosa constituted substantial compliance with the requirement that the
judge should examine the witnesses by asking searching questions, still the second requirement,
that of reducing to writing the said procedure of adoption, has not been complied with; and so,
Republic Act No. 3828 was still violated, and the issuance of the warrant of arrest was in violation of
said Act and the Constitution and constituted denial of due process.
Petitioner contends that the trial court erred in giving absolute credence to the testimony of
respondent Municipal Judge. Regarding credibility of witnesses, this Court has consistently held that,
as a general rule, the lower court's findings as to the credibility of witnesses will not be interfered
with by appellate courts. Thus, in the case of People vs. Sinaon1 this Court said:
Time and again, we have held that as a rule where the issue is one of credibility of
witnesses, appellate courts will not generally disturb the findings of the trial court,
considering that it is in a better position to decide the question, having seen and heard the
witnesses themselves and observed their deportment and manner of testifying during the
trial, unless there is a showing that it has overlooked certain facts of substance and value,
that if considered, might affect the result of the case.
Petitioner has appealed "from the decision/order" of the trial court "to the Honorable Supreme Court
of the Philippines, on the ground that the same is contrary to law and the Philippine Constitution" and
prayed that "all the records of the proceeding and the evidence, oral and documentary, be
transmitted or forwarded to the Honorable Supreme Court ...". 2 Since petitioner appealed directly to
this Court he must, therefore, raise only questions of law and he has thereby waived the right to

raise any question of fact,3 and the findings of facts of the trial court, under the rules and precedents,
must be deemed final and binding upon this Court. 4
The findings of facts of the trial court are found in the following portion of the decision appealed from,
to wit:
There is no dispute that there is a valid complaint charging the accused Simon Luna, the
herein petitioner with the crime of Murder filed with the respondent Judge authorized to
conduct the examination of the witnesses for the prosecution for the purpose of determining
the existence of probable cause before the issuance of the corresponding warrant of arrest;
that the complaint is supported by the statements of the witnesses under oath in writing in
the form of questions and answers and other documents attached to the complaint; that
before the issuance of the corresponding warrant of arrest, the respondent judge personally
examined the witnesses for the prosecution on their statements taken by T-Sgt. Candido
Patosa by reading the questions and answers all over again to the affiants who confirmed to
the respondent Judge that the statements contained in their sworn statements are true; that
being satisfied that the questions and answers contained in the sworn statements taken by
T-Sgt Patosa partake of the nature of his searching questions and answers as required by
law, the respondent Judge adopted them as his own personal examination of the witnesses
for the purpose of determining the existence of probable cause, the order and the warrant of
arrest were issued to take the accused into custody for the commission of the offense
charged (Exhibits "H", "H-1", "I", and "I-1"-petitioner); and that the petitioner waived his right
to the preliminary investigation (Exhibit "12"-respondent) and applied to be admitted to bail.
Petitioner, however, claims that the failure of respondent Judge to put in writing that he adopted the
questions asked by T-Sgt. Patosa and his failure to ask "searching questions" violated Republic Act
No. 3828.
Republic Act No. 3828, approved June 22, 1963, inserted in section 87 (e) of the Judiciary Act of
1948 the following paragraph:
No warrant of arrest shall be issued by any justice of the peace in any criminal case filed with
him unless he first examines the witness or witnesses personally, and the examination shall
be under oath and reduced to writing in the form of searching questions and answers.
Before a municipal judge may issue a warrant of arrest, the following conditions must first be fulfilled:
(1) he must examine the witnesses personally; (2) the examination must be under oath; (3) the
examination must be reduced to writing in the form of searching questions and answers. Were these
conditions fulfilled in the instant case?
The first condition was fulfilled. The trial court found as a fact that "the respondent judge personally
examined the witnesses for the prosecution ...;" that respondent judge adopted as his own personal
examination the questions asked by T-Sgt. Patosa as appearing in the written statements, which he
read over again to the witnesses together with the answers given therein, asking the witnesses
whether said answers were theirs, and whether the same answers were true, to which the witness
answered in the affirmative. Republic Act No. 3828 does not prohibit the municipal Judge from
adopting the questions asked by a previous investigator.

It appears that the sworn statements5 of the witnesses state at the beginning that the sworn
statement was "taken by T-Sgt. Candido L. Patosa", and does not state that it was taken by the
respondent municipal Judge himself. This circumstance is explained by the fact that said written
statements already taken by T-Sgt. Patosa were delivered to respondent Municipal Judge who
adopted the questions therein in his examination, because he considered them searching questions.
Respondent Judge presumably did not consider it necessary to change the introductory remarks in
each of the written statements. But that he made the examination personally cannot be doubted; it is
so stated in the order dated February 18, 1967, which recites:
After examining the witness personally and under oath there is reasonable ground to believe
that an offense for murder has been committed and that the accused, Simon Luna, is
probably guilty thereof. (Exh. H)
The ruling in Doce vs. Branch II of the Court of First Instance of Quezon, et al.,6 wherein this Court
held that the warrant of arrest issued therein was irregularly issued is not applicable to the case at
bar for the simple reason that the facts are different. This Court in that case said:
There is merit in the assertion that the warrant of arrest was irregularly issued. Section 87 of
the Judiciary Act as amended by Republic Act 3828 requires that the Municipal Judge
issuing the same, personallyexamine under oath the witnesses, and by searching questions
and answers which are to be reduced to writing. Here, instead of searching questions and
answers, we have only the affidavits of respondent and her one witness. Moreover, said
affidavits were sworn to before Judge Cabungcal, not before Judge Juntereal who issued the
warrant of arrest.
In the instant case, as stated above, the respondent Municipal Judge personally examined under
oath the witnesses by asking questions, that were adopted from a previous investigation, and
considered by him as sufficiently searching and which questions and the answers thereto were in
writing and sworn to before him prior to his issuance of the order of arrest.
The second condition required by Republic Act No. 3828 for the issuance of a warrant of arrest was
also fulfilled. The trial court found that the complaint was "supported by statements of the witnesses
under oath." The record also shows the following documents to have been subscribed and sworn to
before respondent Judge, namely: Exhibit B, sworn statement of herein petitioner Simon Luna y
Albay; Exhibit C, sworn statement of Eusebio Corpuz; Exhibit D, sworn statement of Bruno M. Zafra;
Exhibit E, sworn statement of Martiliano J. Bautista; Exhibit F, sworn statement of Janedina Diaz y
Bandoy.
The third condition required by Republic Act No. 3828 was likewise fulfilled. The examination of the
witnesses was written down, in the form of searching questions and answers. The term "searching
questions and answers" means only, taking into consideration the purpose of the preliminary
examination which is to determine "whether there is a reasonable ground to believe that an offense
has been committed and the accused is probably guilty thereof so that a warrant of arrest may be
issued and the accused held for trial",7 such questions as have tendency to show the commission of
a crime and the perpetrator thereof. What would be searching questions would depend on what is
sought to be inquired into, such as: the nature of the offense, the date, time, and place of its
commission, the possible motives for its commission; the subject, his age, education, status,
financial and social circumstances, his attitude toward the investigation, social attitudes,
opportunities to commit the offense; the victim, his age, status, family responsibilities, financial and

social circumstances, characteristics, etc. The points that are the subject of inquiry may differ from
case to case. The questions, therefore, must to a great degree depend upon the Judge making the
investigation. At any rate, the court a quo found that respondent judge was "satisfied that the
questions and answers contained in the sworn statements taken by T-Sgt. Patosa partake of the
nature of his searching questions and answers as required by law," so the respondent Judge
adopted them.
Petitioner's further contention that the issuance of the warrant of arrest was a violation of the
constitution and of procedural due process is likewise untenable. The Constitution, in Section 1(3),
Article III, provides that no warrant shall issue but upon probable cause, to be determined by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce. The constitutional requirement of examination of witnesses under oath was, as shown
above, fulfilled. The existence of probable cause depended to a large degree upon the finding or
opinion of the judge conducting the examination. Respondent judge found that there was probable
cause, as stated in his order of arrest, that "after examining the witnesses personally and under oath
there is a reasonable ground to believe that an offense of murder has been committed and that the
accused, Simon Luna, is probably guilty thereof."
Petitioner's last contention that the warrant of arrest issued was a violation of procedural due
process because of the alleged defective preliminary examination has no leg to stand on, in view of
what we have hereinbefore stated. Moreover, this Court has held that preliminary examination is not
an essential part of due process of law.8Preliminary examination may be conducted by the municipal
judge, prior to the issuance of the warrant of arrest, either in the presence, or in the absence, of the
accused. The record shows that herein petitioner waived the preliminary investigation before
respondent Municipal Judge, and instead, he filed a petition for bail. The petition for bail was at first
granted by respondent Judge, but later the order granting bail was revoked. This conduct of
petitioner indicates that he had waived his objection to whatever defect, if any, in the preliminary
examination conducted by respondent Judge prior to the issuance of the warrant of arrest. Indeed,
petitioner has no substantial much less legal ground to complain that he was denied the due
process of law.
We find that the trial Judge committed no error when he held that, based upon the facts shown
during the hearing of this case, respondent Municipal Judge had substantially complied with the
requirements of the law specifically Republic Act 3828 before issuing the warrant of arrest in
this case.
2. In the light of what has been said above, it appears clear that petitioner's second assignment of
error, that the trial court erred in denying the writ of habeas corpus, is untenable. Moreover, Section
4 of Rule 102; of the Rules of Court provides in part, as follows:
SEC. 4. When writ not allowed or discharge authorized. If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process issued by a
court or judge ... and that the court or judge had jurisdiction to issue the process ... or make
the order the writ, shall not be allowed....
All the conditions, in the afore-quoted Section 4, set forth to deny the writ, are present in the instant
case. It is shown that petitioner is detained and is in the custody of the respondent Provincial
Warden by virtue of the order of arrest dated February 18, 1967, and the order dated February 21,
1967, of respondent Judge, to confine petitioner in the provincial jail. It is not disputed by petitioner

that respondent Judge had jurisdiction to issue the warrant of arrest and the order of commitment
under the provisions of Section 47, Republic Act No. 409, as amended by Republic Act No. 1201,
although petitioner did question the validity of the warrant of arrest for allegedly having been issued
in violation of Republic Act No. 3828 which claim We have found to be untenable. Consequently,
the trial Judge did not commit an error in denying the writ of habeas corpus prayed for.
At any rate, we believe that, if at all, the remedy available to the petitioner herein, under the
circumstances stated in this opinion, is not a petition for a writ of habeas corpus but a petition to
quash the warrant of arrest or a petition for a reinvestigation of the case by the respondent Municipal
Judge or by the Provincial Fiscal.
We wish to stress, however, that what has been stated in this opinion is certainly not intended to
sanction the return to the former practice of municipal judges of simply relying upon affidavits or
sworn statements that are made to accompany the complaints that are filed before them, in
determining whether there is a probable cause for the issuance of a warrant of arrest. That practice
is precisely what is sought to be voided by the amendment of Section 87 (c) of Republic Act 296
(Judiciary Act of 1948) which requires that before a municipal judge issues a warrant of arrest he
should first satisfy himself that there is a probable cause by examining the witnesses personally, and
that the examination must be under oath and reduced to writing in the form of searching questions
and answers. It is obvious that the purpose of this amendment is to prevent the issuance of a
warrant of arrest against a person based simply upon affidavits of witnesses who made, and swore
to, their statements before a person or persons other than the judge before whom the criminal
complaint is filed. We wish to emphasize strict compliance by municipal or city judges of the
provision of Section 87 (c) of the Judiciary Act of 1948, as amended by Republic Act 3828, in order
to avoid malicious and/or unfounded criminal prosecution of persons. 9
In the case now before Us, while it is true that the respondent Municipal Judge did not himself
personally cause to be reduced to writing in the form of questions and answers the examination of
witnesses presented before him by the person who filed the criminal complaint, We are satisfied that,
as shown by the evidence, respondent Judge had personally examined the witnesses under oath
and that the questions asked by the Judge and the answers of the witnesses were reflected in
writings which were actually subscribed and sworn to before him. Moreover, We are of the
considered view that no substantial right of the petitioner had been violated because, as
hereinbefore adverted to, petitioner waived his right to preliminary investigation after he was
arrested, and he took the step of applying for bail before respondent Municipal Judge. These acts of
the petitioner subsequent to his arrest, constitute an implied admission on his part that here was a
probable cause for the issuance of the warrant of arrest against him. Those acts of the petitioner
constitute a waiver of whatever irregularity, if any there was, that attended his arrest. 10
WHEREFORE, the decision of the trial court dated April 20, 1967, appealed from, is affirmed. Costs
against petitioner-appellant. It is so ordered.
Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Fernando and Capistrano, JJ., concur.
Reyes, J.B.L., J., concurs in the result.

ELISEO ALIMPOOS, CIRIACA ALIMPOOS, SGT. MILLARDO M. PATES, PEDRO


BACLAY, CATALINO YAMILO, RAFAEL CAPANGPANGAN, DALMACIO YGOT and
EUFROCINA ESTORES, Petitioners, vs. THE HONORABLE COURT OF APPEALS,
HONORABLE JUDGE MONTANO A. ORTIZ, REYNALDO MOSQUITO and MATILDE
ABASTILLAS MOSQUITO, Respondents.
DECISION
MELENCIO-HERRERA, J.:
Petitioner-spouses, Eliseo Alimpoos and Ciriaca Alimpoos, shall hereinafter be called the
Offended Parties. Petitioners Pedro Baclay, Catalino Yamilo, Rafael Capangpangan, Dalmacio
Ygot, Eufrocina Estores and Sgt. Millardo M. Pates may hereinafter be referred to as the
Witnesses.
Respondent Reynaldo Mosquito will hereinafter be called the Accused. Respondent Matilde A.
Mosquito is the Accuseds wife. Respondent Court of Appeals will be termed the Appellate
Tribunal; respondent Judge Montano A. Ortiz, as respondent Trial Judge, and the Municipal
Judge, as such.
In this Petition for Certiorari, the Offended Parties and the Witnesses seek the reversal of
the Decision of the Appellate Tribunal, upholding the disallowance of the Offended Parties
appeal by the Court of First Instance of Agusan (the Trial Court, for short) in Civil Case No.
1088, entitled Reynaldo Mosquito, et al. vs. Eliseo Alimpoos, et al, wherein respondent
Trial Judge granted the Accuseds petition for Habeas Corpus and declared his detention
illegal. He also enjoined the prosecution of Criminal Case No. 458 of the Municipal Court of
Bayugan, Agusan (hereinafter called Criminal Case) where the Accused had been arrested.
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The Accused was detained by the Chief of Police of Bayugan, Agusan, by virtue of a Warrant
of Arrest issued by the Municipal Judge in the Criminal Case, which was a prosecution for
Robbery with Less Serious Physical Injuries. The place allegedly robbed belonged to the
Offended Parties. Contending that the Warrant was issued without the observance of the
legal requirements for the issuance thereof, the Accused, then detained, and his wife
instituted the Habeas Corpus case before the Trial Court. Named as defendants in the
original complaint were the Offended parties and the Witnesses (as witnesses for the
prosecution) all of whom are residents of Agusan. In an amended complaint, the two
arresting policemen, the Chief of Police, and the Municipal Judge were added as codefendants.
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The Complaint of the Accused was premised on the alleged violation of Article
32 (4), (8), (15), (16), (17) and (19) of the Civil Code, and Article 269 of the Revised
Penal Code, by defendants therein who were said to have been instrumental in causing the
detention and arrest of the Accused. It prayed for the Accuseds release from detention, as
well as for the issuance of a Writ of Preliminary Injunction to enjoin the Offended Parties
and the Witnesses, and the Municipal Judge and/or their representatives, from proceeding
with the Criminal Case. Actual, moral and exemplary damages, attorneys fees, and costs
were also prayed for.
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The Offended Parties and the Witnesses, except Sgt. Pates, were represented by the law
firm of Seno, Mendoza and Associates, with offices located in Cebu City. They contended
that they had nothing to do with the Accuseds detention and arrest. The Municipal Judge,

the Chief of Police, and Patrolmen Libres and Galimba, who were represented by the Acting
Provincial Fiscal of Butuan City, alleged that the Warrant of Arrest was validly issued. Sgt.
Pates was represented by Capt. Igualdad Cunanan, and reiterated substantially the same
defense.
After due hearing in the Habeas Corpus case, respondent Trial Judge issued the appealed
Order (the ORDER, for short), dated March 26, 1966, declaring the detention of the
Accused illegal and granting the Writ of Habeas Corpus as well as the Preliminary Injunction
prayed for upon the filing of the required bond. The dispositive portion of the ORDER reads:
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WHEREFORE, judgment is hereby rendered declaring illegal the detention of plaintiff


Reynaldo Mosquito by virtue of a warrant of arrest issued without the observance of
the fundamental legal requirements prior to the issuance of said Writ. The petition
for habeas corpus is therefore granted and it is hereby ordered that said detention
prisoner be forthwith released from custody, and set at liberty and that upon the
filing of the bond in the amount of P1,000.00 a writ of preliminary injunction issue
restraining the Municipal Judge of Bayugan, Agusan, defendant Vicente Galicia and
the rest of the defendants, their attorneys, agents or representatives from
proceeding with Criminal Case No. 458 entitled The People of the Philippines versus
Reynaldo Mosquito et als., for the crime of Robbery with Less Serious Physical
Injuries, with costs against the defendants in these habeas corpus and preliminary
injunction proceedings.
SO ORDERED. 1
The Acting Provincial Fiscal of Agusan received copy of said ORDER on March 31, 1966, and
on April 1, 1966, moved for extension of time within which to appeal, but eventually
desisted from doing so.
On April 4, 1966, counsel for the Offended Parties and the Witnesses mailed from Cebu City
a Notice of Appeal to the Court of Appeals stating that:
Undersigned counsel received a copy of the order only today (April 4, 1966) which
copy was handed to him by defendant (petitioner) Eliseo Alimpoos.
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The appeal was opposed by the Accused on the ground that it was filed beyond the 48-hour
reglementary period within which to perfect an appeal in Habeas Corpus proceedings.
On April 23, 1966, over the Offended Parties objections, respondent Trial Judge dismissed
their appeal thus:
The notice of appeal of the Provincial Fiscal or of Atty. Seno for the defendants,
having been filed out of time the Order of March 26, 1966 granting the habeas
corpus is now final and executory. The urgent ex-parte motion to grant extension to
file notice of appeal does not interrupt the running of the period fixed by law for filing
an appeal which is forty-eight hours from receipt of the order. 2
No reconsideration was prayed for by the Provincial Fiscal.
The Offended Parties, however, resorted to a Mandamus proceeding before the Court of
Appeals seeking to compel respondent Trial Judge to give due course to said appeal.
On January 11, 1967, the Appellate Tribunal, 3 in CA-G.R. No. 37781-R, denied Mandamus
stating in part:
As the records show that copy of the questioned Order was received by counsel on
March 30, 1966, the notice of appeal was not filed within the 48-hour limit.
Petitioners appeal was therefore filed out of time and the judgment has become
final.

In view of the foregoing, this petition is hereby denied. Costs against petitioners.
Hence, this Petition for Certiorari, filed on March 13, 1967, praying that the Decision of the
Appellate Tribunal be set aside and the appeal interposed by the Offended Parties in the
Habeas Corpus case be allowed.
We gave due course to the Petition on March 31, 1967, and after the filing of the respective
Briefs, the case was considered submitted for decision on April 19, 1968.
The Offended Parties and the Witnesses pose the following Assignments of Error:
I
The Honorable Court of Appeals erred in finding that counsel, however, has not
presented a shred of proof to bolster his claim of actual receipt of the order, Annex
B on April 4, 1966, save of his own self-serving assertions, which cannot prevail
over the court record, (Annex 1 of Answer) certified to by the Clerk of Court,
bearing the true actual date when the parties and counsel herein received their
corresponding copies. The same certified true copy of the order shows that the law
office of herein counsel received its copy on March 30, 1966 not on April 4, 1966;
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II
The Honorable Court of Appeals erred in holding that respondent Judge was fully
justified in relying on its own record to determine the date on which petitioners
counsel received copy of the order, without any proof thereof, because courts will
take judicial notice of its records and of the facts which the same records establish
and which are known to judges by reason of their judicial functions.
III
The Honorable Court of Appeals erred in finding that as the records show that copy
of the questioned order was received by counsel on March 30, 1966, the notice of
appeal was not filed within the 48-hour limit.
IV
The Honorable Court of Appeals erred in finding that petitioners appeal was,
therefore, filed out of time and the judgment has become final.
V
The Honorable Court of Appeals erred in denying the Motion for Reconsideration
without requiring the adverse party to answer the said Motion for Reconsideration.
VI
The Honorable Court of Appeals erred in failing to pass upon the issues raised in the
lower court and in the Court of Appeals.
The technical issue of timeliness of the appeal will first be considered. Counsel for the
Offended Parties alleges that he received a copy of the ORDER only on April 4, 1966 from
the Offended Party, Eliseo Alimpoos, who handed him the copy in Cebu City. The latter had
received it on March 31, 1966. Counsel contends that the reglementary period to appeal can
not be reckoned from the latter date because, under the Rules, when a party is represented
by counsel, notice should be sent, not to the party, but to his counsel of record. Counsel for
the Offended Parties and the Witnesses further maintains that the period from which to
reckon the period of appeal should actually be April 14, 1966 when he actually received,
through the mails, his copy of the ORDER, as shown by the rubber stamp of his office
appearing on the upper right hand corner of a duplicate copy of the ORDER. 4

Respondent Trial Judge and the Appellate Tribunal alike found the foregoing assertion selfserving and relied instead on the last page of the ORDER, 5 purportedly showing that the
law office of counsel for the Offended Parties and the Witnesses received its copy on March
30, 1966 and not on April 4, 1966, hence the disallowance of the appeal by respondent Trial
Judge, and its affirmance by the Appellate Court.
The crucial last page is reproduced hereunder exactly as it appears:
CIVIL CASE NO. 1088

ORDER

and preliminary injunction proceedings.

SO ORDERED.

Done this 26th day of March, 1966 at the City of Butuan.

(SGD.) MONTANO A. ORTIZ


JUDGE

MAO-bb.
Recd.
31/3/66 (initial)
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Received:
(Sgd.) Illegible Mun. Judge (Sgd.) Illegible 3/30/66 7:00 evening
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3/31/66 (Sgd.) B. Galimba 3/30/00 7:00


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(Sgd.) Eliseo Alimpoos

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Received copy March 31, 1966 8:00 A.M.


Ciriaco Alimpoos
Pedro Baklay
Catalino Yamilo
Rafael Capangpangan
Dalmacio Ygot
Eufrocina Estores

By: (Sgd.) Eliseo Alimpoos


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March 31, 1966


(Sgd.) Illegible
(Sgd.) Illegible

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For the Chief of Police 3-30-66


TO ATTYS. SENO, MENDOZA,
RUIZ & ASS. & CAPT. CUNANAN

BY REG. MAIL #11633 & #11634

A certified true copy:


(s) MACARIO C. CONDE
(t) MACARIO C. CONDE

Clerk of Court 6 (emphasis supplied)


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Obviously, copies of the ORDER intended for Attys. Seno, Mendoza, Ruiz & Ass. & Capt.
Cunanan were sent by registered mail with Receipts Nos. 11633 and 11634. Receipt No.
11633 is the registry number corresponding to the copy for the law office, and Receipt No.
11634 that for Capt. Cunanan. This is borne out by the envelope 7 from the Office of the
Clerk of Court Butuan City addressed to Seno, Mendoza, Ruiz and Associates, Cor.
Magallanes-D Jakosalem Sts., Aboitiz Bldg., Cebu City with the following markings:
On the face of the envelope lower left hand corner:
REGISTERED
CITY OF BUTUAN
PHILIPPINES

March 31, 1966

Superimposed on it in ink is No. 11633

On the back of the envelope appears a big diagonal stamp FOR OFFICIAL USE
ONLY and two post office stamp marks:

REGISTERED
CITY OF BUTUAN
PHILIPPINES

March 31, 1966

CEBU CITY

Received

April 11, 1966


Philippines
Since the registered mail was received in Cebu City only on April 11, 1966, it is not unlikely
that the law office and addressee, as alleged by it, received the mail only three days after,
or on April 14, 1966.
The notation
(Sgd.) Illegible
3-30-66
appearing above the following note:
To Attys. Seno, Mendoza, Ruiz & Ass. &
Capt. Cunanan by reg. mail #11633 & #11634
can not refer to personal receipt by the said law office for the obvious reason that its office
being at Cebu City, personal service would not have been possible in Agusan.
It is apparent then that both respondent Trial Judge and the Appellate Tribunal committed
error in holding that the Offended Parties appeal was interposed beyond the reglementary
period. Service on the Offended Party, Eliseo Alimpoos, on March 31, 1966 cannot be
deemed as notice in law to his counsel. 8 Under the circumstances, therefore, reliance may
be placed on the assertion of counsel that the Offended Party, Eliseo Alimpoos, had given
him a copy of the ORDER only on April 4, 1966, which must be deemed as the date of notice
to said counsel of the ORDER. Counsel lost no time in mailing his Notice of Appeal on the
same day, April 4, 1966 from Cebu. 9 Procedurally, the appeal was seasonably filed.
Although the Appellate Tribunal had committed error in its appreciation of the date when the
lawyers of the Offended Parties were served notice of the ORDER, we believe it would not be
justifiable to reverse and to direct respondent Trial Judge to allow the Offended Parties to
appeal. Instead, we are opting to render a practical judgment.
1. The original and amended complaints filed by the Offended Parties with the Trial Court
contained three causes of action, principally for Habeas Corpus and for damages. However,
the proceedings were conducted purely as a Habeas Corpus case. The original complaint
was filed on February 22, 1966, and resolved on March 26, 1966, in keeping with the
speedy and effectual character of Habeas Corpus proceedings. 10
The ORDER treated the case as exclusively a Habeas Corpus proceeding, ignoring the
Accuseds prayer for damages. The lawyers of the Offended Parties attempted to appeal
from the ORDER in accordance with Section 19 of Rule 41, captioned who may appeal in
Habeas Corpus cases. The Appellate Tribunal resolved in the mandamus case as relating to
a Habeas Corpus case.
2. Because the proceedings before the trial Court was a Habeas Corpus case, the complaint
filed was obviously defective. A Habeas Corpus proceeding is not a suit between parties.
Not a suit between the parties. While the issuance of the writ is to all intents and
purposes the commencement of a civil action, a suit, yet technically the proceedings by
Habeas Corpus is in no sense a suit between private parties. It is an inquisition by the
government, at the suggestion and instance of an individual, most probably, but still in the
name and capacity of the sovereign. It may be analogized to a proceeding in rem and
instituted for the sole purpose of fixing the status of a person. The person restrained is the
central figure in the transaction. The proceeding is instituted solely for his benefit. As it is

not designed to obtain redress against anybody, and as no judgment can be entered against
anybody, and as there is no real plaintiff and defendant, there can be no suit in the technical
sense.
(Extraordinary Legal Remedies, Forrest G. Ferris & Forrest G. Ferris, Jr., p. 28)
chanroblesvirtualawlibrary

The Accused, therefore, should have limited his complaint against the Chief of Police of
Bayugan, the person having him in alleged illegal custody. That is the clear implication in
the following provisions of Section 3, Rule 102, which enumerates what should be set forth
in a petition for Habeas Corpus:
SEC. 3. Requisites of application therefor. Application for the writ shall be by
petition signed and verified either by the party for whose relief it is intended, or by
some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is imprisoned or
restrained of his liberty;
(b) The officer or name of the person by whom he is so imprisoned or restrained;
or, if both are unknown or uncertain, such officer or person may be described
by an assumed appellation, and the person who is served with the writ shall
be deemed the person intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such person, if it can be
procured without impairing the efficiency of the remedy; or, if the
imprisonment or restraint is without any legal authority, such fact shall
appear.
The Accuseds allegation as to, and prayer for, damages was out of place. In Habeas Corpus
cases, the judgment in favor of the applicant cannot contain a provision for damages. It has
to be confined to what is provided for in Section 15, Rule 102, which reads:
SEC. 15. When prisoner discharged if no appeal. When the court or Judge has
examined into the cause of caption and restraint of the prisoner, and is satisfied that
he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from
confinement, but such discharge shall not be effective until a copy of the order has
been served on the officer or person detaining the prisoner. If the officer or person
detaining the prisoner does not desire to appeal, the prisoner shall be forthwith
released.
It will be observed that there is no provision for serving copy of the discharge on any other
private party defendant, nor for an award of damages.
As it has been held:
The sole function of the writ is to relieve from unlawful imprisonment, and ordinarily
it cannot properly be used for any other purpose. Thus it has been held that the writ
cannot properly be used: To enforce a right to service; to determine whether a
person has committed a crime; in determine a disputed interstate boundary line; to
punish respondent or to afford the injured person redress, for the illegal detention;
to recover damages or other money award; . .
(emphasis supplied) (Vt In re
St. Onge, 108 A203, 93 Vt. 373; NY People vs. Prior, 182 NYS 577, 112 Misc. 208
[39 C.J.S. 430]).
cra

chanroblesvirtualawlibrary

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3. The Accused has challenged the personality of the Offended Parties to interpose the
appeal, premised on Section 19 of Rule 41 of the Rules of Court, which provides:
SEC 19. Who may appeal in habeas corpus cases. The appeal in habeas corpus
cases may be taken in the name of the person detained or of the officer or person

detaining him. But if the detention is by reason of civil proceedings the party in
interest or the person who caused the detention shall be entitled to control the
appeal; and if, by virtue of criminal proceedings, the provincial fiscal or the city fiscal
as the case may be, is entitled to control the appeal on behalf of the government,
subject to the right of the Solicitor General to intervene
(Rule 41).
chanroble svirtualawlibrary

It is indisputable that the Habeas Corpus case arose by virtue of criminal proceedings in the
Criminal case. Pursuant to the aforequoted provision, therefore, it was the Provincial Fiscal
who was entitled to control the appeal on behalf of the Government. In this case, although
the Provincial Fiscal of Agusan, filed a Motion for Extension of Time to Perfect Appeal on
April 1, 1966, he had nevertheless abandoned the same. Neither did he take steps for the
reconsideration of respondent Trial Judges Order of April 23, 1966 dismissing the appeal.
The inaction of the Fiscal may be deemed to have been an admission on his part of the
unmeritoriousness of an appeal. As in criminal proceedings, his sound discretion on the
matter should be deemed controlling, and it has to be held that the Offended Parties were
bereft of personality to prosecute the appeal.
Noteworthy is the fact that in the instant case, the Offended Parties had alleged in their
Answer 11 that they were not detaining the Accused and had nothing to do with the Warrant
of Arrest issued against him. With all the more reason then that they had no personality to
interpose an appeal from a judicial Order granting the Writ of Habeas Corpus and ordering
the release of a person detained.
4. It has been noted that the ORDER contains a provision enjoining the prosecution of the
Accused in the Criminal Case. That is error. If the Accused was illegally detained because he
was arrested without a preliminary examination, what should have been done was to set
aside the warrant of arrest and order the discharge of the Accused, but without enjoining
the Municipal Judge from conducting a preliminary examination and afterwards properly
issuing a warrant of arrest. Habeas Corpus proceedings are not meant to determine criminal
responsibility. This principle was enunciated in Lee Ching v. Collector of Customs, 33 Phil.
329 (1916) where it was said:
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Proceedings in habeas corpus are separate and distinct from the main case from
which the proceedings spring. They rarely, if ever, touch the merits of the case and
require no pronouncement with respect thereto.
When a preliminary investigation is not held, or is improperly held, the procedure is not to
dismiss the case, or enjoin its prosecution, but to have the preliminary investigation
conducted. As stated in People v. Figueroa, 27 SCRA, 1239, 1247 (1969):
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Assuming that the trial court felt that the accused should have been given more
ample chance and opportunity to be heard in the preliminary investigation, then
what it could properly have done, since in its own Order it recognized that Fiscal
Abaca had conducted a preliminary investigation although hurriedly in its opinion,
was not to dismiss the information but to hold the case in abeyance and conduct its
own investigation or require the fiscal to hold a reinvestigation. This Court, speaking
through now Mr. Chief Justice Concepcion in People vs. Casiano, had stressed this as
the proper procedure, pointing out that the absence of such investigation did not
impair the validity of the information or otherwise render it defective. Much less did it
affect the jurisdiction of the Court of First Instance over the present case.
5. As a matter of fact, Habeas Corpus was not the proper remedy for the Accused. In a case
where a warrant of arrest was assailed for an alleged improper preliminary examination, this
Court, in Luna v. Plaza, 26 SCRA, 310, 323 (1968), said:
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At any rate, we believe that, if at all, the remedy available to the petitioner herein,
under the circumstances stated in this opinion, is not a petition for a writ of habeas

corpus but a petition to quash the warrant of arrest or a petition for reinvestigation
of the case by the respondent Municipal Judge or by the Provincial Fiscal.
It is the general rule that Habeas Corpus should not be resorted to when there is another
remedy available.
As a general rule, a writ of habeas corpus will not be granted where relief may be
had or could have been procured by resort to another general remedy, such as
appeal or writ of error. But the existence of another remedy does not necessarily
preclude a resort to the writ of habeas corpus to obtain relief from illegal detention,
especially where the other remedy is deemed not to be as effective as that of habeas
corpus. 12
Time and again, it has been explained that Habeas Corpus cannot function as a writ of error.
13
6. It has further been noted that respondent Trial Judge erred in adjudging costs against
defendants in the Habeas Corpus case. When a person confined under color of proceedings
in a criminal case is discharged, the costs shall be taxed against the Republic 14
7. The Accused was charged with Robbery with Less Serious Physical Injuries in early 1966.
Through the error of the Municipal Judge in issuing the warrant of arrest without conducting
a preliminary examination, the Accused was able to institute the Habeas Corpus case which
has pended to this date, or for fifteen years. The error of the Municipal Judge has
considerably retarded the turning of the wheels of justice. It should be meet to reiterate the
following admonition made in the aforecited Luna-Plaza case:
We wish to stress, however, that what has been stated in this opinion is certainly
not intended to sanction the return to the former practice of municipal judges of
simply relying upon affidavits or sworn statements that are made to accompany the
complaints that are filed before them, in determining whether there is a probable
cause for the issuance of a warrant of arrest. That practice is precisely what is
sought to be voided by the amendment of Section 87 (c) of Republic Act
296 (Judiciary Act of 1948) which requires that before a municipal judge issues a
warrant of arrest he should first satisfy himself that there is a probable cause by
examining the witnesses personally, and that the examination must be under oath
and reduced to writing in the form of searching questions and answers. It is obvious
that the purpose of this amendment is to prevent the issuance of a warrant of arrest
against a person based simply upon affidavits of witnesses who made, and swore to,
their statements before a person or persons other than the judge before whom the
criminal complaint is filed. We wish to emphasize strict compliance by municipal or
city judges of the provision of Section 87(c) of the Judiciary Act of 1948, as amended
by Republic Act 3828, in order to avoid malicious and/or unfounded criminal
prosecution of persons.
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In view of the foregoing considerations, it should be practical to resolve this case in a


manner that will not further protract the matter brought to this instance. It will not do
merely to reverse and set aside the appealed decision of the Appellate Tribunal, for it will
leave the ORDER of respondent Trial Judge outstanding with its injunction against the
further prosecution of the Criminal Case.
WHEREFORE, in the distinct understanding that this Court has not acted in a proper Habeas
Corpus proceeding, the Warrant of Arrest issued against Reynaldo Mosquito in Criminal Case
No. 458 of the Municipal Court of Bayugan, Agusan, the Order of March 26, 1966 issued in
Civil Case No. 1088 of the Court of First Instance of Agusan, as well as the Decision of the
Court of Appeals in its case CA-G.R. No. 37781-R, are hereby set aside; and the
proceedings in the last two cases mentioned are invalidated.

Without pronouncement as to costs.


SO ORDERED.

DANILO B. PARADA, complainant, vs. JUDGE


VENERACION, REGIONAL TRIAL COURT,
MANILA, respondent.

LORENZO B.
BRANCH 47,

DECISION
TORRES, JR., J.:

The case before us stems from a verified complaint filed by Danilo B.


Parada against respondent Judge Lorenzo B. Veneracion for gross ignorance
of the law, abuse of authority and rendering unjust and erroneous interlocutory
orders and judgment in connection with Criminal Cases Nos. 93-121385 to 88,
entitled People vs. Danilo Parada, which led to complainant Paradas
premature incarceration at the Makati City Jail and Muntinlupa National
Penitentiary.
The undisputed facts of the case as found by the Office of the Court
Administrator are as follows :
Complainant herein is the accused in the aforementioned case for four (4)
counts of estafa which were initially raffled to Branch 30, RTC, Manila
presided by Judge Senecio Ortile. Complainant is also duly bonded with the
Eastern Assurance and Surety Corporation (EASCO). On October 23, 1993
complainant notified said court formally thru counsel of his change of address
from 219 Cityland Condominium, Buendia Extension, Makati, Metro Manila
to 2412 Nobel St., Bo. San Isidro, Makati, Metro Manila. On October 27,
1993 he also notified the Manager of the bonding company of his change of
address. On February 8, 1994, Judge Ortile inhibited himself from trying the
said case and thus, the case was re-raffled to the sala of respondent Judge
Lorenzo Veneracion, and per order of April 26, 1994, the hearing of the case
was set for June 3, 6, 7 and 8, 1994. Apparently, the notice of hearing dated
April 27, 1994 was sent to complainants former address and that for failure of
accused-complainant to appear on June 3, 1994, respondent ordered the arrest
of herein accused-complainant, ordering the confiscation of the bond and
a trial in absentia was conducted.Respondent Judge likewise assigned a
counsel de officio, Atty. Jesse Tiburan of the Public Attorneys Office (PAO) as
counsel for the accused.

xxx Furthermore, a warrant of arrest was issued on June 3, 1994 with no bail
recommended.
On June 6, 7 and 8, 1994, respondent court issued orders noting the failure of
the petitioner to appear and proceeded with the trial in absentia. On the
hearing of June 8, 1994, the motion of counsel de officio of accusedcomplainant that defense be allowed to present evidence upon petitioners
arrest, was denied and further held that the failure of the accused to appear is a
waiver of his right to adduce evidence.
xxx. On November 25, 1994, a decision was rendered convicting herein
accused-appellant of the crime and the decision was promulgated despite his
absence. Accused-complainant was arrested and brought to the Makati City
Jail.
Accused-complainant filed a Petition for Habeas Corpus, Certiorari and
Annulment of Judgment with prayer for immediate relief with the Court of
Appeals and was docketed as CA-G.R. SP No. 37340 entitled Danilo
Parada vs. Judge Lorenzo B. Veneracion, et. al..
On August 18, 1995, the Court of Appeals promulgated a decision declaring
the decision dated November 25, 1995 of respondent court null and void and
further ordering the case to be remanded to respondent for further proceeding
in order to afford accused-complainant the opportunity to rebut the
testimonies of the prosecution witnesses and documentary evidence against
him as well as present his evidence.
[1]

Subsequently, Parada filed with this Court the instant complaint dated
March 11, 1996 against the respondent Judge Veneracion in connection with
the decision and interlocutory ordersrendered by the latter in Criminal Cases
Nos. 93-121385 to 88. He alleged, inter alia, that the respondent Judge is
guilty of ignorance of the law when he did not follow the legal requirements
of a valid trial in absentia which led to his conviction and premature
incarceration, that the order of his arrest with no recommendation for bail was
erroneous, and that respondent Judge abused his authority when he issued
the June 8, 1994 order denying the motion of Paradas counsel de oficio to
allow him to present his evidence upon his arrest. Parada thus prayed for the
dismissal from service of the respondent Judge and that the latter be barred
from railroading the subject Criminal Cases Nos. 93-121385 to 88.

On June 4, 1996, the Office of the Court Administrator received the


respondent Judges comment to Paradas complaint, the pertinent portion of
which reads:
xxx
1. That the herein complaint is purely and plainly a harassment suit arising
from the Decision rendered in the case of People vs. Danilo Parada for estafa;
2. That the charges therein are denied because they are not based on the facts
and of the records of the case, the herein Judge merely acted with compassion
upon receipt of the records of these cases from another sala, after having been
informed that the private complainants merely borrowed from loan sharks the
money given to the accused Danilo Parada and that they are only interested in
compelling said accused to return their money, not in sending said accused to
jail;
3. That the herein Judge acted in good faith in the trial of the said cases.

[2]

Unfazed by the foregoing assertions of the respondent Judge, the Office of


the Court Administrator on the contrary held that:
xxx
Respondents general denial of the allegations imputed to him does not belie
any of the facts which lead to the incarceration of the complainant. Thus, his
failure to deny each and every specific allegations can be construed as
admission on his part.
Moreover, trial in absentia may proceed only if the accused failed to appear at
the trial without justification despite due notice. In this case, complainant was
never notified of any hearing from the time he changed his address up to the
promulgation of the decision despite the fact that he notified the court and his
bonding company.
xxx
Respondent issued a warrant for the arrest of the accused-complainant with no
bail recommended despite the fact that the crime charged was bailable and
denied the motion of his counsel for the accused to adduce evidence upon

accuseds arrest. Clearly, respondent denied complainant his right to due


process.
[3]

On the basis of these observations, the Office of the Court Administrator


recommended that respondent Judge Veneracion be fined in the amount
of P10,000.00 with a warning that a commission of the same or similar
infraction shall be dealt with more severely.
We agree with the findings of the Office of the Court Administrator.
Section 14 (2), Article 3 of the Constitution provides, inter alia, that trial
may proceed notwithstanding the absence of the accused provided that he
has been duly notified and his failure to appear is unjustifiable. The requisites
then of a valid trial in absentia are: (1) the accused has already been
arraigned; (2) he has been duly notified of the trial; and (3) his failure to
appear is unjustifiable.
[4]

In the subject criminal cases, requisite numbers two (2) and three (3) of a
valid trial in absentia are clearly wanting. Parada had not been duly notified of
the trial because the notice of hearing dated April 27, 1994 was sent to the
former address of Paradas counsel despite the fact that the latter formally
notified the court of his change of address. His failure to appear therefore in
the June 3, 6, 7 and 8, 1994 hearings is justified by the absence of a valid
service of notice of hearing to him.
As a rule, where a party appears by attorney in an action or proceeding in
a court of record, all notices required to be given therein must be given to the
attorney of record. Accordingly, notices to counsel should be properly sent to
his address of record and unless the counsel files a notice of change of
address, his official address remains to be that of his address of record.
[5]

[6]

It is undisputed that Paradas counsel filed a notice of change of address


on October 23, 1993. As such, the respondent judge should have already
taken cognizance of the new address when it sent the notice of hearing dated
April 27, 1994. It is thus unwarranted for the respondent judge to still send the
notice of hearing to the old address of Paradas counsel because it is not his
official address nor his address of record. Concomitantly, the sending of notice
of hearing to his former address is an invalid service and cannot in any way
bind Parada.

It is worthy to stress that due process of law in judicial proceedings


requires that the accused must be given an opportunity to be heard. He has
the right to be present and defend in person at every stage of the
proceedings. Incidentally, the right to a hearing carries with it the right to be
notified of every incident of the proceedings in court. Notice to a party is
essential to enable him to adduce his own evidence and to meet and refute
the evidence submitted by the other party. No less than the Constitution
provides that no person shall be held to answer for a criminal offense without
due process of law. A violation therefore of any of the rights accorded the
accused constitutes a denial of due process of law. The circumstantial setting
of the instant case as weighed by the basic standards of fair play impels us to
so hold that the trial in absentia of Parada and his subsequent conviction are
tainted with the vice of nullity, for evidently Parada was denied due process of
law.
[7]

Judges, by the very delicate nature of their functions in dispensing justice,


should be more circumspect in the performance of their duties. In resolving
matters in litigation, they should endeavor assiduously to ascertain the facts
and the applicable laws. Had respondent judge carefully and diligently studied
the records of the case, he would have surely noticed the change of address,
and his questioned orders, which eventually led to Paradas unwarranted
deprivation of liberty, could not have been precipitately issued.
[8]

Likewise, the warrant of arrest with no recommendation for bail that was
issued by respondent Judge on June 3, 1994 is a downright violation of
Paradas constitutional right to bail. The rule is clear that unless charged with
offenses punishable by reclusion perpetua and the evidence of guilt is strong,
all persons detained, arrested or otherwise under the custody of the law are
entitled to bail as a matter of right. It should be noted that the crime with which
Parada was charged is estafa which is undoubtedly a bailable offense. This
circumstance could not have escaped the attention of the respondent judge
when he issued on June 3, 1994 the order of arrest of Parada with no
recommendation for his bail. In so doing, respondent judge exhibited that
degree of ignorance so gross which the Court can not countenance. Judges
are required by Canon 3, Rule 3.01 of the Code of Judicial Conduct to be
faithful to the law and maintain professional competence. They are called
upon to exhibit more than just a cursory acquaintance with statutes and
procedural rules; it is imperative that he be conversant with basic legal
principles.
[9]

[10]

[11]

WHEREFORE, respondent Judge Lorenzo B. Veneracion is


FINED P10,000.00 for disregarding Paradas right to procedural due process
and for showing gross ignorance of the law,with a STERN WARNING that a
repetition of a similar act in the future will be dealt with more severely.
SO ORDERED.

THE
SECRETARY
OF
NATIONAL DEFENSE, THE
CHIEF OF STAFF, ARMED
FORCES
OF
THEPHILIPPINES,
Petitioners,

G.R. No. 180906


Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,

- versus -

CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

RAYMOND MANALO and


REYNALDO MANALO,
Promulgated:
Respondents.
October 7, 2008
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DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world
behind secret walls, they are not separated from the constitutional protection of
their basic rights. The constitution is an overarching sky that covers all in its
protection. The case at bar involves the rights to life, liberty and security in the first
petition for a writ ofamparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in
relation to Section 19[1] of the Rule on the Writ of Amparo, seeking to reverse and
set aside on both questions of fact and law, the Decision promulgated by the Court
of Appeals in C.A. G.R. AMPARO No. 00001, entitled Raymond Manalo and
Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief
of Staff, Armed Forces of the Philippines, respondents.
This case was originally a Petition for Prohibition, Injunction, and Temporary
Restraining Order (TRO)[2] filed before this Court by herein respondents (therein
petitioners) onAugust 23, 2007 to stop herein petitioners (therein respondents)
and/or their officers and agents from depriving them of their right to liberty and
other basic rights. Therein petitioners also sought ancillary remedies, Protective
Custody Orders, Appointment of Commissioner, Inspection and Access Orders,
and all other legal and equitable reliefs under Article VIII, Section 5(5) [3] of the
1987 Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution

dated August 24, 2007, we (1) ordered the Secretary of the Department of National
Defense and the Chief of Staff of the AFP, their agents, representatives, or persons
acting in their stead, including but not limited to the Citizens Armed Forces
Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them
from causing the arrest of therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the Writ
of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a
Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition,
to
Admit
Supporting
Affidavits,
and
to
Grant
Interim
and
Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition
for the Writ of Amparo under Sec. 26[6] of the Amparo Rule; (2) the Court issue the
writ commanding therein respondents to make a verified return within the period
provided by law and containing the specific matter required by law; (3) they be
granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed
for in the petition but not covered by the Amparo Rule; (4) the Court, after hearing,
render judgment as required in Sec. 18[7] of the Amparo Rule; and (5) all other just
and equitable reliefs.[8]
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a
petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents
requiring them to file with the CA (Court of Appeals) a verified written
return within five (5) working days from service of the writ. We
REMAND the petition to the CA and designate the Division of Associate
Justice Lucas P. Bersamin to conduct the summary hearing on the
petition on November 8, 2007 at 2:00 p.m. and decide the petition in
accordance with the Rule on the Writ of Amparo. [9]
On December 26, 2007, the Court of Appeals rendered a decision in favor of
therein petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE
AMPARO is GRANTED.

OF

THE

WRIT

OF

The respondents SECRETARY OF NATIONAL DEFENSE and AFP


CHIEF OF STAFF are hereby REQUIRED:

1. To furnish to the petitioners and to this Court within five days from
notice of this decision all official and unofficial reports of the
investigation undertaken in connection with their case, except those
already on file herein;
2. To confirm in writing the present places of official assignment of
M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days
from notice of this decision.
3. To cause to be produced to this Court all medical reports, records and
charts, reports of any treatment given or recommended and medicines
prescribed, if any, to the petitioners, to include a list of medical and
(sic) personnel (military and civilian) who attended to them from
February 14, 2006 until August 12, 2007 within five days from notice
of this decision.
The compliance with this decision shall be made under the signature and
oath of respondent AFP Chief of Staff or his duly authorized deputy, the
latters authority to be express and made apparent on the face of the
sworn compliance with this directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first unfurl the facts as
alleged by herein respondents:

Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San
Idelfonso, Bulacan. Respondents were not able to attend as they were not informed
of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.[11]
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga,
San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts,
fatigue pants and army boots, entered their house and roused him. They asked him
if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not
Bestre. The armed soldier slapped him on both cheeks and nudged him in the
stomach. He was then handcuffed, brought to the rear of his house, and forced to
the ground face down. He was kicked on the hip, ordered to stand and face up to

the light, then forcibly brought near the road. He told his mother to follow him, but
three soldiers stopped her and told her to stay.[12]
Among the men who came to take him, Raymond recognized brothers Michael de
la Cruz, Madning de la Cruz, Puti de la Cruz, and Pula de la Cruz, who all acted as
lookout.They were all members of the CAFGU and residing in Manuzon, San
Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy
Mendoza, also members of the CAFGU. While he was being forcibly taken, he
also saw outside of his house two barangay councilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and armed men.[13]
The men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who took
him. Later, in his 18 months of captivity, he learned their names. The one who
drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about
40 years of age or older. The leader of the team who entered his house and
abducted him was Ganata. He was tall, thin, curly-haired and a bit old. Another
one of his abductors was George who was tall, thin, white-skinned and about 30
years old.[14]
The van drove off, then came to a stop. A person was brought inside the van and
made to sit beside Raymond. Both of them were beaten up. On the road, he
recognized the voice of the person beside him as his brother Reynaldos. The van
stopped several times until they finally arrived at a house. Raymond and Reynaldo
were each brought to a different room. With the doors of their rooms left open,
Raymond saw several soldiers continuously hitting his brother Reynaldo on the
head and other parts of his body with the butt of their guns for about 15
minutes. After which, Reynaldo was brought to his (Raymonds) room and it was
his (Raymonds) turn to be beaten up in the other room. The soldiers asked him if
he was a member of the New Peoples Army. Each time he said he was not, he was
hit with the butt of their guns. He was questioned where his comrades were, how
many soldiers he had killed, and how many NPA members he had helped. Each
time he answered none, they hit him.[15]
In the next days, Raymonds interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them sir, and treat them with
respect. He was in blindfolds when interrogated by the high officials, but he saw

their faces when they arrived and before the blindfold was put on. He noticed that
the uniform of the high officials was different from those of the other soldiers. One
of those officials was tall and thin, wore white pants, tie, and leather shoes, instead
of combat boots. He spoke in Tagalog and knew much about his parents and
family, and a habeas corpus case filed in connection with the respondents
abduction.[16] While these officials interrogated him, Raymond was not
manhandled. But once they had left, the soldier guards beat him up. When the
guards got drunk, they also manhandled respondents. During this time, Raymond
was fed only at night, usually with left-over and rotten food.[17]
On the third week of respondents detention, two men arrived while Raymond was
sleeping and beat him up. They doused him with urine and hot water, hit his
stomach with a piece of wood, slapped his forehead twice with a .45 pistol,
punched him on the mouth, and burnt some parts of his body with a burning
wood. When he could no longer endure the torture and could hardly breathe, they
stopped. They then subjected Reynaldo to the same ordeal in another room. Before
their torturers left, they warned Raymond that they would come back the next day
and kill him.[18]
The following night, Raymond attempted to escape. He waited for the guards to get
drunk, then made noise with the chains put on him to see if they were still
awake. When none of them came to check on him, he managed to free his hand
from the chains and jumped through the window. He passed through a helipad and
firing range and stopped near a fishpond where he used stones to break his
chains. After walking through a forested area, he came near a river and an Iglesia
ni Kristo church. He talked to some women who were doing the laundry, asked
where he was and the road to Gapan. He was told that he was in Fort Magsaysay.
[19]
He reached the highway, but some soldiers spotted him, forcing him to run
away. The soldiers chased him and caught up with him. They brought him to
another place near the entrance of what he saw was Fort Magsaysay. He was boxed
repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on
him. Then a so-called Mam or Madam suddenly called, saying that she wanted to
see Raymond before he was killed. The soldiers ceased the torture and he was
returned inside Fort Magsaysay where Reynaldo was detained.[20]

For some weeks, the respondents had a respite from all the torture. Their wounds
were treated. When the wounds were almost healed, the torture resumed,
particularly when respondents guards got drunk.[21]
Raymond recalled that sometime in April until May 2006, he was detained in a
room enclosed by steel bars. He stayed all the time in that small room measuring 1
x 2 meters, and did everything there, including urinating, removing his bowels,
bathing, eating and sleeping. He counted that eighteen people[22] had been detained
in that bartolina, including his brother Reynaldo and himself.[23]
For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms and a
kitchen. One room was made into thebartolina. The house was near the firing
range, helipad and mango trees. At dawn, soldiers marched by their house. They
were also sometimes detained in what he only knew as the DTU.[24]
At the DTU, a male doctor came to examine respondents. He checked their body
and eyes, took their urine samples and marked them. When asked how they were
feeling, they replied that they had a hard time urinating, their stomachs were
aching, and they felt other pains in their body. The next day, two ladies in white
arrived. They also examined respondents and gave them medicines, including
orasol, amoxicillin and mefenamic acid. They brought with them the results of
respondents urine test and advised them to drink plenty of water and take their
medicine. The two ladies returned a few more times. Thereafter, medicines were
sent through the master of the DTU, Master Del Rosario alias Carinyoso at
Puti. Respondents were kept in the DTU for about two weeks. While there, he met
a soldier named Efren who said that Gen. Palparan ordered him to monitor and
take care of them.[25]
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with
Efren and several other armed men wearing fatigue suits, went to a detachment in
Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks
in a big two-storey house. Hilario and Efren stayed with them. While there,
Raymond was beaten up by Hilarios men.[26]
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Bulacan on board the Revo. They were detained in a big unfinished house inside

the compound of Kapitan for about three months. When they arrived in Sapang,
Gen. Palparan talked to them. They were brought out of the house to a basketball
court in the center of the compound and made to sit. Gen. Palparan was already
waiting, seated. He was about two arms length away from respondents. He began
by asking if respondents felt well already, to which Raymond replied in the
affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He
then asked Raymond if he would be scared if he were made to face Gen.
Palparan. Raymond responded that he would not be because he did not believe that
Gen. Palparan was an evil man.[27]
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin?
Sumagot akong, Siyempre po, natatakot din
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang pagkakataon na
mabuhay, bastat sundin nyo ang lahat ng sasabihin ko sabihin mo sa
magulang mo huwag pumunta sa mga rali, sa hearing, sa Karapatan at
sa Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat
sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre
na sumuko na sa gobyerno.[28]
Respondents agreed to do as Gen. Palparan told them as they felt they could
not do otherwise. At about 3:00 in the morning, Hilario, Efren and the formers men
- the same group that abducted them - brought them to their parents
house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told him. As they were afraid,
Raymonds parents acceded. Hilario threatened Raymonds parents that if they
continued to join human rights rallies, they would never see their children
again. The respondents were then brought back to Sapang.[29]

When respondents arrived back in Sapang, Gen. Palparan was about to


leave. He was talking with the four masters who were there: Arman, Ganata,
Hilario and Cabalse.[30] When Gen. Palparan saw Raymond, he called for him. He
was in a big white vehicle. Raymond stood outside the vehicle as Gen. Palparan
told him to gain back his strength and be healthy and to take the medicine he left
for him and Reynaldo. He said the medicine was expensive at Php35.00 each, and

would make them strong. He also said that they should prove that they are on the
side of the military and warned that they would not be given another chance.
[31]
During his testimony, Raymond identified Gen. Palparan by his picture.[32]
One of the soldiers named Arman made Raymond take the medicine left by Gen.
Palparan. The medicine, named Alive, was green and yellow. Raymond and
Reynaldo were each given a box of this medicine and instructed to take one
capsule a day. Arman checked if they were getting their dose of the medicine. The
Alive made them sleep each time they took it, and they felt heavy upon waking up.
[33]

After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as Oscar, a military trainee from Sariaya, Quezon, assigned in
Bulacan. While there, he saw again Ganata, one of the men who abducted him
from his house, and got acquainted with other military men and civilians.[34]
After about three months in Sapang, Raymond was brought to Camp Tecson under
the 24th Infantry Battalion. He was fetched by three unidentified men in a big white
vehicle.Efren went with them. Raymond was then blindfolded. After a 30-minute
ride, his blindfold was removed. Chains were put on him and he was kept in the
barracks.[35]
The next day, Raymonds chains were removed and he was ordered to clean outside
the barracks. It was then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna. She told him that she was a student of the University of
the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home
and be with her parents. During the day, her chains were removed and she was
made to do the laundry.[36]
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and
Manuel were put in the room with Allan whose name they later came to know as
Donald Caigas, called master or commander by his men in the 24 th Infantry

Battalion. Raymond and Reynaldo were put in the adjoining room. At times,
Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the
daytime, their chains were removed, but were put back on at night. They were
threatened that if they escaped, their families would all be killed.[37]
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the
detainees that they should be thankful they were still alive and should continue
along their renewed life.Before the hearing of November 6 or 8, 2006, respondents
were brought to their parents to instruct them not to attend the hearing. However,
their parents had already left forManila. Respondents were brought back
to Camp Tecson. They stayed in that camp from September 2006 to November
2006, and Raymond was instructed to continue using the name Oscar and holding
himself out as a military trainee. He got acquainted with soldiers of the
24th Infantry Battalion whose names and descriptions he stated in his affidavit.[38]
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel,
were transferred to a camp of the 24 th Infantry Battalion in Limay, Bataan. There
were many huts in the camp. They stayed in that camp until May 8, 2007. Some
soldiers of the battalion stayed with them. While there, battalion soldiers whom
Raymond knew as Mar and Billy beat him up and hit him in the stomach with their
guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all
made to clean, cook, and help in raising livestock.[39]
Raymond recalled that when Operation Lubog was launched, Caigas and some
other soldiers brought him and Manuel with them to take and kill all sympathizers
of the NPA.They were brought to Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA members
in his house.[40] Another time, in another Operation Lubog, Raymond was brought
to Barangay Orion in a house where NPA men stayed. When they arrived, only the
old man of the house who was sick was there. They spared him and killed only his
son right before Raymonds eyes.[41]
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house. Like in Limay, the five

detainees were made to do errands and chores. They stayed in Zambales from May
8 or 9, 2007 until June 2007.[42]
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na
kami. Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng
silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig,
walang nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa
mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at
itoy sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng
kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga
bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang
Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na
binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng
sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila
iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa
kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang mga
bangkay sa labas ng bakod. Kinaumagahan nakita kong mayroong
sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain
ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas
sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel
dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala
siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog
na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o
ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3


o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay
dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o
hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami
kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw
naming hanapin ang dalawang babae at si Manuel, dahil magkakasama
na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong
buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.[43]
On or about June 13, 2007, Raymond and Reynaldo were brought to
Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told
respondents to also farm his land, in exchange for which, he would take care of the
food of their family. They were also told that they could farm a small plot
adjoining his land and sell their produce. They were no longer put in chains and
were instructed to use the names Rommel (for Raymond) and Rod (for Reynaldo)
and represent themselves as cousins from Rizal, Laguna.[44]

Respondents started to plan their escape. They could see the highway from where
they stayed. They helped farm adjoining lands for which they were paid Php200.00
or Php400.00 and they saved their earnings. When they had saved Php1,000.00
each, Raymond asked a neighbor how he could get a cellular phone as he wanted
to exchange text messages with a girl who lived nearby. A phone was pawned to
him, but he kept it first and did not use it. They earned some more until they had
saved Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo were housed in
one of them while their guards lived in the other three. Caigas entrusted
respondents to Nonong, the head of the guards. Respondents house did not have
electricity. They used a lamp. There was no television, but they had a radio. In the
evening of August 13, 2007, Nonong and his cohorts had a drinking session. At
about 1:00 a.m., Raymond turned up the volume of the radio. When none of the
guards awoke and took notice, Raymond and Reynaldo proceeded towards the
highway, leaving behind their sleeping guards and barking dogs. They boarded a
bus bound for Manila and were thus freed from captivity.[45]

Reynaldo also executed an affidavit affirming the contents of Raymonds affidavit


insofar as they related to matters they witnessed together. Reynaldo added that
when they were taken from their house on February 14, 2006, he saw the faces of
his abductors before he was blindfolded with his shirt. He also named the soldiers
he got acquainted with in the 18 months he was detained. When Raymond
attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and
told that they were indeed members of the NPA because Raymond escaped. With
a .45 caliber pistol, Reynaldo was hit on the back and punched in the face until he
could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal
Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a mountainous
area. He was instructed to use the name Rodel and to represent himself as a
military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along
Reynaldo in his trips. One time, he was brought to a market in San Jose, del
Monte, Bulacan and made to wait in the vehicle while Hilario was buying. He was
also brought to Tondo, Manila where Hilario delivered boxes of Alive in different
houses. In these trips, Hilario drove a black and red vehicle.Reynaldo was
blindfolded while still in Bulacan, but allowed to remove the blindfold once
outside
the
province. In
one
of
their
trips,
they
passed
by Fort Magsaysay and CampTecson where Reynaldo saw the sign board,
Welcome to Camp Tecson.[46]
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected
with the Medical Action Group, an organization handling cases of human rights
violations, particularly cases where torture was involved. He was requested by an
NGO to conduct medical examinations on the respondents after their escape. He
first asked them about their ordeal, then proceeded with the physical
examination. His findings showed that the scars borne by respondents were
consistent with their account of physical injuries inflicted upon them. The
examination was conducted on August 15, 2007, two days after respondents
escape, and the results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul Protocol in
conducting the examination.[47]

Petitioners dispute respondents account of their alleged abduction and torture. In


compliance with the October 25, 2007 Resolution of the Court, they filed a Return
of the Writ ofAmparo admitting the abduction but denying any involvement
therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time
arrested, forcibly abducted, detained, held incommunicado, disappeared
or under the custody by the military. This is a settled issue laid to rest in
the habeas corpus case filed in their behalf by petitioners parents before
the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal
Hilario aka Rollie Castillo, as head of the 24 th Infantry Battalion; Maj.
Gen. Jovito Palparan, as Commander of the 7 th Infantry Division in
Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the
Commanding General of the Philippine Army, and members of the
Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael
dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy
Mendoza and Rudy Mendoza. The respondents therein submitted a
return of the writ On July 4, 2006, the Court of Appeals dropped as party
respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on September 19, 2006, Maj. (sic)
Jovito S. Palparan, then Commanding General, 7 th Infantry Division,
Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva
Ecija, upon a finding that no evidence was introduced to establish their
personal involvement in the taking of the Manalo brothers. In a Decision
dated June 27, 2007, it exonerated M/Sgt. Rizal Hilario aka Rollie
Castillo for lack of evidence establishing his involvement in any
capacity in the disappearance of the Manalo brothers, although it held
that the remaining respondents were illegally detaining the Manalo
brothers and ordered them to release the latter.[48]

Attached to the Return of the Writ was the affidavit of therein respondent
(herein petitioner) Secretary of National Defense, which attested that he assumed
office only on August 8, 2007 and was thus unaware of the Manalo brothers
alleged abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual military
directional operations, neither does he undertake command directions
of the AFP units in the field, nor in any way micromanage the AFP
operations. The principal responsibility of the Secretary of National
Defense is focused in providing strategic policy direction to the

Department (bureaus and agencies) including the Armed Forces of


the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable
Supreme Court in this case, I have directed the Chief of Staff, AFP to
institute immediate action in compliance with Section 9(d) of
the Amparo Rule and to submit report of such compliance
Likewise, in a Memorandum Directive also dated October 31, 2007, I
have issued a policy directive addressed to the Chief of Staff, AFP
that the AFP should adopt the following rules of action in the event
the Writ of Amparo is issued by a competent court against any
members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may
aid in the prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning
the death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved in the
death or disappearance; and
(6) to bring the suspected offenders before a competent court. [49]

Therein respondent AFP Chief of Staff also submitted his own affidavit,
attached to the Return of the Writ, attesting that he received the above directive of
therein respondent Secretary of National Defense and that acting on this directive,
he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the
Philippines (AFP), I have caused to be issued directive to the units of the
AFP for the purpose of establishing the circumstances of the alleged
disappearance and the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the
result thereof to Higher headquarters and/or direct the immediate conduct

of the investigation on the matter by the concerned unit/s, dispatching


Radio Message on November 05, 2007, addressed to the Commanding
General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO
24 IB PA). A Copy of the Radio Message is attached as ANNEX 3 of this
Affidavit.
3.3. We undertake to provide result of the investigations conducted or to
be conducted by the concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose favor the Writ of Amparo
has been sought for as soon as the same has been furnished Higher
headquarters.
3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan and Empeo pending before the
Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest
efforts to establish the surrounding circumstances of the disappearances
of the petitioners and to bring those responsible, including any military
personnel if shown to have participated or had complicity in the
commission of the complained acts, to the bar of justice, when warranted
by the findings and the competent evidence that may be gathered in the
process.[50]
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another amparo case
in this Court, involving Cadapan, Empeo and Merino, which averred among
others, viz:
10) Upon reading the allegations in the Petition implicating the
24th Infantry Batallion detachment as detention area, I immediately went
to the 24th IB detachment in Limay, Bataan and found no untoward
incidents in the area nor any detainees by the name of Sherlyn Cadapan,
Karen Empeo and Manuel Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the
24th IB in Limay, Bataan;
12) After going to the 24 th IB in Limay, Bataan, we made further
inquiries with the Philippine National Police, Limay, Bataan regarding
the alleged detentions or deaths and were informed that none was
reported to their good office;

13) I also directed Company Commander 1 st Lt. Romeo Publico to


inquire into the alleged beachhouse in Iba, Zambales also alleged to be a
detention place where Sherlyn Cadapan, Karen Empeo and Manuel
Merino were detained. As per the inquiry, however, no such beachhouse
was used as a detention place found to have been used by armed men to
detain Cadapan, Empeo and Merino.[51]

It was explained in the Return of the Writ that for lack of sufficient time, the
affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie
Castillo, and other persons implicated by therein petitioners could not be secured
in time for the submission of the Return and would be subsequently submitted.[52]
Herein petitioners presented a lone witness in the summary hearings, Lt. Col.
Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based
in FortMagsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this
Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a
portion of Pangasinan.[53] The 24th Infantry Battalion is part of the 7th Infantry
Division.[54]
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of
the 7th Infantry Division, Maj. Gen. Jovito Palaran, [55] through his Assistant Chief
of Staff,[56]to investigate the alleged abduction of the respondents by CAFGU
auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la
Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; exCAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He
was directed to determine: (1) the veracity of the abduction of Raymond and
Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2) the
administrative liability of said auxiliaries, if any.[57] Jimenez testified that this
particular investigation was initiated not by a complaint as was the usual
procedure, but because the Commanding General saw news about the abduction of
the Manalo brothers on the television, and he was concerned about what was
happening within his territorial jurisdiction.[58]
Jimenez summoned all six implicated persons for the purpose of having them
execute sworn statements and conducting an investigation on May 29, 2006.[59] The
investigation started at 8:00 in the morning and finished at 10:00 in the evening.
[60]
The investigating officer, Technical Sgt. Eduardo Lingad, took the individual

sworn statements of all six persons on that day. There were no other sworn
statements taken, not even of the Manalo family, nor were there other witnesses
summoned and investigated[61] as according to Jimenez, the directive to him was
only to investigate the six persons.[62]
Jimenez was beside Lingad when the latter took the statements.[63] The six persons
were not known to Jimenez as it was in fact his first time to meet them. [64] During
the entire time that he was beside Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a single question to the six persons.[65]
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their
statements as the printing of their statements was interrupted by a power
failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of
their statements indicated that they were signed on May 29, 2006.[66] When the
Sworn Statements were turned over to Jimenez, he personally wrote his
investigation report. He began writing it in the afternoon of May 30, 2006 and
finished it on June 1, 2006.[67] He then gave his report to the Office of the Chief of
Personnel.[68]
As petitioners largely rely on Jimenezs Investigation Report dated June 1, 2006 for
their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a case
for Abduction in the civil court against the herein suspects: Michael dela
Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy
Mendoza and Rudy Mendoza as alleged members of the Citizen Armed
Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29
May 2006 in (Exhibit B) states that he was at Sitio Mozon,
Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete
building of a church located nearby his residence, together with some
neighbor thereat. He claims that on 15 February 2006, he was being

informed by Brgy. Kagawad Pablo Umayan about the abduction of the


brothers Raymond and Reynaldo Manalo. As to the allegation that he
was one of the suspects, he claims that they only implicated him because
he was a CAFGU and that they claimed that those who abducted the
Manalo brothers are members of the Military and CAFGU. Subject
vehemently denied any participation or involvement on the abduction of
said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti
dtd 29 May 2006 in (Exhibit C) states that he is a resident of Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA
member based at Biak na Bato Detachment, San Miguel, Bulacan. He
claims that Raymond and Reynaldo Manalo being his neighbors are
active members/sympathizers of the CPP/NPA and he also knows their
elder Rolando Manalo @ KA BESTRE of being an NPA Leader
operating in their province. That at the time of the alleged abduction of
the two (2) brothers and for accusing him to be one of the suspects, he
claims that on February 14, 2006, he was one of those working at the
concrete chapel being constructed nearby his residence. He claims
further that he just came only to know about the incident on other day
(15 Feb 06) when he was being informed by Kagawad Pablo
Kunanan. That subject CAA vehemently denied any participation about
the incident and claimed that they only implicated him because he is a
member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May
2006 in (Exhibit O) states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a member of CAFGU based
at Biak na Bato Detachment. That being a neighbor, he was very much
aware about the background of the two (2) brothers Raymond and
Reynaldo as active supporters of the CPP NPA in their Brgy. and he also
knew their elder brother KUMANDER BESTRE TN: Rolando
Manalo. Being one of the accused, he claims that on 14 February 2006,
he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his
aunt and he learned only about the incident when he arrived home in
their place. He claims further that the only reason why they implicated
him was due to the fact that his mother has filed a criminal charge
against their brother Rolando Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for that reason they implicated
him in support of their brother. Subject CAA vehemently denied any
involvement on the abduction of said Manalo brothers.

d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in


(Exhibit E) states that he is a resident of Brgy. Marungko, Angat,
Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to
him being his barriomate when he was still unmarried and he knew them
since childhood. Being one of the accused, he claims that on 14 February
2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He
claims that he was being informed only about the incident lately and he
was not aware of any reason why the two (2) brothers were being
abducted by alleged members of the military and CAFGU. The only
reason he knows why they implicated him was because there are those
people who are angry with their family particularly victims of summary
execution (killing) done by their brother @ KA Bestre Rolando Manalo
who is an NPA leader. He claims further that it was their brother @ KA
BESTRE who killed his father and he was living witness to that
incident. Subject civilian vehemently denied any involvement on the
abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in
(Exhibit F) states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based
at Biak na Bato, San Miguel, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being their barrio mate. He claims
further that they are active supporters of CPP/NPA and that their brother
Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the
accused, he claims that on 14 February 2006, he was in his residence at
Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That he
vehemently denied any participation of the alleged abduction of the two
(2) brothers and learned only about the incident when rumors reached
him by his barrio mates. He claims that his implication is merely
fabricated because of his relationship to Roman and Maximo who are his
brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May
2006 in (Exhibit G) states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and
a CAFGU member based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that he knew very well the brothers Raymond and
Reynaldo Manalo in their barangay for having been the Tanod Chief for
twenty (20) years. He alleged further that they are active supporters or
sympathizers of the CPP/NPA and whose elder brother Rolando Manalo
@ KA BESTRE is an NPA leader operating within the area. Being one of
the accused, he claims that on 14 Feb 2006 he was helping in the

construction of their concrete chapel in their place and he learned only


about the incident which is the abduction of Raymond and Reynaldo
Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims further that he is truly
innocent of the allegation against him as being one of the abductors and
he considers everything fabricated in order to destroy his name that
remains loyal to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular
case, the proof of linking them to the alleged abduction and
disappearance of Raymond and Reynaldo Manalo that transpired on 14
February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, is unsubstantiated. Their alleged involvement theretofore to
that incident is considered doubtful, hence, no basis to indict them as
charged in this investigation.
Though there are previous grudges between each families (sic) in the
past to quote: the killing of the father of Randy and Rudy Mendoza by @
KA BESTRE TN: Rolando Manalo, this will not suffice to establish a
fact that they were the ones who did the abduction as a form of
revenge. As it was also stated in the testimony of other accused claiming
that the Manalos are active sympathizers/supporters of the CPP/NPA,
this would not also mean, however, that in the first place, they were in
connivance with the abductors. Being their neighbors and as members of
CAFGUs, they ought to be vigilant in protecting their village from any
intervention by the leftist group, hence inside their village, they were
fully aware of the activities of Raymond and Reynaldo Manalo in so far
as their connection with the CPP/NPA is concerned.
V.

CONCLUSION

6. Premises considered surrounding this case shows that the alleged


charges of abduction committed by the above named respondents has not
been established in this investigation. Hence, it lacks merit to indict them
for any administrative punishment and/or criminal liability. It is therefore
concluded that they are innocent of the charge.
VI.

RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela
Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and
Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed. [69]
In this appeal under Rule 45, petitioners question the appellate courts
assessment of the foregoing evidence and assail the December 26, 2007 Decision
on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT
TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED,
AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND
MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS)
TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE
COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS
OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE
COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF
OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE
CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL MEDICAL
REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO
INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND
CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14,
2006 UNTIL AUGUST 12, 2007.[70]

The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.

The adoption of the Amparo Rule surfaced as a recurring proposition in the


recommendations that resulted from a two-day National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances sponsored by the Court
on July 16-17, 2007. The Summit was envisioned to provide a broad and factbased perspective on the issue of extrajudicial killings and enforced
disappearances,[71] hence representatives from all sides of the political and social
spectrum, as well as all the stakeholders in the justice system[72] participated in
mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule in light of the
prevalence of extralegal killing and enforced disappearances.[73] It was an exercise
for the first time of the Courts expanded power to promulgate rules to protect our
peoples constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law regime. [74] As
the Amparo Rule was intended to address the intractable problem of extralegal
killings and enforced disappearances, its coverage, in its present form, is confined
to these two instances or to threats thereof. Extralegal killings are killings
committed without due process of law, i.e., without legal safeguards or judicial
proceedings.[75] On the other hand, enforced disappearances are attended by the
following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the
direct or indirect acquiescence of the government; the refusal of the State to
disclose the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons outside the
protection of law.[76]
The writ of amparo originated in Mexico. Amparo literally means protection in
Spanish.[77] In 1837, de Tocquevilles Democracy in America became available
in Mexico and stirred great interest. Its description of the practice of judicial
review in the U.S. appealed to many Mexican jurists.[78] One of them, Manuel
Crescencio Rejn, drafted a constitutional provision for his native state, Yucatan,
[79]
which granted judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national
constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the
exercise and preservation of those rights granted to him by this

Constitution and by laws enacted pursuant hereto, against attacks by the


Legislative and Executive powers of the federal or state governments,
limiting themselves to granting protection in the specific case in
litigation, making no general declaration concerning the statute or
regulation that motivated the violation. [80]
Since then, the protection has been an important part of Mexican
constitutionalism.[81] If, after hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders the official, or the officials
superiors, to cease the violation and to take the necessary measures to restore the
petitioner to the full enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the limitations on judicial
power characteristic of the civil law tradition which prevails in Mexico. It enables
courts to enforce the constitution by protecting individual rights in particular cases,
but prevents them from using this power to make law for the entire nation.[82]

The writ of amparo then spread throughout the Western Hemisphere, gradually
evolving into various forms, in response to the particular needs of each country.
[83]
It became, in the words of a justice of the Mexican Federal Supreme Court, one
piece of Mexicos self-attributed task of conveying to the worlds legal heritage that
institution which, as a shield of human dignity, her own painful history conceived.
[84]
What began as a protection against acts or omissions of public authorities in
violation of constitutional rights later evolved for several purposes: (1) amparo
libertad for the protection of personal freedom, equivalent to the habeas
corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality
of statutes; (3) amparo casacion for the judicial review of the constitutionality and
legality of a judicial decision; (4) amparo administrativo for the judicial review of
administrative actions; and (5) amparo agrario for the protection of peasants rights
derived from the agrarian reform process.[85]
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries adopted an
all-encompassing writ to protect the whole gamut of constitutional rights, including
socio-economic
rights.[86] Other
countries
like Colombia, Chile, Germany and Spain, however, have chosen to limit the
protection of the writ of amparo only to some constitutional guarantees or
fundamental rights.[87]

In the Philippines, while the 1987 Constitution does not explicitly provide for the
writ of amparo, several of the above amparo protections are guaranteed by our
charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution,
the Grave Abuse Clause, provides for the judicial power to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. The
Clause accords a similar general protection to human rights extended by
the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo
libertad is comparable to the remedy of habeas corpus found in several provisions
of the 1987 Constitution.[88] The Clause is an offspring of the U.S. common law
tradition of judicial review, which finds its roots in the 1803 case ofMarbury v.
Madison.[89]
While constitutional rights can be protected under the Grave Abuse Clause through
remedies of injunction or prohibition under Rule 65 of the Rules of Court and a
petition forhabeas corpus under Rule 102,[90] these remedies may not be adequate
to address the pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a petition for a
writ of amparo through summary proceedings and the availability of appropriate
interim and permanent reliefs under the AmparoRule, this hybrid writ of the
common law and civil law traditions - borne out of the Latin American and
Philippine experience of human rights abuses - offers a better remedy to extralegal
killings and enforced disappearances and threats thereof. The remedy provides
rapid judicial relief as it partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs available to the petitioner; it is
not an action to determine criminal guilt requiring proof beyond reasonable doubt,
or liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and exhaustive
proceedings.[91]
The writ of amparo serves both preventive and curative roles in addressing the
problem of extralegal killings and enforced disappearances. It is preventive in that
it breaks the expectation of impunity in the commission of these offenses; it is
curative in that it facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action. In the long run, the

goal of both the preventive and curative roles is to deter the further commission of
extralegal killings and enforced disappearances.
In the case at bar, respondents initially filed an action for Prohibition, Injunction,
and Temporary Restraining Order[92] to stop petitioners and/or their officers and
agents from depriving the respondents of their right to liberty and other basic rights
on August 23, 2007,[93] prior to the promulgation of the Amparo Rule. They also
sought ancillary remedies including Protective Custody Orders, Appointment of
Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135,
Section 6 of the Rules of Court. When the Amparo Rule came into effect
on October 24, 2007, they moved to have their petition treated as
an amparo petition as it would be more effective and suitable to the circumstances
of the Manalo brothers enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners
first argument in disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and
giving full faith and credit to the incredible uncorroborated, contradicted,
and obviously scripted, rehearsed and self-serving affidavit/testimony of
herein respondent Raymond Manalo.[94]

In delving into the veracity of the evidence, we need to mine and refine the
ore of petitioners cause of action, to determine whether the evidence presented is
metal-strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following
causes of action, viz:
Section 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission of
a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof
required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. The
parties shall establish their claims by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate;otherwise, the privilege
shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as a reasonable


mind might accept as adequate to support a conclusion.[95]
After careful perusal of the evidence presented, we affirm the findings of the Court
of Appeals that respondents were abducted from their houses in Sito Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were
continuously detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated by respondent
Raymond Manalo in a clear and convincing manner. His account is dotted with
countless candid details of respondents harrowing experience and tenacious will to
escape, captured through his different senses and etched in his memory. A few
examples are the following: Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.[96] (N)ilakasan ng mga sundalo ang tunog na galing sa istiryo
ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. [97] May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas.[98] Tumigil ako sa may palaisdaan kung saan ginamit
ko ang bato para tanggalin ang mga kadena.[99] Tinanong ko sa isang kapit-bahay
kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang
babae na nakatira sa malapit na lugar.[100]
We affirm the factual findings of the appellate court, largely based on respondent
Raymond Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who were sufficiently
identified by the petitioners (herein respondents) to be military personnel
and CAFGU auxiliaries. Raymond recalled that the six armed men who
barged into his house through the rear door were military men based on

their attire of fatigue pants and army boots, and the CAFGU auxiliaries,
namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and
Pula de la Cruz, all members of the CAFGU and residents of Muzon, San
Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during the
abduction. Raymond was sure that three of the six military men were
Ganata, who headed the abducting team, Hilario, who drove the van, and
George. Subsequent incidents of their long captivity, as narrated by the
petitioners, validated their assertion of the participation of the elements of
the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the suspicion
that the petitioners were either members or sympathizers of the NPA,
considering that the abductors were looking for Ka Bestre, who turned out
to be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction
were, at best, merely superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on the one-sided version of
the CAFGU auxiliaries involved. This one-sidedness might be due to the
fact that the Provost Marshall could delve only into the participation of
military personnel, but even then the Provost Marshall should have
refrained from outrightly exculpating the CAFGU auxiliaries he
perfunctorily investigated
Gen. Palparans participation in the abduction was also established. At the
very least, he was aware of the petitioners captivity at the hands of men in
uniform assigned to his command. In fact, he or any other officer
tendered no controversion to the firm claim of Raymond that he (Gen.
Palparan) met them in person in a safehouse in Bulacan and told them
what he wanted them and their parents to do or not to be doing. Gen.
Palparans direct and personal role in the abduction might not have been
shown but his knowledge of the dire situation of the petitioners during
their long captivity at the hands of military personnel under his command
bespoke of his indubitable command policy that unavoidably encouraged
and not merely tolerated the abduction of civilians without due process of
law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth
Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had anything to do with

the abduction or the detention. Hilarios involvement could not, indeed, be


then established after Evangeline Francisco, who allegedly saw Hilario
drive the van in which the petitioners were boarded and ferried following
the abduction, did not testify. (See the decision of the habeas proceedings
at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L300 van in which the petitioners were brought away from their houses
on February 14, 2006. Raymond also attested that Hilario participated in
subsequent incidents during the captivity of the petitioners, one of which
was when Hilario fetched them from Fort Magsaysay on board a Revo
and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan
where they were detained for at least a week in a house of strong
materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren)
brought them to Sapang, San Miguel, Bulacan on board the Revo, to an
unfinished house inside the compound of Kapitan where they were kept
for more or less three months. (Exhibit D, rollo, p. 205) It was there
where the petitioners came face to face with Gen. Palparan. Hilario and
Efren also brought the petitioners one early morning to the house of the
petitioners parents, where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they would not again see their
sons should they join any rallies to denounce human rights violations.
(Exhibit D, rollo, pp. 205-206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen.
Palparan conversed on the occasion when Gen. Palparan required
Raymond to take the medicines for his health. (Exhibit D, rollo, p.
206) There were other occasions when the petitioners saw that Hilario
had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and
forced disappearance of the petitioners was established. The participation
of other military personnel like Arman, Ganata, Cabalse and Caigas,
among others, was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally
involved in the abduction. We also do, for, indeed, the evidence of their
participation is overwhelming.[101]
We reject the claim of petitioners that respondent Raymond Manalos statements
were not corroborated by other independent and credible pieces of evidence.

[102]

Raymonds affidavit and testimony were corroborated by the affidavit of


respondent Reynaldo Manalo. The testimony and medical reports prepared by
forensic specialist Dr. Molino, and the pictures of the scars left by the physical
injuries inflicted on respondents,[103] also corroborate respondents accounts of the
torture they endured while in detention. Respondent Raymond Manalos familiarity
with the facilities in Fort Magsaysay such as the DTU, as shown in his testimony
and confirmed by Lt. Col. Jimenez to be the Division Training Unit, [104] firms up
respondents story that they were detained for some time in said military facility.
In Ortiz v. Guatemala,[105] a case decided by the Inter-American Commission on
Human Rights, the Commission considered similar evidence, among others, in
finding that complainant Sister Diana Ortiz was abducted and tortured by agents of
the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured
in early November 1989. The Commissions findings of fact were mostly based on
the consistent and credible statements, written and oral, made by Sister Ortiz
regarding her ordeal.[106] These statements were supported by her recognition of
portions of the route they took when she was being driven out of the military
installation where she was detained.[107] She was also examined by a medical
doctor whose findings showed that the 111 circular second degree burns on her
back and abrasions on her cheek coincided with her account of cigarette burning
and torture she suffered while in detention.[108]
With the secret nature of an enforced disappearance and the torture perpetrated on
the victim during detention, it logically holds that much of the information and
evidence of the ordeal will come from the victims themselves, and the veracity of
their account will depend on their credibility and candidness in their written and/or
oral statements. Their statements can be corroborated by other evidence such as
physical evidence left by the torture they suffered or landmarks they can identify
in the places where they were detained. Where powerful military officers are
implicated, the hesitation of witnesses to surface and testify against them comes as
no surprise.
We now come to the right of the respondents to the privilege of the writ
of amparo. There is no quarrel that the enforced disappearance of both respondents
Raymond and Reynaldo Manalo has now passed as they have escaped from
captivity and surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not free in every sense

of the word[109] as their movements continue to be restricted for fear that people
they have named in their Judicial Affidavits and testified against (in the case of
Raymond) are still at large and have not been held accountable in any way. These
people are directly connected to the Armed Forces of thePhilippines and are, thus,
in a position to threaten respondents rights to life, liberty and security.
[110]
(emphasis supplied) Respondents claim that they are under threat of being
once again abducted, kept captive or even killed, which constitute a direct
violation of their right to security of person.[111]
Elaborating on the right to security, in general, respondents point out that
this right is often associated with liberty; it is also seen as an expansion of rights
based on the prohibition against torture and cruel and unusual
punishment. Conceding that there is no right to security expressly mentioned in
Article III of the 1987 Constitution, they submit that their rights to be kept free
from torture and from incommunicado detention and solitary detention
places[112] fall under the general coverage of the right to security of person under
the writ of Amparo. They submit that the Court ought to give an expansive
recognition of the right to security of person in view of the State Policy under
Article II of the 1987 Constitution which enunciates that, The State values the
dignity of every human person and guarantees full respect for human
rights. Finally, to justify a liberal interpretation of the right to security of person,
respondents cite the teaching in Moncupa v. Enrile[113] that the right to liberty may
be made more meaningful only if there is no undue restraint by the State on the
exercise of that liberty[114] such as a requirement to report under unreasonable
restrictions that amounted to a deprivation of liberty [115] or being put under
monitoring and surveillance.[116]
In sum, respondents assert that their cause of action consists in the threat to their
right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of personfinds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search

warrant or warrant of arrest shall issue except upon probable cause to be


determined personally by the judge
At the core of this guarantee is the immunity of ones person, including the
extensions of his/her person houses, papers, and effects against government
intrusion. Section 2 not only limits the states power over a persons home and
possessions, but more importantly, protects the privacy and sanctity of the person
himself.[117] The purpose of this provision was enunciated by the Court in People v.
CFI of Rizal, Branch IX, Quezon City, viz: [118]
The purpose of the constitutional guarantee against unreasonable searches
and seizures is to prevent violations of private security in person and
property and unlawful invasion of the security of the home by officers of
the law acting under legislative or judicial sanction and to give remedy
against such usurpation when attempted. (Adams v. New York,
192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy
is an essential condition to the dignity and happiness and to the peace
and security of every individual, whether it be of home or of persons
and correspondence. (Taada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable searches and seizures must
be deemed absolute as nothing is closer to a mans soul than the
serenity of his privacy and the assurance of his personal security. Any
interference allowable can only be for the best causes and reasons.
[119]
(emphases supplied)
While the right to life under Article III, Section 1[120] guarantees essentially
the right to be alive[121] - upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a guarantee of the secure quality
of this life, viz: The life to which each person has a right is not a life lived in fear
that his person and property may be unreasonably violated by a powerful
ruler. Rather, it is a life lived with the assurance that the government he established
and consented to, will protect the security of his person and property. The ideal of
security in life and property pervades the whole history of man. It touches every
aspect of mans existence.[122] In a broad sense, the right to security of person
emanates in a persons legal and uninterrupted enjoyment of his life, his limbs, his
body, his health, and his reputation. It includes the right to exist, and the right to
enjoyment of life while existing, and it is invaded not only by a deprivation of life
but also of those things which are necessary to the enjoyment of life according to
the nature, temperament, and lawful desires of the individual.[123]

A closer look at the right to security of person would yield various permutations of
the exercise of this right.
First, the right to security of person is freedom from fear. In its whereas
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that a
world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of
the common people. (emphasis supplied) Some scholars postulate that freedom
from fear is not only an aspirational principle, but essentially an individual
international human right.[124] It is the right to security of person as the word
security itself means freedom from fear.[125] Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.[126] (emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of


the International Covenant on Civil and Political Rights (ICCPR) also provides
for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established
by law. (emphasis supplied)

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


In the context of Section 1 of the Amparo Rule, freedom from fear is the right
and any threat to the rights to life, liberty or security is the actionable
wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of
action. Fear caused by the same stimulus can range from being baseless to wellfounded 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 theamparo context, it is
more correct to say that the right to security is actually the freedom from
threat. Viewed in this light, the threatened with violation Clause in the latter part of
Section 1 of the Amparo Rule is a form of violation of the right to security
mentioned in the earlier part of the provision.[127]
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, ones body cannot be searched or invaded without
a search warrant.[128] Physical injuries inflicted in the context of extralegal killings

and enforced disappearances constitute more than a search or invasion of the


body. It may constitute dismemberment, physical disabilities, and painful physical
intrusion. As the degree of physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical injuries constitute a crime against
persons because they are an affront to the bodily integrity or security of a person.[129]
Physical torture, force, and violence are a severe invasion of bodily
integrity. When employed to vitiate the free will such as to force the victim to
admit, reveal or fabricate incriminating information, it constitutes an invasion of
both bodily and psychological integrity as the dignity of the human person
includes the exercise of free will. Article III, Section 12 of the 1987 Constitution
more specifically proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means
which vitiate the free will shall be used against him (any person under
investigation for the commission of an offense).Secret detention places,
solitary, incommunicado or other similar forms of detention are
prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will
- although not involving invasion of bodily integrity - nevertheless constitute a
violation of the right to security in the sense of freedom from threat as aforediscussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of
persons under investigation for the commission of an offense. Victims of enforced
disappearances who are not even under such investigation should all the more be
protected from these degradations.
An overture to an interpretation of the right to security of person as a right
against torture was made by the European Court of Human Rights (ECHR) in the
recent case ofPopov v. Russia.[130] In this case, the claimant, who was lawfully
detained, alleged that the state authorities had physically abused him in prison,
thereby violating his right to security of person. Article 5(1) of the European
Convention on Human Rights provides, viz: Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law ...
(emphases supplied) Article 3, on the other hand, provides that (n)o one shall be

subjected to torture or to inhuman or degrading treatment or punishment. Although


the application failed on the facts as the alleged ill-treatment was found baseless,
the ECHR relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of
domestic authorities at the time when they could reasonably have been
expected to take measures in order to ensure hissecurity and to
investigate the circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply
with the procedural obligation under Art.3 to conduct an effective
investigation into his allegations.[131] (emphasis supplied)

The U.N. Committee on the Elimination of Discrimination against Women has also
made a statement that the protection of the bodily integrity of women may also be
related to the right to security and liberty, viz:
gender-based violence which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general
international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against Women). These
rights and freedoms include . . . the right to liberty and security of
person.[132]
Third, the right to security of person is a guarantee of protection of
ones rights by the government. In the context of the writ of amparo, this right
is built into the guarantees of the right to life and liberty under Article III,
Section 1 of the 1987 Constitution and the right to security of person (as
freedom from threat and guarantee of bodily and psychological integrity) under
Article III, Section 2. The right to security of person in this third sense is a
corollary of the policy that the State guarantees full respect for human rights under
Article II, Section 11 of the 1987 Constitution.[133] As the government is the chief
guarantor of order and security, the Constitutional guarantee of the rights to life,
liberty and security of person is rendered ineffective if government does not afford
protection to these rights especially when they are under threat. Protection includes
conducting effective investigations, organization of the government apparatus to

extend protection to victims of extralegal killings or enforced disappearances (or


threats thereof) and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case,[134] viz:
(The duty to investigate) must be undertaken in a serious manner and
not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends
upon the initiative of the victim or his family or upon their offer of
proof, without an effective search for the truth by the government. [135]

This third sense of the right to security of person as a guarantee of


government protection has been interpreted by the United Nations Human Rights
Committee[136] in not a few cases involving Article 9 [137] of the ICCPR. While the
right to security of person appears in conjunction with the right to liberty under
Article 9, the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily
be a deprivation of liberty for the right to security of person to be
invoked. In Delgado Paez v. Colombia,[138] a case involving death threats to a
religion teacher at a secondary school in Leticia, Colombia, whose social views
differed from those of the Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its
location as a part of paragraph one could lead to the view that the right to security
arises only in the context of arrest and detention. The travaux
prparatoires indicate that the discussions of the first sentence did indeed focus on
matters dealt with in the other provisions of article 9. The Universal Declaration
of Human Rights, in article 3, refers to the right to life, the right to liberty
and the right to security of the person. These elements have been dealt with
in separate clauses in the Covenant. Although in the Covenant the only
reference to the right of security of person is to be found in article 9, there is
no evidence that it was intended to narrow the concept of the right to security
only to situations of formal deprivation of liberty. At the same time, States
parties have undertaken to guarantee the rights enshrined in the Covenant.It
cannot be the case that, as a matter of law, States can ignore known threats to
the life of persons under their jurisdiction, just because that he or she is not
arrested or otherwise detained. States parties are under an obligation to take
reasonable and appropriate measures to protect them. An interpretation of
article 9 which would allow a State party to ignore threats to the personal
security of non-detained persons within its jurisdiction would render totally
ineffective the guarantees of the Covenant.[139] (emphasis supplied)

The Paez ruling was reiterated in Bwalya v. Zambia,[140] which involved a


political activist and prisoner of conscience who continued to be intimidated,
harassed, and restricted in his movements following his release from detention. In
a catena of cases, the ruling of the Committee was of a similar
import: Bahamonde v. Equatorial Guinea,[141] involving discrimination,
intimidation and persecution of opponents of the ruling party in that
state; Tshishimbi v. Zaire,[142] involving the abduction of the complainants
husband who was a supporter of democratic reform in Zaire; Dias v. Angola,
[143]
involving the murder of the complainants partner and the harassment he
(complainant) suffered because of his investigation of the murder; and Chongwe v.
Zambia,[144] involving an assassination attempt on the chairman of an opposition
alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the right
to security not only as prohibiting the State from arbitrarily depriving liberty, but
imposing a positive duty on the State to afford protection of the right to liberty.
[145]
The ECHR interpreted the right to security of person under Article 5(1) of the
European Convention of Human Rights in the leading case on disappearance of
persons, Kurt v. Turkey.[146] In this case, the claimants son had been arrested by
state authorities and had not been seen since. The familys requests for information
and investigation regarding his whereabouts proved futile. The claimant suggested
that this was a violation of her sons right to security of person. The ECHR
ruled, viz:
... any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law but
must equally be in keeping with the very purpose of Article 5, namely to
protect the individual from arbitrariness... Having assumed control over
that individual it is incumbent on the authorities to account for his or her
whereabouts.For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into
an arguable claim that a person has been taken into custody and has
not been seen since.[147] (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case
at bar, we now determine whether there is a continuing violation of respondents
right to security.

First, the violation of the right to security as freedom from threat to


respondents life, liberty and security.
While respondents were detained, they were threatened that if they escaped, their
families, including them, would be killed. In Raymonds narration, he was tortured
and poured with gasoline after he was caught the first time he attempted to escape
from Fort Magsaysay. A call from a certain Mam, who wanted to see him before
he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be
killed has come to pass. It should be stressed that they are now free from captivity
not because they were released by virtue of a lawful order or voluntarily freed by
their abductors. It ought to be recalled that towards the end of their ordeal,
sometime in June 2007 when respondents were detained in a camp in
Limay, Bataan, respondents captors even told them that they were still deciding
whether they should be executed. Respondent Raymond Manalo attested in his
affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3
o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay
dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o
hindi.[148]

The possibility of respondents being executed stared them in the eye while
they were in detention. With their escape, this continuing threat to their life is
apparent, moreso now that they have surfaced and implicated specific officers in
the military not only in their own abduction and torture, but also in those of other
persons known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and
Manuel Merino, among others.
Understandably, since their escape, respondents have been under concealment and
protection by private citizens because of the threat to their life, liberty and
security. The threat vitiates their free will as they are forced to limit their
movements or activities.[149] Precisely because respondents are being shielded from
the perpetrators of their abduction, they cannot be expected to show evidence of
overt acts of threat such as face-to-face intimidation or written threats to their life,
liberty and security. Nonetheless, 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.
Next, the violation of the right to security as protection by the
government. Apart from the failure of military elements to provide protection to
respondents by themselves perpetrating the abduction, detention, and torture, they
also miserably failed in conducting an effective investigation of respondents
abduction as revealed by the testimony and investigation report of petitioners own
witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and
one-sided. He merely relied on the Sworn Statements of the six implicated
members of the CAFGU and civilians whom he met in the investigation for the
first time. He was present at the investigation when his subordinate Lingad was
taking the sworn statements, but he did not propound a single question to ascertain
the veracity of their statements or their credibility. He did not call for other
witnesses to test the alibis given by the six implicated persons nor for the family or
neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in
the event the writ of amparo is issued by a competent court against any members
of the AFP, which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence; identification of
witnesses and securing statements from them; determination of the cause, manner,
location and time of death or disappearance; identification and apprehension of the
person or persons involved in the death or disappearance; and bringing of the
suspected offenders before a competent court.[150] Petitioner AFP Chief of Staff
also submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he
immediately caused to be issued a directive to the units of the AFP for the purpose
of establishing the circumstances of the alleged disappearance and the recent
reappearance of the respondents, and undertook to provide results of the
investigations to respondents.[151] To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on October

31, 2007, respondents have not been furnished the results of the investigation
which they now seek through the instant petition for a writ of amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion
that there is a violation of respondents right to security as a guarantee of protection
by the government.
In sum, we conclude that respondents right to security as freedom from threat is
violated by the apparent threat to their life, liberty and security of person. Their
right to security as a guarantee of protection by the government is likewise
violated by the ineffective investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners
question.
First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file
with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical
reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production
order sought by respondents partakes of the characteristics of a search
warrant. Thus, they claim that the requisites for the issuance of a search warrant
must be complied with prior to the grant of the production order, namely: (1) the
application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there
exists probable cause with one specific offense; and (4) the probable cause must be
personally determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce. [152] In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague allegations

made by respondent Raymond Manalo in his unverified declaration and affidavit,


the documents respondents seek to be produced are only mentioned generally by
name, with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present case
as the involvement of petitioners in the abduction has not been shown.
Petitioners arguments do not hold water. The production order under
the Amparo Rule should not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987 Constitution. This
Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand
of the people such as respondents.
Instead, the amparo production order may be likened to the production of
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure
which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce and permit
the inspection and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers, books of accounts,
letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control

In Material Distributors (Phil.) Inc. v. Judge Natividad, [153] the respondent


judge, under authority of Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books and papers of Material
Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on
the ground that it violated the search and seizure clause. The Court struck down the
argument and held that the subpoena pertained to a civil procedure that cannot be
identified or confused with unreasonable searches prohibited by the Constitution
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook to
provide results of the investigations conducted or to be conducted by the concerned
unit relative to the circumstances of the alleged disappearance of the persons in

whose favor the Writ of Amparo has been sought for as soon as the same has been
furnished Higher headquarters.
With respect to the second and third reliefs, petitioners assert that the disclosure
of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas, as well as the submission of a list of medical personnel, is
irrelevant, improper, immaterial, and unnecessary in the resolution of the petition
for a writ of amparo. They add that it will unnecessarily compromise and
jeopardize the exercise of official functions and duties of military officers and even
unwittingly and unnecessarily expose them to threat of personal injury or even
death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and detention, is relevant in
ensuring the safety of respondents by avoiding their areas of territorial
jurisdiction. Such disclosure would also help ensure that these military officers can
be served with notices and court processes in relation to any investigation and
action for violation of the respondents rights. The list of medical personnel is also
relevant in securing information to create the medical history of respondents and
make appropriate medical interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these
rights are snuffed out from victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that gives voice to preys of silent guns
and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision
of the Court of Appeals dated December 26, 2007 is affirmed.

SO ORDERED.

G.R. No. 70748 October 21, 1985


IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LAURENTE C. ILAGAN,
ANTONIO B. ARELLANO, and MARCOS D. RISONAR, JR., Integrated Bar of the Philippines
[IBP]; Free Legal Assistance Group [FLAG] and Movement of Attorneys For Brotherhood,
Integrity and Nationalism, Inc., [MABINI], petitioners,
vs.
HON. JUAN PONCE ENRILE, Minister of National Defense; LT. GEN. FIDEL V. RAMOS, Acting
Chief of Staff, Armed Forces of the Philippines; BRIG. GEN. DIONISIO TAN-GATUE, PC-INP
Regional Commander for Region XI, Camp Catitipan, Davao City, respondents.
Roberto Concepcion, Jose B.L. Reyes, Raul S. Goco, Joker Arroyo, Haydee Yorac, Fulgencio S.
Factoran, Francisco I. Chavez , Lorenzo M. Taada, Wigberto Taada and Martiniano Vivo for
petitioners.
The Solicitor General for respondents.

MELENCIO-HERRERA, J.:
This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines (IBP), the Free
Legal Assistance Group (FLAG); and the Movement of Attorneys for Brotherhood, Integrity and
Nationalism (MABINI) on behalf of Attorneys Laurente C. Ilagan, Antonio B. Arellano, and Marcos
Risonar, Jr.
The facts follow:
On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PCINP and detained at Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry
of National Defense. On that same day, fifteen lawyers from the IBP Davao Chapter visited Atty.

Ilagan. One of the visiting lawyers, Atty. Antonio Arellano, was also arrested and detained on the
basis of an unsigned Mission Order. On May 13, 1985, the military sent word to the IBP Davao
Chapter that Attorney Marcos Risonar would likewise be arrested. The latter went to Camp Catitipan
to verify his arrest papers and was detained on the basis of a Mission Order signed by General
Echavarria, Regional Unified Commander.
This petition for habeas corpus was then filed by and on behalf of the three arrested lawyers
hereinafter referred to as the detained attorneys on the ground that their arrests were illegal and
violative of the Constitution, since arrests cannot be made on the basis of Mission Orders. and that
there appears to be a military campaign to harass lawyers involved in national security cases.
On May 16, 1985, the Court issued the Writ, required a Return, and set the petition for hearing on
May 23, 1985.
In their Return, respondents contended that the detained attorneys were arrested on the basis of a
PDA issued by the President on January 25, 1985; that the Writ of habeas corpus is suspended as to
them by virtue of Proclamation No. 2045-A; and that pursuant to the ruling in Garcia-Padilla vs.
Ponce Enrile, et al, 1 Courts lack the authority to inquire into the cause and validity of detention of
persons held pursuant to the suspension. Respondents further expounded on the state of rebellion in
Davao City on the basis of seized subversive documents, implying that the detained attorneys played
active roles in organizing mass actions of the Communist Party of the Philippines and the National
Democratic Front. Respondents then prayed for the denial of the petition.
During the hearing on May 23, 1985, the detained attorneys narrated to the Court the circumstances
of their arrest and detention. Counsel for the respondents, on the other hand, presented evidence of
subversive activities in Davao, but due to lack of evidence linking the detained attorneys with the
alleged subversive activities, the Court, on the same day resolved to order the temporary release of
the detained attorneys on the recognizance of the principal counsel of petitioner's, namely, retired
Chief Justice Roberto Concepcion and retired Associate Justice J.B.L. Reyes. The Court further
resolved to give petitioners ten days within which to file a traverse to the Return of the Writ and the
respondents ten days to file a Reply thereto.
The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion stating that the
detained attorneys had not yet been released and praying that they be released to the custody of the
principal counsel of petioners at the Supreme Court.
On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this Court's Order of
Release reiterating that the suspension of the Writ of Habeas Corpus has the effect of ousting the
Court of its jurisdiction to hear the case, and attached thereto classified documents consisting of the
Report of respondent Brig. Gen. Tan-Gatue stating that the detained attorneys "were arrested not on
the basis of their 'lawyering' but for specific acts of rebellion and economic sabotage as well as for
their leadership in the CPP" ... "even to the extent of attending CPP and NPA rites and using their
profession as lawyers as cover-up for their activities in furtherance of CPP goals and objectives;"
and that the detained attorneys were involved in the Welgang Bayan in Davao City, a mass action
"with demands for the armed overthrow of the government." Sworn statements of several persons
also implicated the detained attorneys in alleged subversive activities. Respondents added that,
while there is a Court Order directing release, they, too, are under orders, pursuant to the PDA, to
hold in custody the detained attorneys until ordered released by the President or by his duly
authorized representative, and that the PDA, when issued, constitutes authority to preventively
detain them for a period not exceeding one year.

On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that an Information for
Rebellion was filed on May 27, 1985 against the detained attorneys before the Regional Trial Court
of Davao City, Branch X, docketed as Criminal Case No. 12,349; that a Warrant of Arrest had been
issued against them; and praying that this Petition be dismissed for having been rendered moot and
academic.
On May 30, 1985, petitioners filed an Opposition to respondents' Urgent Motion/Manifestation
contending that since the detained attorneys were not given the benefit of preliminary investigation,
they were denied their constitutional right to due process; consequently, the Information for Rebellion
filed against them is void. Respondents, on the other hand, filed on the same day a Comment to
petitioners' Manifestation and Motion reiterating their prayer for the dismissal of the petition on the
ground of mootness by virtue of the proceedings before the Regional Trial Court of Davao.
On June 3, 1985, petitioners filed a consolidated Comment and Traverse contending that the
"Welgang Bayans" were in legitimate exercise of the constitutional right of expression and assembly
to petition the government for redress of grievances; that the detained attorneys' participation was
limited to serving in the legal panel and the negotiating panels; that Proclamation No. 2045 is
unconstitutional because there exists no factual or legal basis for the suspension of the Writ
of Habeas Corpus as provided for in the Constitution; that the evidence presented by respondents
against the detained attorneys are of a doubtful and flimsy nature; and that the PDA is
unconstitutional because it violates Section 3, Article IV, of the Constitution prohibiting unreasonable
searches and seizures.
On July 1, 1985, petitioners filed a Manifestation and Motion praying that the Court immediately
resolve the issues raised as the case affects not only the detained attorneys but the entire legal
profession and the administration of justice as well.
Finally, after two extensions granted by the Court, on July 8, 1985, respondents filed a Consolidated
Reply, reiterating first, the validity of Proclamation No. 2045, as amended by Proclamation No. 2045A and of the PDA issued against petitioners as an incident to the suspension of the privilege of the
Writ of habeas corpus: secondly, the ruling in Garcia-Padilla vs. Ponce Enrile, et al.; 2 and thirdly, its
prayer for the dismissal of the petition on the ground of mootness by virtue of the filing of an Information
for Rebellion against the detained attorneys before the Regional Trial Court of Davao City .
As contended by respondents, the petition herein has been rendered moot and academic by virtue
of the filing of an Information against them for Rebellion, a capital offense, before the Regional Trial
Court of Davao City and the issuance of a Warrant of Arrest against them. 3 The function of the special
proceeding of habeas corpus is to inquire into the legality of one's detention. Now that the detained
attorneys' incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed
against them before the Regional Trial Couravao City, the remedy of habeas corpus no longer lies. The
Writ had served its purpose. 4
SEC. 4. When writ not allowed or discharge authorized.-If it appears the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment, or order of a court of record,
and that the court or judge had jurisdiction to issue the process, render the judgment,
or make the order, the writ shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment or order. Nor shall anything in this rule be held to
authorize to discharge of a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment. (Rule 102)

If the detained attorneys question their detention because of improper arrest, or that no preliminary
investigatin has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a
Motion before the trial court to quash the Warrant of Arrest, and /or the Information on grounds
provided by the Rules or to ask for an investigation / reinvestigation of the case. 5 Habeas
corpus would not lie after the Warrant of commitment was issued by the Court on the basis of the
Information filed against the accused. 6 So is it explicitly provided for by Section. 14, Rule of 102 of the
Rules of Court, reading:
SEC. 14. When person lawfully imprisoned recommitted and when let to bail.- If it
appears that the prisoner was lawfully committed, and is plainly and specifically
charged in the warrant of commitment with an offense punishable by death, he shall
not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a
charge of having committed an offense not so punishable, he may be recommitted to
imprisonment or admitted to bail in the discretion of the court or judge. . . .
But petitioners submit that because of the absence of a preliminary investigation, the Information for
Rebellion filed against the detained attorneys is void and the Court below could not have acquired
jurisdiction over them, and consequently, they are entitled to release.
On the other hand, respondents contend that a preliminary investigation was unnecessary since the
detained attorneys were lawfully arrested without a warrant.
Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense cognizable by the
Regional Trial Court shall be filed without a preliminary investigation having been first conducted,
except as provided for in Section 7 of Rule 112. 7 The Information filed by the City Fiscal before the
Regional Trial Court of the City of Davao fell within the exception. Thus, the Verification reads:
VERIFICATION
I HEREBY CERTIFY that I am filing this Information in pursuance with Rule 112,
Section 7 of the 1985 Rules on criminal Procedure, wherein after examining the
affidavits of the government witnesses and other documents attached to the records,
I found sufficient ground to hold respondents for trial.
(SGD.) EMMANUEL E. GALICIA
City Fiscal
Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to provides:
SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without preliminary investigation having been first conducted on the basis of the
affidavit of the offended party or arrested officer or person.
However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. Notwithstanding such waiver, he may

apply for bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule.
Section 5, Rule 113 of the same Rules enumerates the instances when an arrest without warrant is
lawful.
SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs [al and [b] hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 112, Section 7. (Rule 113)
Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto or immediately
thereafter, while paragraph (c) refers to escaping prisoners. As to whether the detained attorneys fall
under either of the first two instances enumerated is a question of fact, which will need the
presentation of evidence and is more properly within the province of the trial Court.
The question of absence of a proper preliminary investigation is also better inquired into by the Court
below. When so raised, this Court, speaking through Mr. Justice Claudio Teehankee, has held that
the trial Court is called upon "not to dismiss the information but hold the case in abeyance and
conduct its own investigation or require the fiscal to hold a reinvestigation. 8 As stressed in People vs.
Casiano, 1 SCRA 478 [1961], this is the proper procedure since the "absence of such investigation did
not impair the validity of the Information or otherwise render it defective. Much less did it affect the
jurisdiction of the Court of First Instance". 9 The right to a preliminary investigation, being waivable, does
not argue against the validity of the proceedings, the most that could have been done being to remand
the case in order that such investigation could be conducted. 10
... The proper forum before which absence of preliminary investigation should be
ventilated is the Court of First Instance, not this Court. Reason is not wanting for this
view. Absence of preliminary investigation does not go to the jurisdiction of the court
but merely to the regularity of the proceedings. It could even be waived. Indeed, it is
frequently waived. These are matters to be inquired into by the trial court, not an
appellate Court. 11

The Nolasco case, which petitioners invoke, 12 wherein this Court ordered the release of two of the
accused, is not on all fours with the case at bar as, in that case, the accused were charged only with
Illegal Possession of Subversive documents under Presidential Decree No. 33, which is punishable
by prision correccional in its minimum period, and the trial Court had granted bail; whereas in this case,
petitioners are charged with the capital offense of Rebellion, and the trial Court has not allowed bail.
WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having become moot and
academic. Petitioners are now detained by virtue of a Warrant of Arrest issued by the Regional Trial
Court of Davao City in relation to the criminal case for Rebellion filed against them before said Court.
SO ORDERED.
Makasiar, C.J., Plana, Escolin Relova, Gutierrez, Jr., De la Fuente Cuevas and Alampay, JJ.,
concur.
Aquino, J., concur in the result

Separate Opinions

I wish to express my views on other aspects of this case with which the majority does
not concur.
It is to be noted that in the Warrant of Arrest issued by the Executive Judge of the Regional Trial
Court of Davao City "no bail" has been indicated. Neither was bail recommended by the City Fiscal.
However, pursuant to Presidential Decree No. 1834, even as amended by Presidential Decree No.
1974 (May 2, 1985), the crime of Rebellion is still punishable by "reclusion perpetua to death."
Presidential Decree No. 1974 did not reduce the penalty for Rebellion under Article 135 of the
Revised Penal Code, as amended by Presidential Decree No. 1834, but merely "tempered" the
penalties for "conspiracy or proposal or inciting to commit such crimes," limiting the amended
provisions to Articles 136, 138, 141, 142, 142-B, 143, 144, 146, and 147, but not to Article 135 of the
Revised Penal Code.
Considering, therefore, that the detained attorneys are not entitled to bail as a matter of right before
the prosecution is heard on its evidence, and observing fealty to the Constitutional mandate that "all
persons, except those charged with capital offenses, when evidence of guilt is strong, shall before
conviction, be bailable by sufficient sureties" (Section 18, Article IV, 1973 Constitution), the Regional
Trial Court of Davao City, Branch X, should be directed in Criminal Case No. 12,349, to determine
whether the evidence of guilt against the detained attorneys is strong, and considering the gravity of
the offense charged, it should likewise be required to hear the case to completion with deliberate
speed so that their guilt or innocence may be determined without delay.
Furthermore, pending resolution by this Court of the crucial issues raised in Garcia-Padilla and
in Integrated Bar of the Philippines, et al vs. Min. Juan Ponce Enrile, et al. (G.R. No. 66610)
consolidated with National Bar Association of the Philippines, et all vs. Min. Juan Ponce Enrile, et
al. (G.R. No. 66706), it is my view that individuals against whom PDA's have been issued should be

furnished with the original, or the duplicate original, or a certified true copy issued by the official
having official custody of the PDA, at the time of apprehension. Pursuant to the Rules and
Regulations Implementing Presidential Decree No. 1877, as amended by Presidential Decree No.
1877-A, the PDA's should also be enforced within 24 hours in the Metro Manila area or within 48
hours outside Metro Manila, upon receipt by the unit concerned. In this case, although the record
does not show such date of receipt, the fact is that the PDA was issued on January 25, 1985 but the
detained attorneys were arrested only on May 10 and 13, 1985, respectively. The four-month gap
can give room for doubt as to its authenticity and whether, in fact, the detained attorneys posed "any
appreciable danger to national security and public order. "
The paramount consideration should be that the Constitutional "right of the people to be secure in
their persons ... against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated" (Section 3, Article IV, 1973 Constitution). Until the issue of the validity
of the PDA is finally resolved, PDA's applied for on the basis of militancy alone in national security
cases, of insufficient surveillance, or unsupported deductions and inferences, contravene the
Constitutional mandate that "no 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" (ibid.).
Adherence to Constitutional mandates could ease the current discontent and growing insurgency
gripping the nation today. The objective should be to fight for the hearts and minds of the people by
observing the rule of law.
Lastly I venture to invite attention, particularized for this case, that the Constitution provides for the
vesting of judicial power not only in this Court but also in inferior Courts established by law. While
this Court can reverse and modify, on appeal or certiorari, actuations of inferior Courts, the latter, as
wielders of judicial power, can not only invoke, but also be entitled to, "procedural due process".
Without a hearing, howsoever formal, the involved Regional Trial Court branch in Davao City should
not be deprived of jurisdiction, substantial or even initial, over persons it has ordered, or confirmed
as, arrested.
TEEHANKEE, J., dissenting
More than four (4) agonizing months * after this Court issued its near-unanimous Resolution 1 of May
23, 1985, after hearing the parties in oral argument in the morning, ordering the immediate release of the
three petitioners-detainees, Attys. Laurente C. Ilagan, Antonio B. Arellano and Marcos D. Risonar, Jr., on
the recognizance of their principal counsel, retired Chief Justice Roberto Concepcion, Chairman,
Integrated Bar of the Philippines national legal aid committee, and retired Justice Jose B. L. Reyes,
President Emeritus of the Integrated Bar of the Philippines, as well as the president and officers of their
own IBP Davao chapter, which release it had expressly ordered to be "immediately executory", this Court
has now refused to enforce its own release order. Repeated motions for enforcement of this Court's
"immediately executory" order of release as against respondents' "brazen disrespect and contemptous
disregard" 2 thereof were filed in vain. It has instead dismissed the petition for habeas corpus for having
become "moot and academic, " because of the arbitrary filing of precipitate, vindictive and
oppressive charges against them for the capital crime of rebellion without hearing or preliminary
investigation and in gross violation of their constitutional right and rudimentary requirements of due
process and fair play.
I. Antecedent Facts.The three lawyers, Attys. Ilagan, Arellano and Risonar, Jr., FLAG (Free Legal
Assistance Group) human rights lawyers of Davao City, were illegally arrested and brought to the
military stockade at Camp Catitipan, Davao City one after the other on May 10, 11 and 13, 1985,
upon mission orders issued by the prime mover and initiator of the operations, respondent General
Dionisio S. Tan-Guate, Jr. (hereinafter referred to as respondent general). The mission orders (which
are military orders for carrying out a specific mission or military operations) are not warrants of

arrest, much less Preventive Detention Actions (PDA's). The orders did not state what were the
offenses allegedly committed, although indicating that they were being issued pursuant to a PDA,
which was never shown nor produced by respondent general until a xerox copy thereof dated as
early as January 25, 1985 was submitted with the respondents' return to the writ. No copy thereof
was given the petitioners nor were they given any reason for which the three lawyers were taken into
military custody.
The first lawyer, Atty. Ilagan, was picked up at 10:45 a.m. on May 10th while taking a snack with
some friends at a place in front of his office at C.M. Recto St. His military arrestors denied his
request to be allowed to go to his office "a few meters away" so he could give instructions to his
associates about a case scheduled for hearing that afternoon. 3 The second lawyer, Atty, Arellano, a
law professor at the Ateneo de Davao law school, was one of fifteen IBP Davao Chapter lawyers who
insisted on visiting Atty. Ilagan at the military camp on May 11th despite the military custodians' initial
refusals that no visitors could be allowed "unless first cleared by R-2 (intelligence) or Gen. Tan-Guates
aide." After the visit, he was told that he was under arrest under the mission order which was merely
shown to him and he was no longer all owed to leave the camp. As he told the Court: "I just (went) to visit
my colleague, a member of the IBP, to render legal assistance as I'm supposed to do as an officer of the
Court. I came to visit, I came to render legal assistance. I was arrested and detained." 4 On May 13th, the
third lawyer, Atty. Risonar, Jr.. having received word from the military that he was wanted, presented
himself at Camp Catitipan. He was not shown even the mission order, much less a PDA or warrant of
arrest. He was so shaken up by the traumatic experience of being himself wanted and arrested by the
military (not having been given even a traffic violation ticket in his whole life) instead of his accustomed
role of helping hapless persons who have come across their path and assisting as a member of the
Human Rights Committee "not only political detainees, but workers, students, teachers and urban
community" that he almost broke down at the hearing and had to be asked to take firm hold of himself. 5
After the filing of the petition at bar and the issuance of the writ of habeas corpus to produce in court
the persons of the three lawyers at the scheduled May 23rd hearing, they were transferred at 10
p.m. of the night of May 20th to the Metro-Discom stockade in Davao City and herded with a fourth
person in a cramped cell, "a very small cell good only for 2 people. " The next day, they were picked
up by "2 PC jeeps loaded with fully armed men" and in the words of Atty. Arellano, "in the presence
of the detainees in the stockade, ... many of whom are my clients and in the presence of their
visitors, ... and in the presence of our wives, ... we were handcuffed like ordinary criminals, and we
were transported from that stockade up to the airport and from the airport we were brought to Manila
and then we were brought to Camp Bicutan." 6 They have been since detained there, their lives
shattered, uprooted from their homes and families, and deprived of their livelihood and their families left to
fend for themselves.
The Integrated Bar of the Philippines and other petitioners complain in their verified petition that
"(B)eyond the harassment and the illegal arrest and detention of these three advocates, are grave
implications for the craft. Their arrest appears to be a prelude to a campaign to ultimately deprive the
accused in national security cases of the services of counsel in violation of the Constitution," citing "a
readily discernible pattern from events in the recent past" including the killings of FLAG Atty. Zorro C.
Aguilar and newsman Jacobo Amatong who gave an antemortem statement "that it was the military
that shot them" in Dipolog City on September 23, 1984 and the killing of Atty. Romraflo R. Taojo in
his own home in Tagum, Davao del Norte on April 2, 1985, who had been allegedly warned by the
military about the nature of the cases he was handling. The petition further cited the case of
petitioner MABINI trustee and co-founder Atty. Jojo Binay who was successful in having several
criminal cases against his client Dr. Nemesio Prudente dropped, but in April this year "found himself
a co-respondent with his client Dr. Prudente in a new subversion charge filed by the military with the
provincial fiscal of Rizal. " Also cited were the cases of Attys. Romeo Astudillo and Alberto Benesa
both former IBP Abra chapter presidents and Abra FLAG chairman and member, respectively, who in
the same month of April this year "were arrested by the military, charged with subversion, and

presently confined at the Constabulary stockade in Bangued, Abra, Since 1979, they were the only
human rights lawyers in Bangued, Abra. Since their arrest, there are no lawyers anymore handling
such cases." 7 Between the two of them, they reportedly handled a total of about 120 subversion cases
and "not one of their clients was even convicted due to 'lack of evidence.' " 8
The petition quoted respondent general's press statement issued on May 10th that ... the arrest of
Ilagan, 'who had lately been engaged in human rights lawyering for suspected persons detained for
subversion, rebellion and other charges' was 'long overdue' (Business Day, May 13, 1985, p.
11)" 9 and the exertion of pressure upon other Davao human rights lawyers in this wise:
The tension mounted when another lawyer Silvestre Bello III, BAYAN national
organizing committee member, got word from Jesus Dureza President of the
Integrated Bar of the Philippines, Davao del Sur chapter, that Estares was 'inviting'
Bello to Camp Catitipan. Bello, in an earlier interview, said they were assured by
Estares that in case they would be slapped with a PDA, they would not be picked up
like what happened to Ilagan but instead just 'be invited' to Camp Catitipan as in
Arellano case.
Estares, on the other hard, told Business Day they were just 'inviting' Bello to 'visit his
friends,' PC-INP regional commander, Dionisio Tan- Gatue also told newsmen in a
phone interview that he was just inviting Bello to visit him. Tan-Gatue however,
declined to comment on whether or not there will be more arrests in the next few
days. 'Just wait and see,' he said. (Business Day, May 13, 1985)
"The aforesaid report has been confirmed by the IBP Davao Chapter."

10

The petition, noting that "(T)hese trends are ominous for members of the Bar especially those who
are engaged in pro bono publico work who have incurred the ire of the military," 11 invoked the writ of
habeas corpus as the great writ of liberty on behalf of the three lawyers. IBP President Emeritus J.B.L.
Reyes made this eloquent plea against thisDamocles' sword wielded by the military in that its value is not
that it falls but that it hangs, and it hangs over every lawyer at the present time, engaged or not in the
defense of anybody":
That is why, if Your Honors please, we have here all the representatives of the Bar
organizations because they are all threatened under this method that is being
adopted by the military, that anybody who thus ran against their Ideas of what a
citizen should do, becomes ipso facto suspect and ipso facto rebel or a subversive.
And that is the reason why we've come to this Court, because with all this publicity.
Even if only 3 or 5 lawyers are arrested all the others will be afraid. If Your Honors
will recall that we are arguing the constitutionality of this PDA, we happened to quote
from the United States Supreme Court, that the value of the Sword of Damocles is
not that it falls but that it hangs, and it hangs over every lawyer at the present time,
engaged or not in the defense of anybody How do we know how many more lawyers
will be in the future arrested. 12
Or as then Associate (now Chief) Justice Makasiar in 1980 stressed before the Philconsa against the
proposal then to return the administrative supervision of inferior courts from the Supreme Court to
the Ministry of Justice: "The warning has been issued that a tyrant, who wants complete and
absolute control over the people, will first seduce and eliminate the lawyers and thereafter destroy
the courts. This tragedy must be averted." 12-a

Respondents' return made the startling charge that the three lawyers (all practitioners of long good
standing since 1971, 1977 and 1976, family men and without any derogatory record) "have been
arrested and detained because of evidence that they are members of the Communist Party of the
Philippines or its partner, the National Democratic Front, and have been active in organizing mass
actions intended to further the communist cause," and "(I)n truth, the PDA against the three lawyers
was issued as early as January 25, 1985, shortly after the series of welgas conducted late in 1984.
But, with the President's knowledge and concurrence, the military in Region 11 tried to withhold its
implementation precisely in the hope that the need for such action would pass, forestalling a
possible misinterpretation of the government's motive in making the arrest. The situation in Southern
Mindanao has, however, deteriorated compelling the government to act swiftly, arrest the communist
leaders behind the welga and stem the tide of mass disturbance sweeping the area." 13 Ironically,
while the state attorneys specifically pleaded that there is evidence that the three lawyers
are communists, yet they invoke the Garcia Padilla rulingthat "the Court may not inquire into it" 14 and that
"because of the suspension of the writ of habeas corpus, the Courts have no authority to look into this
evidence" 15 which led then Chief Justice Fernando to ask in exasperation:
CHIEF JUSTICE
Q But what is the connection between them? You can always, your
pleading is quite extensive, but until now according to you there is
evidence but you are not at liberty to reveal that evidence. What good
will it do to the Court then? What is their [the lawyers]connection with
the acts that are rebellious in character or subversive? That perhaps
will give the possibility [for] their continued detention? 16
Still, at the hearing of May 23rd, it was clearly stressed that notwithstanding that the PDA had been
secured since January 25, 1985 by respondent general, supposedly "on the basis of evidence and
verified reports," when questioned why no information had been filed against them "considering
that as early as January 25, 1985 there had been [allegedly] evidence that they had
committed subversion, " respondents assured the Court that the detained lawyers would be "entitled
to a hearing ... when the time comes that we file charges [which] will be decided by the prosecuting
officer of the government" (upon interpellation of Mr. Justice Relova and reply of Assistant Solicitor
General Eduardo G. Montenegro). 17 Respondents' counsel had at the hearing claimed that "these three
lawyers companeros of mine are active members of the Communist Party of the Philippines, [as]
witnesses we have captured NPA's." He said that these statements given by former NPA's were shown
him by military officers, but when questioned as to whether these states were "newly prepared also or
long existing, " he was specifically warned againstswallowing hook, line and sinker" the assertions of
such professional witnesses and of the imperative necessity of conducting an independent investigation,
thus:
JUSTICE CUEVAS:
Q What (did) your evidence consist of ?
ASST. SOLGEN:
A Statements given by former members of the New People Army in
Davao Your Honor, there are NPA's who surrendered and then
subsequently . . .
JUSTICE CUEVAS:

Q And these evidences were in your possession long prior to the


arrest and detention of these 3 lawyers?
ASST. SOLGEN:
A In our possession, Your Honor no, sir, because I saw them only
when we were preparing the return, Your Honor.
JUSTICE CUEVAS:
Q From whom did they come from, if you know.
ASST. SOLGEN:
A I was shown that by these Military Officers.
JUSTICE CUEVAS:
Q Newly prepared also or long existing?
ASST. SOLGEN:
A Your Honor please, I . . . .
JUSTICE CUEVAS:
Q You answer positively because I'll ask them, when they were
turned over to you were they newly prepared also? When were they
prepared?
ASST. SOLGEN:
A I do not remember the date now but I was reading it. Anyway, Your
Honor, the reason why we did not attach this to our return is this, that
most of those . . . .
JUSTICE CUEVAS:
Q That is very very material, simply because there is rebellion in the
count I do not think it warrants the picking up of anybody?
ASST. SOLGEN:
A Yes, Your honor.
JUSTICE CUEVAS:
Q That is following up under your theory?
ASST. SOLGEN.

A Yes, Your Honor, because the surrendered NPA's who gave those
statements, at least 3 of them, have not yet been surfaced by the
Government. Their Identity are still not to be divulged because the
Military is not through yet in its investigation with respect to these
people. So they are not to be mentioned.
JUSTICE CUEVAS:
Q My theory because I had been a Fiscal also, Mr. Assistant Solicitor
General as you know, there are people who are, who had the
appetite of giving any kind of affidavit. In fact, I had prosecuted an
accused who is even willing to testify that he witnessed the shooting
of Rizal in Luneta?
ASST. SOLGEN:
A That may be true, Your Honor.
JUSTICE CUEVAS:
Q You should not swallow 'hook, line, and sinker,' that is our
apprehension in particular?
ASST. SOLGEN:
A Yes, Your Honor. May I continue, Your Honor. Now, Atty. Ilagan, in
particular
JUSTICE TEEHANKEE:
Q This is an appropriate time I believe, what Justice Cuevas has
mentioned was that, in other words, you brought these affidavits?
ASST. SOLGEN:
A Yes, Your Honor.
JUSTICE TEEHANKEE:
Q But you have to check them out?
ASST. SOLGEN:
A Yes, Your Honor.
JUSTICE TEEHANKEE:
Q Check the background of these people and check out their
assertions as against an independent investigation. As if they say on
such and such a date Attorney Ilagan was in the mountains; you have

to check that out, you can't just swallow on its own. There areso
many of these professional witnesses?
ASST. SOLGEN:
A That may be true, Your Honor, there are professional witnesses,
Your Honor.
JUSTICE TEEHANKEE:
Q There are, you know that and we all know that.
ASST. SOLGEN:
A Yes there are. Now, may I continue, Your Honor.
CHIEF JUSTICE FERNANDO:
A Yes, but please you must go directly. 18
CHIEF JUSTICE FERNANDO:
Q We've heard that before but again [what is] the connection of these
people?
SOLICITOR ABAD:
A Well, the position of the Military is that ....
CHIEF JUSTICE FERNANDO:
Q They are human rights lawyers, they have been defending several
persons accused of crimes of . . . . and they had been doing as
members of the Bar. Now they are picked up and apprehended, at
least justify that.
SOLICITOR ABAD:
A Well, I appreciate that, Your Honor please, anyone belonging to the
middle forces who campaign in the open to organize the populace for
support to the revolution must really have some front, because when
it comes to a revolution .
CHIEF JUSTICE FERNANDO:
Q But again you say they are the front of these people, where is the
evidence to substantiate this conclusion? They are all naked
assertions thus far?
JUSTICE TEEHANKEE:

Q Mr. Counsel, your theory seems that anybody who joins in a


protest or a demonstration against grievances and abuses as
perceived by them is a . . . . joining this middle force is
a communist already?
SOLICITOR ABAD:
A That is certainly not our theory, Your Honor, that is not the theory of
the Government.19
After the hearing, and as already indicated, the Court ordered the immediate release of the three
lawyers-detainees on recognizance of their principal counsel per its Resolution of May 23rd, which it
expressly ordered to be "immediately executory. " But the camp commander at Camp Bagong Diwa
did not honor the Court's release order, saying that "it had to be verified from higher authorities." So,
petitioners filed their manifestation and motionon May 24th, reporting the non-release and praying
that the immediate release of the three lawyers on recognizance of their principal counsel be
effected in the premises of the Supreme Court, as had been done in previous past cases.
On the next day thereafter, May 25th, respondents filed an urgent motion for
reconsideration, invoking anew the Garcia-Padilla ruling 20 that the courts could not entertain petitions
for habeas corpus of persons detained under Presidential Commitment Orders (now supplanted by
PDA's),
Without awaiting this Court's action on their aforesaid motion for reconsideration, respondents,
particularly respondent general, somehow got th City Fiscal of Davao City to precipitately file on May
27, 1985, without any preliminary investigation, an information against the three petitioners' lawyers
for the capital crime of rebellion with the Regional Trial Court of Davao, Branch X. 21 The said trial
court grossly disregarding the deference that all inferior courts should accord this Court as the highest
court of the land (since the military's equally gross disregard of this Court'sMay 23rd order for the release
of petitioners-lawyers was a matter of public notice, having been prominently reported in all national and
local newspapers) just as precipitately issued a warrant of arrest with no bail against said petitionerslawyers. Respondents then filed on May 28th their Urgent Manifestation/Motion, annexing copies of the
information and warrant of arrest, praying for the dismissal of the habeas corpus petition at bar on the
ground that it has become moot and academic.
In their required comment on the state's action, petitioners' lawyers stated that the fiscal misinvoked
section 7, Rule 112 which allows the filing of an information without preliminary investigation "when
the person is lawfully arrested without a warrant," i.e. in flagrante delicto (which is not the case here).
They asserted petitioners' constitutional right to due process and the right to a preliminary
investigation as granted by statute and expressly assured to them in open court at the May 23rd
hearing. They denounced the "cabal among military authorities and the prosecution arm of the
government" with the contumacious cooperation of the trial court to deprive them of due process and
to circumvent this Court's release order, as follows:
3.1. Preliminary investigation is instituted to secure the innocent against hasty,
malicious and oppressive prosecution and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of public trial, and also to
protect the state from useless and expensive trials. The right to preliminary
investigation is a statutory grant and to withhold it would be to transgress
constitutional due process. Salonga v. Hon. Ernani Cruz Pao, G.R. No. 59254,
February 18, 1985, citing Trocio v. Manta, 118 SCRA 241; Hashim v. Boncam, 71
Phil. 216; People v. Oandasa, 25 SCRA 277.

3.2. Petitioners having been deprived of their constitutional right to due process by
the Fiscal of Davao, therefore, the information for rebellion filed against them is void.
3.3. The information filed by the Fiscal of Davao being void, the Regional Trial Court
of Davao has acquired no jurisdiction over the case of rebellion filed against
petitioner. Therefore, all orders, warrants, processes, and issuances of the Court
relative to the case, including the warrant for their arrest, are issued without authority
and therefore null and void.
3.4. What becomes evident in the face of these developments is a cabal among
military authorities and the prosecution arm of the government to bend and short
circuit rules in order to deprive petitioners of their right to due process guaranteed by
the Constitution, and to circumvent the order of this Court for their release. It is
deplorable that the Regional Trial Court of Davao has lent itself to this conspiracy to
undermine the Constitution and the authority of this Court.
3.5. All proceedings and orders in connection with the case of rebellion against
petitioners being of no legal effect these cannot have the consequence of rendering
the case moot and academic. 22
II. The merits of the petition.I have gone to great lengths to restate hereinabove the antecedent
facts as established by the pleadings and annexes of record and the hearing held by the Court on
May 23rd. I submit that on the basis of these established facts, the "sacred constitutional rights [and]
also the right to 'due process' which is fundamental fairness " as imperatively stressed by the
majority decision in the recent case of Galman vs. Hon. P.J. Pamaran 23 have been grossly denied the
three lawyers detainees. This Court's "immediately executory" release orderof May 23rd (issued over four
months ago) should be forthwith honored and complied with. Far from having rendered the petition as
moot and academic, all the railroaded proceedings and orders charging the three petitioners-lawyers
with instant rebellion in gross disregard of the pendency of this case and of the assurance given in open
court that the petitioners-lawyers would be entitled to a hearing and a preliminary investigation in
obedience to the constitutional mandate that "no person shall be deprived of life, liberty or property
without due process of law" and "no person shall be held to answer for a criminal offense without due
process of law, " 24 should be declared null and void. They were patently void, having been issued without
jurisdiction under the well-settled rule that "a violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment [or order] is null and void and confers no rights. " 25 At the
very least, all proceedings in the instant rebellion case before the Davao trial court should be suspended
and enjoined until the petitioners-lawyers are granted their right to a preliminary investigation and the
opportunity to confront their accusers and disprove the charges; meanwhile, it is but part of due process
that they be set free as ordered by the Court and be enabled to prepare their defense. The petition under
the great writ of habeas corpus to set them at liberty should accordingly be granted for the following
fundamental reasons and considerations:
1. Basic Right to Due Process.The Bill of Rights expressly mandates that ... 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 ." 26This plainly means that generally no person may
be held to answer for a criminal offense without a preliminary investigation. The right to a preliminary
investigation is statutorily granted for serious offenses and to deny it violates the right to due process
guaranteed by the Constitution. 27 Preliminary investigation has been instituted precisely to secure the
innocent against hasty, malicious and oppressive prosecution. Moreover, the instant rebellion case filed
against the petitioners manifestly falls under three recognized exceptions to the general rule that criminal
prosecution may not be blocked by court prohibition or injunction, namely, "l. for the orderly administration

of justice; 2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner; ...;
and 4. to afford adequate protection to constitutional rights. .... 28

2. Petitioners-lawyers denied due process.The blitzkrieg filing of precipitate, vindictive and


oppressive charges against petitioners-lawyers for the capital crime of rebellion without hearing and
preliminary investigation deprived them their right to due process and the rudimentary requirements
of fair play. As the majority, quoting former Chief Justice Enrique M. Fernando, emphasized in the
recent case of Galman vs. Pamaran, supra, 29 "due process ... is responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun
the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action
marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the
embodiment of the sporting Idea of fair play ... It exacts fealty 'to those strivings for justice' and judges the
act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that
reflect (democratic) traditions of legal and political thought.' ... It is not a narrow or 'technical conception
with fixed content unrelated to time, place and circumstances,' ... decisions based on such a clause
requiring a 'close and perceptive inquiry into fundamental principles of our society.' ... Questions of due
process are not to be treated narrowly or pedantically in slavery to form or phrases. .... " 29-a
3. Right to preliminary investigation.-The May 23rd hearing brought out the importance of preliminary
investigation to prevent hasty and baseless prosecution, since respondents could not cite concrete
evidence of specific criminal acts committed by respondents. Respondent general secured the PDA
on January 25, 1985 on the basis of affidavits of surrendered NPA's supposedly incriminating the
petitioners, which was issued "on the basis of evidence and verified reports that the (petitionerslawyers) have committed subversion and/or acts inimical to public safety, national security and public
order." 30 Respondents would cavalierly tag the petitioners-lawyers as having gone "beyond purview of
lawyering, but even to the extent of attending CPP and NPA rites, and using their profession as lawyers
as cover-up for their activities in furtherance of CPP goals and objectives, "as per the affidavit executed
under date of January 22, 1985 by the Davao intelligence chief Lt. Col. Nelson J. Estares. 31 As pointed
out by petitioners in their verified traverse, this affidavit has no probative value. It is not based on the
affiant's direct knowledge but offers hearsay, on his alleged interviews with surrendered NPA's and "to the
best of [this] knowledge and ability." It would have been a simple matter for the alleged witnesses to have
executed their own affidavits. In turn, petitioners have categorically denied that they are members of the
CCP or NDF. Attys. Ilagan and Arellano said in open court that they are chairman and secretary-general,
respectively, of BAYAN-Mindanao, affiliated with the national organization of BAYAN (Bagong Alyansang
Makabayan) with former Senators Lorenzo M. Taada and Ambrosio Padilla as chairman and vicechairman, respectively, and among whose national leaders is former Manila Times publisher Joaquin
"Chino" P. Roces. But strangely enough, while the aforesaid documents were executed in January, 1985
to secure the PDA for subversion against petitioners, the instant charge filed without hearing by the fiscal
apparently based on the same affidavits is now for rebellion which would involve the petitioners rising in
arms. The whole point is that petitioners' lawyers have squarely presented to this case the undeniable
and undisputed facts that they have been denied their right to preliminary investigation and to show the
utter falsity of the charge of instant rebellion against them. Such right was assured them in open court by
the State's attorneys. It is this Court which must grant petitioners this right, and uphold their right to due
process. The obiter dictum cited by the majority decision from the case of Medina vs. Orozco 32 that "the
proper forum before which absence of preliminary investigation should be ventilated is the Court of First
Instance, not this Court" has no application. There, this Court found that not only was a preliminary
investigation made, but also a subsequent reinvestigation upon his motion, after which the case against
the accused proceeded to trial.
4. Professional witnesses of military not checked out.-As shown above, supra, 33 as admitted by the
State attorneys, there are so many professional witnesses presented by the military in such cases, whose
statements should not be "swallowed hook, line and sinker." The ex-parte affidavits of the alleged
surrendered NPAs could be checked out as against their background and an independent investigation
only in a preliminary investigation. Such affidavits and statements have been found to be completely

worthless in other cases. In the habeas corpus case of Aristedes Sarmiento, he and his wife were
charged with subversion on March 31, 1983, as ranking leaders of the NPA, after they had been "invited"
and detained at the military camp in Gumaca, Quezon on October 9, 1982. After the prosecution rested its
case, the trial court granted the defense' motion for dismissal of the charges for utter "worthlessness of
evidence." The trial court ruled that "(I)ndeed, there is nothing that the Armed Forces of the Philippines or
any of the law enforcement agencies of the Government could offer to prove any connection of the
Sarmiento couple with any subversive organization, even with the New People's Army, if ever it is to be
considered such, and much more as leaders thereof." This led to an apparently unheeded call from the
now Chief Justice that "The military establishment should inquire into whether the President was deceived
into issuing the PCO and who initiated the arrest of the couple without supporting evidence." In
petitioners' verified traverse, they point out that respondents' "star witness" against petitioners is one
Calixto Alegado III, an alleged former NPA who is now a member of the Philippine Constabulary. They
state that Calixto Alegado Ill is precisely one of those professional witnesses unworthy of credence who
has testified in a number of national security cases and who should be checked out in an independent
investigation as assured by the State attorneys at the May 23rd hearing, thus: "In Criminal Case No. 9198
before the Regional Trial Court of Davao entitled People of the Philippines v. Carlito Gaspar, Alegado
testified that he witnessed the accused therein giving lectures for the CPP/NPA at dates when the
accused Carlito Gaspar was either in Manila or out of the country, more specifically in Australia and Latin
America. On the basis of this affiant's testimony together with other supposed former CPP/NPA members,
the Regional Trial Court found Alegado not worthy of belief and acquitted Gaspar. It is significant to point
out here that the counsel of Carlito Gaspar in that case is petitioner Atty. Laurente Ilagan." 34

5. Protective mantle of this Court.The unlawful arrest and detention of the petitioners-lawyers has
completely uprooted their lives. This Court must extend them its protective mantle as officers of the
courts, because of the strong indications, supra, 35 of "ominous trends" for lawyers "who are engaged in
pro bono publico work who have incurred the ire of the military," such as in the case of Abra, where there
are no more lawyers handling subversion cases because the only two human rights lawyers handling
such cases have been charged with subversion and locked up in the stockade. As formulated by Justice
J.B.L. Reyes in response to a question of Mr. Justice Gutierrez why the lawyers were picked out for
criminal charges (when there were non-lawyers who also led the welga), "(Y)es, precisely they pick the
lawyers because I suppose they figure out that in fact the lawyers are actually social leaders in their
respective communities. That is why, if Your Honors please, we are pleading this Court for the prosecution
because after all the lawyers are officers of the Court and if the Court will not protect them, who will?
Certainly not the military. We certainly hope that a lawyer will not, in the long run, will not be asking the
NPA for protection, because nobody else wants to protect them." 36
6. People's right of assembly.-The people's right to freedom of expression and to peaceably
assemble and petition the government for redress of grievances are fundamental constitutional
rights. Mass demonstrations popularly termed as welgang bayan constitute a legitimate exercise of
these basic constitutional rights. Indeed, as the Court stressed in Jose B. L. Reyes vs. Ramon
Bagatsing 37 "The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest." The Court
therein reminded the police (and the military for that matter) of their duty to extend protection to the
demonstrators/participants "staying at a discreet distance, but ever ready and alert to perform their duty."
It further admonished that should any disorderly conduct or incidents occur, whether provoked or
otherwise, such incidents of disorderly conduct by individual members of a crowd should not be seized
"as an excuse to characterize the assembly as seditious and tumultuous rising against the authorities"
and render illusory the right of peaceable assembly. 38
. The military must overcome their allergy if not aversion to such welgas. Acting AFP Chief of Staff
Lt. Gen. Fidel V. Ramos recently, correctly urged those involved in law enforcement and criminal
justice system to "keep themselves up-to-date on the [changing] law and jurisprudence and the
intricacies of implementation" adding that "as law enforcers they must be convinced by heart that
they enforce the law and never violate it. 39

Petitioners candidly state in their verified traverse that "(T)he possibility that the Communist Party of
the Philippines and the National Democratic Front may have participated in or used the events for
their own purposes may be assumed for purposes of argument. It is not fair inference from this
assumption that all those who participated in any significant degree in the strikes and the activities
held in connection therewith are members of the Communist Party of the Philippines or the National
Democratic Front," 40 but they rightfully submit that "(T)o conclude that persons who participate in such
mass activities are communists or subversives and to restrain them in their freedom as a consequence is
the worst form of witch-hunting violative of all principles of fair play and due process." 41
In the Philippine Blooming Mills case 42 this Court set aside the industrial court's decision dismissing
from employment the workers' labor union's eight officers for having led and carried out a "temporary
stoppage of work" to hold a mass demonstration at Malacaang of all the workers on March 4, 1969 in
protest against alleged abuses of the Pasig police. It held that such dismissal was violative of the
workers' legitimate exercise of their constitutional rights of free expression, peaceable assembly and
petition for redress of grievance, thus:
... Recognition and protection of such freedoms are imperative on all public officers
including the courts (as well as private citizens and corporations ... when even a law
enacted by Congress must yield to the untrammelled enjoyment of these human
rights. There is no time limit to the exercise of these freedoms. The right to enjoy
them is not exhausted by the delivery of one speech, the printing of one article or the
staging of one demonstration. It is a continuing immunity, to be invoked and
exercised when exigent and expedient whenever there are errors to be rectified,
abuses to be denounced, inhumanities to be condemned. Otherwise, these
guarantees in the Bill of Rights would be vitiated by a rule on procedure prescribing
the period for appeal. The battle then would be reduced to a race for time.
7. Preservation of liberties and motives.Good faith must be presumed as well on the part of
respondents as of petitioners-lawyers. The good motive but misplaced overzealousness of the
military, particularly as headed by respondent general in the Davao area, may be noted, obsessed
as they are with keeping peace and order. But it seems appropriate and timely to cite the pointed
reminder of the late Mr. Justice William Douglas as reproduced in the PBM case, as follows:
The challenge to our liberties comes frequently not from those who consciously seek
to destroy our system of government, but from men of goodwill-good men who allow
their proper concerns to blind them to the fact that what they propose to accomplish
involves an impairment of liberty.
... The Motives of these men are often commendable. What we must remember,
however, is thatpreservation of liberties does not depend on motives. A suppression
of liberty has the same effect whether the suppressor be a reformer or an outlaw.
The only protection against misguided zeal is constant alertness of the infractions of
the guarantees of liberty contained in our Constitution. Each surrender of liberty to
the demands of the moment makes easier another larger surrender. The battle over
the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the liberties of none are safe unless the liberties of all are protected.

43

The record of the May 23rd hearing highlights the imperative importance of the injunction that no
matter how worthy the motive may be, the authorities, civilian or military, should not suppress the

people's liberties, and push the aggrieved citizen in despair towards the NPA or the communists; and
respect their constitutional rights as otherwise there would be no difference as against the outlaws or
rebels. For as Brandeis called it, "Crime is contagious. If the government becomes the lawbreaker it
breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy."
The record again underscores the utter lack of evidence to support the unlawful arrest and detention
of the three petitioners-lawyers, thus:
JUSTICE TEEHANKEE:
Q All right, I will ask one more question on that. Since it was
organized, this Mindanao Chapter, in April you already had a PDA in
January. Did you not or the Military exercise strict surveillance daily
over the activities of these people? So that you can catch them with
the goods?
SOLICITOR ABAD
A Well, it is not that simple, if Your Honor please, because rebellion is
not a crime committed (with) not exactly with bouncing checks or
similar crimes.
JUSTICE TEEHANKEE
Q True, that's very true, but ...?
SOLICITOR ABAD
A So precisely a good rebel is one who is not caught, he was able to
lose himself in the populace. How can we expect let's say a member
of a front organization of the NPA will carry an Id, if Your Honor
please.
JUSTICE TEEHANKEE
Q But you have to look into the record of the individual.
SOLICITOR ABAD
A I think they have, Your Honor.
JUSTICE TEEHANKEE
Q You have to look into the record of these individuals here,
lawyers, members of the Bar of good standing, without any
derogatory record, is it within the ordinary course of human conduct
that they would prostitute their profession, pervert it and serve as
fronts?
SOLICITOR ABAD

A Horacio Morales, Your Honor, was a Government Executive, in the


same manner as Atty. Ocampo was a good journalist, but they
admitted they have turned to the communist side. We cannot say that
a background of a man is sufficient guarantee that he is not going to
join the rebellion.
JUSTICE TEEHANKEE
Q As far as Morales is concerned he gave up on reforms, he was
desperate; that is why he says there is no other way...
SOLICITOR ABAD
A Well, that's what I mean, if Your Honor please, an individual
supplace (sic) society, the old society ...
JUSTICE TEEHANKEE
Q Society (should) not push the aggrieved citizen towards the NPA or
the communist party as a last resort. And therefore, we must observe
their Constitutional rights. Otherwise, there is no difference?
SOLICITOR ABAD
A There were 3 million people who were unable to use the streets of
Davao, if Your Honor please, its their constitutional rights to travel to
bring their sick to the hospitals and were violated by these ...
JUSTICE MAKASIAR
Q Compaero, your position is that history is replete with examples of
traitors and quislings from high society or high Government circles.
But the question is, while you affirm the fact that the communist is not
necessarily open or overt, he is usually engaged in covert
activities. Now what are the examples of these covert activities of
these people? What is your evidence?
SOLICITOR ABAD
A Well, I read from a very authoritative document of the Communist
Party of the Philippines
JUSTICE TEEHANKEE
Q That's begging the question?
JUSTICE MAKASIAR
Q And they deny? The communist party they accept membership...
the Alyansa?

SOLICITOR ABAD
A Financial support, telling over the populace into supporting the
rebellion; driving them away from the Government: giving financial
support; harboring them in their homes. While these are not armed
assistance given to the rebel, if Your Honor please, but its the duty
also of the government to ...
JUSTICE MAKASIAR
Q ... the various dates of harboring them in their homes; the financial
contributions made by them on such and such a date, how much?
Those are the particulars to support the conclusion that they had
contributed, they were harboring them?
SOLICITOR ABAD
A Well, as I said we have the evidence, the only problem is we
are not prepared to produce now the evidence. 43-a
Indeed, in their Urgent Motion for Reconsideration of the Court's May 23rd release
order, respondents, "having obtained clearance for the declassification of the needed materials"
submitted their "evidence, " consisting of hearsay military reports (rather than the direct affidavits of
credible witnesses) and the affidavit of a discredited and perjured professional witness, an alleged
NPA, now a member of the Philippine Constabulary, supra. 43-b No concrete evidence whatever has
been submitted therein against petitioners-lawyers, other than to recklessly red brush their legitimate
organization (BAYAN-Mindanao) as communist-led or infiltrated front organizations and to characterize
the series of welgas or strikes in Mindanao as implementation of the NDF program of activities to
organize and mobilize the "middle forces" of society, supra. 43-c
8. Basic concepts and principles of freedom-The PBM case, citing numerous precedents, restated
basic concepts and principles which, to my mind, underlie and are determinative of the issues at bar,
as follows:
(1) In a democracy, the preservation and enhancement of the dignity and worth of
the human personality is the central core as well as the cardinal article of faith of our
civilization. The inviolable character of man as an individual must be 'protected to the
largest possible extent in his thoughts and in his beliefs as the citadel of his person. 44
(2) The Bill of Rights is designed to preserve the Ideals of liberty, equality and security
'against the assaults of opportunism, the expediency of the passing hour, the erosion of
small encroachments, and the scorn and derision of those who have no patience with
general principles. 45
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is
to withdraw 'certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials, and to establish them as legal principles
to be applied by the courts. One's rights to life, liberty and property, to free speech, or
free press, freedom of worship and assembly, and other fundamental rights may not be
submitted to a vote; they depend on the outcome of no elections. 46 Laski proclaimed that
'the happiness of the individual not the well-being of the State, was the criterion on by

which its behaviour was to be judged. His interests, not its power, set the limits to the
authority it was entitled to exercise. 47
(3) The freedoms of expression and of assembly as well as the right to petition are
included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the Ideas that we abhor or hate more than the
Ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to
talk, but also to benefit the majority who refuse to listen. 48 And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are
not safe unless the liberties of all are protected. 49
(4) The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to his full
and complete fulfillment. Thru these freedoms the citizens can participate not merely in
the periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The
citizen is accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights
over property rights is recognized. 50 Because these freedoms are 'delicate and
vulnerable, as well as supremely precious in our society' and the 'threat of sanctions may
deter their exercise almost as potently as the actual application of sanctions,' they 'need
breathing space to survive,' permitting government regulation only 'with narrow
specificity. 51
Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill of
Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, of the influential and
powerful and of oligarchs political economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy
a preferred position as they are essential to the preservation and vitality of our civil
and political institutions; 52and such priority 'gives these liberties a sanctity and a
sanction not permitting dubious intrusions. 53
xxx xxx xxx

In seeking sanctuary behind their freedom of expression as well as their right of


assembly and of petition against alleged persecution of local officialdom, the
employees and laborers of herein private respondent firm were fighting for their very
survival, utilizing only the weapons afforded them, by the Constitution-the
untrammelled enjoyment of their basic human rights. ... Material loss can be repaired
or adequately compensated. The debasement of the human being-broken in morale
and brutalized in spirit-can never be fully evaluated in monetary terms. The wounds
fester and the scars remain to humiliate him to his dying day, even as he cries in
anguish for retribution, denial of which is like rubbing salt on bruised tissues. 54
9. The express teaching of the Salonga case.The express teaching on freedom of expression,
based on numerous precedents, of this Court's unanimous decision (11 members with 3 abstentions)
in the case of Salonga vs. Pao 55 should dispel the apparent misconception on the part of the military,

us well as certain government prosecutors, that militant protests and demonstrations are seditious and
subversive of the government. This Court set forth therein guiding and controlling constitutional principles
and precepts governing constitutionally protected spheres and areas reserved by the Bill of Rights for the
individual "where even the awesome powers of government may not enter at will," as follows: "... if there
is any principle of the Constitution that more imperatively calls for attachment than any other, it is the
principle of free thought-not free thought for those who agree with us but freedom for the thought that we
hate;" that "freedom of expression is a 'preferred' right and therefore stands on a higher level than
substantive economic or other liberties;" that "this must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly
every other form of freedom. Protection is especially mandated for political discussions. This Court is
particularly concerned when allegations are made that restraints have been imposed upon mere criticisms
of government and public officials. Political discussion is essential to the ascertainment of political truth. It
cannot be the basis of criminal indictments;" that there must be tolerance of political hyperbole since
"debate on public issues should be uninhibited, robust and wide open and it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public officials;" that "the
constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action;" that "political discussion
even among those opposed to the present administration is within the protective clause of freedom of
speech and expression. The same cannot be construed as subversive activities per se or as evidence of
membership in a subversive organization" in the absence of proof that "such discussion was in
furtherance of any plan to overthrow the government through illegal means, " and that "the judge or fiscal,
therefore, should not go on with the prosecution in the hope that some credible evidence might later turn
up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold.
It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional
rights. So it has been before. It should continue to be so."

10. Peaceful and violent welgas.The military and the police but adhere to the aforecited basic
democratic concepts and principles and recognize the people's constitutional right of assembly,
protest and petition for redress of grievances and accordingly exercise forbearance and
understanding, then the welgas will not and cannot erupt in violence. As emphasized in the PBM
case, there is no time limit in the exercise of these basic freedoms of free expression, peaceable
assembly and petition for redress of grievances. The right to enjoy them is not exhausted "by . . . .
the staging of one demonstration." It is a continuing immunity, to be exercised whenever there are
errors to be rectified, abuses to be denounced, inhumanities to be condemned. This is borne out by
the numerous demonstrations, rallies and welgas in Manila, Bataan and many other provinces.
The Welgang bayan in Bataan against, the nuclear plant which paralyzed the whole of the province
for three days last June were carried out peacefully without any violence, despite certain critical
moments when the provincial commander ordered his forces to advance thru a blockade manned by
some 4,000 people. He later withdrew his orders after a dialogue with the protestors. The behaviour
of both the military and the demonstrators merited commendations from all sectors. The President
himself was quoted as saying that "the official policy of maximum tolerance in dealing with mass
demonstrations paid off during the welgang Bayan in Bataan." 56
In this case, the May 2-3, 1985 welgang bayan which incurred the ire and displeasure of the military
was carried out without any ugly incidents. But the aggressiveness and intolerance of the military
and CHDF forces inEscalante, Negros Occidental turned the welgang bayan there into a bloodbath
last September 20th. Some thirty demonstrators, including women, were reported killed when
government troops who were supposed to keep order during the rally opened fire at the massed
crowd when some troublemakers reportedly tried to snatch their firearms. As observed in one
editorial, "once government soldiers or police open fire on a rally crowd, the result would be a virtual
massacre for the enforcers are better armed." 57 "Indeed, the use of combat-ready and trigger-happy
troops trained only to shoot-to-kill without any training in crowd control of demonstrators or rallyists should
be restudied. As stated in my separate opinion in Hildawa vs. Minister of Defense. 58 "The Supreme Court

stands as the guarantor of the constitutional and human rights of all persons within its jurisdiction and
cannot abdicate its basic role under the Constitution that these rights be respected and enforced. The
spirit and letter of the Constitution negates as contrary to the basic precepts of human rights and freedom
that a person's life be snuffed on out without due process in a split second even if he is caught in
flagrante delicto-unless it was called for as an act of self-defense by the law agents using reasonable
means to prevent or repel an unlawful aggression on the part of the deceased."

11. The Stale PDA.-Iwill not deal here with the serious question raised by petitioners as to the
validity of the PDA issued by the President under date of January 25, 1985 for the arrest and
detention of the three petitioners-lawyers for having "committed subversion and/or acts inimical to
public safety, national security and public order." This question is better resolved in the separate
case filed by the Integrated Bar of the Philippines for the declaration of unconstitutionality of the
Presidential Decrees authorizing, among others, the issuance by the President of PDA's without the
constitutional requirement that any officer issuing a warrant of arrest must personally examine the
complainant and the witnesses he may present. 59 Suffice it to state that the PDA against petitioners
was already inoperative and stale. It was issued on January 25, 1985. As respondent general himself
states in the return, the military did not see any need to enforce it until after almost four months later on
May 10 to 13 of this year. What is incomprehensible is that no copy certified or plain of the PDA could be
shown to the petitioners upon their arrest, contrary to existing rules and instructions. A xerox copy of the
PDA was first seen by them only with the filing of the respondents' return, in this case on last May 23rd.
Be that as it may, the PDA should be held to be inoperative and ineffectual. The facts and records as
hereinabove stated patently show that the President was misled into precipitately issuing the same:
A. By the President's own statement, he had declared that "he would issue the controversial
Preventive Detention Action (PDA) orders only when national security would require it and that there
is no present need for him to do it." 60 The PDA was issued on January 25, 1985. Under the
implementing rules, it should have been served within forty-eight (48) hours since it covered persons
outside Metro Manila (in Metro Manila, the prescribed period of service is twenty-four [24] hours). The
respondent general's own admission that there was no need to serve it until after almost four months later
shows that there was no necessity for the peremptory issuance of the PDA last January 25th.
B. The issuance of the PDA against the three petitioners lawyers clearly do not fall within the two
exceptions to the general rule provided in section I of P.D. 1877, as amended, that all cases
involving national security offenses "shall be referred to the provincial or city fiscal or to the proper
court for preliminary examination or investigation in accordance with existing laws. " The two
exceptions provided in section 2 of the said P.D. are as follows:
SEC. 2. Only upon proper warrant issued by the Court or other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and his witnesses, shall the person or persons charged with the abovementioned crimes be arrested and detained;Provided, however, that should a military
commander or the head of a law enforcement agency ascertain that the person or
persons to be arrested has/have committed, is/are actually committing, or is/are
about to commit the above-mentioned crimes, or would probably escape or commit
further acts which would endanger public order and safety as well as the stability of
the state before proper warrant could be obtained, the said military commander or
the head of law enforcement agency may apply to the President of the Philippines for
a preventive detention action against the person or persons ascertained to be
participants in the commission of the crimes referred to in Section I hereof, under the
following circumstances:

(a) When resort to judicial processes is not possible or expedient without


endangering public order and safety;
(b) When in the judgement of the President of the Philippines to apply for a judicial
warrant may prejudice peace and order and the safety of the state like when it may
jeopardize the continued covert intelligence counter insurgency operations of the
Government, or endanger the lives of intelligence and undercover agents whose
Identities would be revealed by the evidence against the person or persons covered
by a preventive detention action.
There is no question here of judicial process not being possible or expedient. It is obvious from the
facts of record that it would be absurd to say that the. PDA could fall under the second exception that
to apply for a judicial warrant would prejudice public order and the safety of the state. The mere gap
of almost four months between its issuance on January 25th and its actual service on May 10-12 this
year speaks for itself Furthermore, as succinctly stated by petitioners in their verified traverse, "(A)s
members of this Court pointed out in the hearing of May 23, 1985, the alleged PDA was issued as
early as January 25, 1985. Petitioners were not hiding. They were regularly discharging their
functions as lawyers, including visiting their clients in military camps. There was more than ample
time from the issuance of the alleged PDA up to the time when petitioners were actually arrested and
detained for respondents to place them under close surveillance so that concrete, credible evidence
of their supposed criminal activities and connection might be established 'to catch them with the
goods' so to speak. With the manpower and the resources at the command of respondents, they
have failed to produce that evidence." 61
Indeed, as the ponente, Mme. Justice Herrera, notes in her additional opinion, which failed to gain
the majority's concurrence, "it is my view that individuals against whom PDAs have been issued
should be furnished with the original or the duplicate original or a certified true copy issued by the
official having official custody of the PDA, at the time of apprehension. Pursuant to the Rules and
Regulations Implementing Presidential Decree No. 1877, as amended by Presidential Decree No.
1877-A, the PDAs should also be enforced within 24 hours in the Metro Manila area or within 48
hours outside Metro Manila, upon receipt by the unit concerned. In this case, although the record
does not show such date of receipt, the fact is that the PDA was issued on January 25, 1985 but the
detained attorneys were arrested only on May 10 and 13, 1985, respectively. The four-month gap
can give room for doubt as to its authenticity and whether, in fact, the detained attorneys posed 'any
appreciable danger to national security and public order.' " (Italics supplied)
12. Civilian Supremacy.Art II, section 8 of our Constitution's Declaration of Principles and State
Policies states that "Civilian authority is at all times supreme over the military. " But the military here
dragged its feet and refused to honor this Court's "immediately executory" release order of May
23rd. Without waiting for the resolution of its motion for reconsideration of the Court's release order,
respondent general, who had secured the PDA, then filed the new charge of rebellion against
petitioners and with the deplorable acquiescence of the city fiscal and the trial judge, the former filed
the instant information for the capital crime of rebellion and the latter in tum issued the warrant of
arrest without bail. Respondent general was quoted as saying that "The Supreme Court won in only
one point. And that is, we had to file the the charges much sooner" 62 as if this Court were an adverse
protagonist instead of the final arbiter and the third department of government vested by the Constitution
with the judicial power to determine and adjudicate all justiciable disputes. The same general is quoted as
replying in a letter of April 1, 1985 to Atty. Jesus G. Dureza, IBP Davao chapter (who was asking why
detainees continue to languish in jail despite court decisions either releasing or acquitting them) that "To
begin with, I believe it may be necessary to review our position on these cases (human rights cases). I
express this need because, despite recent court decisions otherwise, I am morally convinced that some
released suspected communist subversives are guilty." 63 This Court's decisions and orders form part of
the law of the land It is a sad day for civilian supremacy when the military do not feel bound by the verdict

of the courts and would place themselves above the courts and require as a condition for executing its
judgment that they be "morally convinced" by the judgment rendered.

To allow such usurpation and denigration of the Court's power of judicial review is to subvert, if not
destroy, the Constitution and the Rule of Law. The survival of a democratic society rests on the Rule
of Law, which depends on the existence of an independent judiciary.
In endorse and reproduce herein the impassioned appeal made by then Justice Makasiar in his
address in 1980 before the Philconsa against the proposed return of the supervision of lower courts
from the Supreme Court to the Ministry of Justice, supra, 64 as follows:
On the rule of law rests the survival of a democratic state. But the rule of law
depends on the existence of an independent judiciary. 'Those who (make the
proposal), I hope, realize that the ill-effects of such a proposal will reach them and
their children. Even at this late stage in our lives when we are about to fade from the
scene, we cannot evade the tragic consequences of such a proposal; but those who
will suffer more would be the succeeding generations-including the children of those
proposing the subtle destruction of the foundations of the judicial system.
In the evening of our lives, let us not emasculate one branch of the government that
is the last sanctuary of our lives and our liberties-the judiciary. As an enduring legacy
to the generations that will come after us, let us all continue to strengthen the
Supreme Court and the entire judicial system.
The contemporary scene demonstrates once again that injustice breeds dissidence
which seethes and finally explodes into a violent and bloody revolution. To all human
beings, the denial of justice is a mortal assault on life itself. Where the human spirit is
brutalized by abuses and inequities, the ultimate hope for liberation lies in the force
of arms unless the courts can effectively enforce the rule of law.
Our historical experience delineated the varied seeds of armed rebellion or
insurrection with which all of you are familiar. The ruthless exploitation of peasants
and laborers, the lust for and arrogance of power, unabated corruption, unequal
application of the law. the prostitution of elections, despoliation of the national
patrimony by a a favored few, as well as the monopoly and manipulation of the
supply and distribution of economic goods essential to man's existence-all constitute
the many facets of injustice that provide the dynamics of open defiance of the status
quo.
The warning has been issued that a tyrant, who wants complete and absolute control
over the people, will first seduce and eliminate the lawyers and thereafter destroy the
courts. This tragedy must be averted.
To support any proposal that erodes the independence of the courts, abets
subversion of the rule of law, undermines the stability of our democratic institutions,
imperils the liberties of the individual, or gives aid and comfort to the enemies of the
people-is akin to committing treason against the nation. " (Italics supplied)
13. The Supreme Court as guardian and final arbiter of the Constitution.The judiciary, as headed
by the Supreme Court has neither the power of the sword nor the purse. Yet as the third great
department of government, it is entrusted by the Constitution with the judicial power-the awesome
power and task of determining disputes between litigants involving life, liberty and fortune and

protecting the citizen against arbitrary or oppressive action of the State. The Supreme Court and all
inferior courts are called upon by the Constitution "to protect the citizen against violation of his
constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary
[assisted by the bar] stands between the citizen and the State as a bulwark against executive
excesses and misuse or abuse of power by the executive as also transgression of its constitutional
limitations by the legislature." 65
The Constitution is basically a charter of limitations of governmental power and enshrines a system
of separation of powers and checks and balances under which no man is the law nor above the law.
It ordains the weakest department, the Supreme Court, as the guardian and final arbiter of the
Constitution. It postulates and requires a free and independent judiciary, sworn to defend and
enforce the Constitution and the law without fear or favor. It mandates that civilian authority is at all
times supreme over the military. Like His Holiness, the Pope, the Supreme Court has no battalions,
tanks or guns to enforce its decisions. Its strength lies in that its verdicts would be obeyed by the
sheer moral force and truth of its judgments for as long as the Court kept the faith and confidence
reposed in it by the people through the Constitution to render justice and sustained their moral
conviction that through the Supreme Court, justice and the voice of reason and truth would prevail in
the end. Under the Rule of Law, "Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines " (Art. 8, Civil Code) and the
Excutive and all its offices and agencies. and particularly the military, are called upon to execute the
laws as so interpreted and adjudged by the courts and enforce obedience thereto. 65-a
As restated by the late Justice Jose P. Laurel in the 1936 landmark case of Angara us. Electoral
Commission, 66"The Constitution sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers would be mere verbiage, the
bill of rights mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should
be in any living Constitution." Justice Laurel pointed out that in contrast to the United States Constitution,
the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the
great burden of "determining the nature, scope and extent of such powers" and stressed that "when the
judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
department ...but only asserts the solemn and sacred obligation entrusted to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and guarantees to them."
Let all bear ever in mind that " (I)n a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. Our government is the potent, omnipresent
teacher. For good or ill, it teaches the whole people by example. Crime is contagious If the
Government becomes the lawbreaker it breeds contempt for the law it invites every man to become
a law unto himself, it invites anarchy. To declare that in the administration of the criminal law the end
justifies the means ... would bring terrible retribution. 67
14. Erroneous premises of the majority decision.
A. The majority decision holds that under section 4, Rule 102 the writ of habeas corpus has served
its purpose because of the judicial warrant of arrest issued by the Regional Trial Court. This is based
on an erroneous premise that the trial court had such jurisdiction to issue the warrant of arrest, and
that the denial of a preliminary investigation of petitioners-lawyers was a mere informality or defect.
As already emphasized hereinabove, the trial court was totally devoid and ousted of jurisdiction to
issue a warrant of arrest because of the gross denial to petitioners-lawyers of their constitutional
right to due process.

B. The majority decision holds that the filing of the information without preliminary investigation falls
within the exceptions of Rule 112, sec. 7 and Rule 113, sec. 5 of the 1985 Rules on Criminal
Procedure. 68 Again, this is erroneous premise. The fiscal misinvoked and misapplied the cited rules. The
petitioners are not persons "lawfully arrested without a warrant. " The fiscal could not rely on the stale and
inoperative PDA of January 25, 1985. Otherwise, the rules would be rendered nugatory, if all that was
needed was to get a PDA and then serve it at one's whim and caprice when the very issuance of the PDA
is premised on its imperative urgency and necessity as declared by the President himself. The majority
decision then relies on Rule 113, sec. 5 which authorizes arrests without warrant by a citizen or by a
police officer who witnessed the arrestee in flagrante delicto, viz, in the act of committing the
offense. Quite obviously, the arrest was not a citizen's arrest nor were they caught in flagrante
delicto violating the law. In fact, this Court in promulgating the 1985 Rules on Criminal Procedure have
tightened and made the rules more strict. Thus, the Rule now requires that an offense " has in fact just
been committed. " This connotes immediacy in point of time and excludes cases under the old rule where
an offense "has in fact been committed" no matter how long ago. Similarly, the arrestor must
have "personal knowledge of facts indicating that the arrestee has committed it" (instead of just
"reasonable ground to believe that the arrestee has committed it" under the old rule). Clearly, then, an
information could not just be filed against the petitioners without due process and preliminary
investigation.
C. The majority decision's rationale that the Nolasco case invoked by petitioners is not applicable
here since the trial court had granted bail to Nolasco for a number of non-capital offenses, whereas
in this case petitioners are charged with the capital offense of rebellion and the trial court has not
allowed bail. This is erroneously premised. As already emphasized above, the instant information for
rebellion against petitioners is null and void for denial of due process. What remains is the PDA, just
like in the Nolasco case. There, the trial court granted bail. Here, it is this Court that has granted bail
in the form of its May 23rd "immediately executory" release order. It certainly would be judicial
anathema that this Court ordered compliance with the bail order of the trial court in the Nolascocase
and yet feel impotent to enforce its own "immediately executory" release order of the petitionerslawyers upon their counsel's recognizance. More so, when the petitioners are members of the
Philippine Bar and officers of this Court.
The irony of the situation can be thus depicted. Had this Court simply ordered the immediate
enforcement without delay of its May 23rd order, by May 24th, the petitioners would have not been
under detention. There would beno basis to claim that they were "lawfully arrested without warrant"
and therefore could be instantly charged for the most heinous crimes without preliminary
investigation.
D. As stressed by the writer in German vs. Barangan, 69 "to require the citizen at every step to assert
his rights and to go to court is to render illusory his rights. " Here, the flaunting and disregard of the
Court's immediately executory May 23rd release order by not releasing the petitioners-lawyers so that it
could be claimed that they fell under Rule 112, section 7 and considered as "lawfully arrested without
warrant" wherein "the information may be filed by the ... fiscal without preliminary investigation having
been first conducted, on the basis of the affidavit of the offended party or arresting officer or person"
(which affidavit had long been executed since January, 1985 while the unlawful arrests were made on
May 10-13 and in no way could be termed as in flagrante delicto would render illusory petitioners' right to
due process and preliminary investigation. The majority decision should properly apply the case
of Abejuela cited by it 70 that the trial court is called upon "not to dismiss the information but hold the case
in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. " Meanwhile,
this Court's release order should be complied with without one moment's delay. Respondents' filing two
days later on May 25th of an "urgent motion for reconsideration" could in no way cause or justify
suspension or non-compliance with this Court's release order.
15. Same standard in Galman case of not jeopardizing accused's constitutional rights should be
applied. In the recent case of Galman vs. Pamaran, the majority held that "the only way to cure the

law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in 'fact been
offered [by the prosecution] ... (hence) the testimonies compelled thereby are deemed immunized
under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be
made to depend on a claim of the privilege against self- incrimination which the same law practically
strips away from the witness." The same standard and concern of not placing the accused "in
jeopardy of their constitutional rights" through denial of due process and their right to preliminary
investigation should be applied here. The only way is to construe it in the manner as if this Court's
release order had in fact been immediately complied with and petitioners could in no way be deemed
as "lawfully arrested without warrant." Otherwise, the Rule on preliminary investigation would not be
"cured of its unconstitutional effects" by allowing the railroading on May 27th of the instant
information for rebellion without preliminary investigation thru respondent general's contumacious
and unlawful act of disobeying the Court's May 23rd release order. This was the same standard that
would have been applied in the Court's aborted decision inEastern Broadcasting Corp. (DYRE) vs.
Hon. Dans, Jr. 71 There, this Court brushed aside respondents' procedural arguments to dismiss the
petition as "moot and academic" because of the non-renewal of the petitioner's radio broadcasting
station's license from the time of its summary closure in 1980 up to the time of the Court's determination
in July this year. Instead, as noted in the writer's separate opinion therein, this Court "serve(d) notice that
in the exercise of the judicial power vested in it by the Constitution, it will issue the equitable writs of
certiorari and mandamus to do substantial justice and restore the status quo. In this case, the summary
closure of petitioner's radio station in 1980 having been declared null and void and no valid ground for
non-renewal of its license having been shown, it is as if the said license has been duly extended up to the
end of the current term or year. It is expected that respondents will forthwith return the crystal of the
transmitter and place no further obstacle to the prompt reopening of the radio station so that petitioner
may pick up the broken pieces and rightfully resume its operations (after almost five years of closure) in
accordance with the judgment at bar." Applying this standard to the case at bar, would simply mean that
the clock would simply be turned back to the day of this Court's immediately executory release order of
May 23rd this year, as if the same order had been faithfully and lawfully complied with. Only thus could
substantial and not paper justice be done and the petitioners be not deprived of their constitutional right to
due process and be secured by preliminary investigation against hasty, oppressive and vindictive
prosecution.
16. "The preservation of freedom, like its perfection is a never ending struggle."This was the
exhortation of President Ferdinand Edralin Marcos at the observance at Fort Bonifacio last May 27th
of American Memorial Day. He admonished the people that "democracy is a condition requiring
constant vigilance. Neither totalitarianism nor authoritarianism can by themselves triumph over the
democratic Ideal. But when free men shirk from their duties to society, as well as to themselves, they
imperil their own liberty. When the citizens of a democracy allow themselves to be lulled into
indifference, they seal their own doom. ... If we are to remain free at all, we must show ourselves to
be capable and willing to fight in defense of our way of life. " 72
17. Former Chief Justice Roberto Concepcion, who with IBP President Emeritus J.B.L. Reyes, has
shunned their well-earned rest and in their eighties continue at the forefront of upholding the cause
of freedom and human rights and rendering free legal aid to the poor, disadvantaged and oppressed,
made this plea for the cause of the independence of the judiciary at the hall of the Court which he
once presided with honor, dignity and integrity. "During the 85 years of this century, there has never
been a case as transcendental as this one. We have tried and bolstered to be a democratic society
which is based and predicated upon freedom of speech. But to bolster up the freedom of speech,
we've established the right of every person accused and even detained to counsel. Now, any (act)
tending to impair the disposition of lawyers to represent the accused, is derogatory to the democratic
system, and therefore, derogatory to human rights. It is significant that at first only, I would say, only
persons suspected of being subversives were being arrested and later on salvaged. I don't know
how the word salvage happened to be used, because salvage from what ...Then even the priests, ...
we have started from the North to the Southernmost part of the Philippines, from Abra to Davao, with

lawyers. The only step higher than that echelon is the Judiciary. So it's not only the lawyers that are
being involved in this case, it is the Judiciary, the independence of the Judiciary." 73
His Holiness Pope John Paul II in his address of February 17, 1981 to the President and the Nation
during his Philippine visit stressed that " Even in exceptional situations that may at times arise, one
can never justify any violation of the fundamental dignity of the human person or of the basic rights
that safeguard this dignity Legitimate concern for the security of a nation, as demanded by the
common good, could lead to the temptation of subjugating to the State the human being and his or
her dignity and rights. Any apparent conflict between the exigencies of security and of the citizens'
basic rights must be resolved according to the fundamental principle upheld always by the Church
that social organization exists only for the service of man and for the protection of his dignity, and
that it cannot claim to serve the common good when human rights are not safeguarded."
17. Petitioners'appeal for liberty should be heeded.-Petitioner Ilagan concisely stated at the May
23rd hearing that his objective as BAYAN s chairman is To achieve reforms in the government by
voicing our grievances. " 74 In an open letter to his colleagues of the Integrated Bar, after expressing ,
'grateful appreciation for the generous assistance, both financial and moral, which I and my family
received . . . . (and) welcomed . . . . for reasons of necessity" (which hardliners would consider as a
criminal act of the sympathizers and "assisting and aiding the enemy"), petitioner Ilagan makes this
poignant appeal:
... What we are here for may not be your concern, but that we are here without due
process of law should interest you all if you are true to your calling. We lawyers are
adept at defending persons and interests in all the courts and forums of the land. We,
particularly should be the first concerned at defending our own. But, by all
means, we deserve that sacred right to do so on legitimate, fair and equitable terms.
Never mind that our families have to subsist on the meager earnings of our working
wines, but foremost in our welfare is the right to be free, not only to prepare for our
defense adequately but to give essence to that constitutional tenet that 'every person
is presumed innocent until proven otherwise.' We cannot lay claim of a democratic
society if we, lawyers, not only tolerate a lopsided view of the rule of law but
ourselves fall prey to it.
That we are 'preventively detained' is pure euphemism. Deprived of liberty and
entirely curtailed in the exercise of our basic rights, we are, in every sense, prisoners
of the state. It is in this context that 1, on behalf of your three colleagues here, ask
your whole-hearted support in demanding justice for our cause. 75
Petitioners' eminent counsel make this stirring plea on their behalf:
Constitutional history in republican democratic states is the story of the progressive
triumph and expansion of human liberty as against the assertion of unrestrained
power by monarchs, tyrants and other instrumentalities in the political community.
Civilization under law has been marked by the departure from lese
majeste, the strengthening of legal institutions, especially the independent courts,
and the adoption of rules, substantive and procedural, so that freedom is the general
and normal state of the people. Although in exceptional cases, their individual
freedom could be restrained but only on serious grounds compatible with the
Constitution and always upon due process. This, at any rate, is a fundamental
principle of English and American constitutional law whence our own constitutional
system has been derived.

In the words of Justice Jugo Black


. . . . From the popular hatred and abhorrence of illegal confinement, torture and
extortion of confessions of violations of 'the law of the land' evolved the fundamental
Idea that no man's life liberty or property be forfeited as criminal punishment for
violation of that law until there had been a charge fairly made and fairly tried in public
tribunal free of prejudice, passion excitement and tyrannical power. Thus, as an
assurance against ancient evils, our country, in order to preserve 'the blessings of
liberty,' wrote into its basic law the requirement, among others, that the forfeiture of
life, liberty or property of people accused of crime can only follow if procedural
safeguards of due process have been obeyed.
The determination to preserve the accused's right to procedural due process sprang
in large part from knowledge of historical truth that the rights and liberties of the
people accused of crime could not safely be entrusted to secret inquisitorial
processes. Chambers v. Florida, 309 U.S. 227.
In this jurisdiction, these rules are enshrined in the Bill of Rights in the Constitution
and reenforced by statutes and the Rules of Court.
xxx xxx xxx
If a person is unlawfully deprived of his liberty, he can avail himself of the great writ of
liberty, the privilege of the writ of habeas corpus for the purpose of regaining freedom
in the shortest time possible.
In its early years of practice, the privilege of the writ of habeas corpus was a puny
and unavailing remedy as against the king. For judges were under the influence of
the crown and refused to issue the writ for people who were detained on suspicion of
disloyalty to the former but against whom there was no concrete evidence, and the
people continued "to languish in extended detention. To remedy this evil, the Habeas
Corpus Act was adopted in 1679. Ex Parte Watkins, 7 L. Ed. 193, 201; Ex Parte
Yerger, 8 Wall. 85: MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND
314-315.
Since then, the privilege of the writ of habeas corpus has become the fundamental
instrument against arbitrary and lawless state action. .
The suspension of the privilege of the writ of habeas corpus carries with it the
derogation of the people's freedoms and liberties. Therefore, the provisions must be
strictly construed and cannot be allowed to extend to situations not explicitly allowed
by the Constitution.
Obliquely and subliminally respondents suggest to this Court to go back in history
and to dismantlethe intricate system of reenforcing rules, principles and procedures
that have developed through centuries of struggle for the more efficacious protection
of individual liberty. They seek a return to thelese majeste when the voice of the King
was the voice of God so that those who are touched by hisabsolute powers could
only pray that the King acted prudently and wisely. Similarly respondents would have
this Court and the people accept the proposition that the State's designation of
persons as rebels and subversives without more is adequate basis for their
immediate and indefinite detention. And that regardless of the quality or absence of

evidence, the courts are powerless to intervene in behalf of the persons so


designated.
The Rule of Law and constitutionalism mean precisely the existence and the efficacy
of legal institutions to protect and defend the rights and liberties of the people so they
no longer have todepend upon prayers for the purpose.
Petitioners invoke the power of this Court to uphold the Constitution and to protect
the rights of the people and to reject the basically undemocratic
proposition suggested by respondents. 76
I submit that the Court should heed petitioners' appeal for liberty. An editorial after the Court's
stillborn May 23rd Resolution graphically articulates the compelling reasons for granting their plea for
liberty:
The government is not only the Chief Executive and the Batasang Pambansa. It
necessarily includes the Supreme Court and the other courts. And time and again it
has been shown that the performance of the judiciary affects the complexion of the
two other branches.
The en banc resolution of the Supreme Court ordering the release from confinement
of the three Davao lawyers who have acted as defense counsel in national security
cases illustrates the point.
The resolution shows the power of the judicial review and affirms the supremacy of
the Constitution.
It shows the independence of the judiciary and allays the fear of the opposition that,
the judiciary is an instrument of the Chief Executive.
xxx xxx xxx
Where the Constitution of the democracy is not supreme, the Supreme Court
weakens as the Chief Executive becomes stronger. Where that situation obtains, the
people no longer trust the courts nor the Constitution.
In the democracies, the judiciary is usually the 'weakest' of the branches. But here
and at this time, the exclusion of the judiciary from an analysis of the kind of
government that obtains would make a big difference.
A government without an independent Supreme Court would be like an automobile
without brakes. 77
I vote to grant the petition for habeas corpus and to set the petitioners immediately at liberty.
Petitioners must be granted their constitutional right to due process and the right to preliminary
investigation, as granted by statute and expressly assured to them by respondents in open court at
the May 23rd hearing. The railroaded ex-parteproceedings and orders in the instant rebellion case
should be declared null and void for lack of jurisdiction in having deprived petitioners of their sacred
constitutional right to due process.
CONCEPCION, JR., J., dissenting:

1. I dissent. The petition is not moot and academic.


2. Petitioners should be set free immediately because they were arrested unlawfully, and the
information filed against them dismissed for being null and void. However, the authorities may, if they
choose to do so, file a case against petitioners in the Fiscal's Office of Davao. The fiscal should
conduct a preliminary investigation as required by law. If he finds the existence of a prima facie case,
then he should file the necessary information in court. After the court issues a warrant of arrest
against petitioners, only then may they be placed in custody.
3. Petitioners have a right to a preliminary investigation, and infringement of this right is a denial of
due process.
4. The instances when a person may be arrested without a warrant are clearly laid down by Rule 113
of the 1985 Rules on Criminal Procedure as follows:
SEC. 5. Arrest without warrant when lawful.-A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 1 1 2, Section 7. (6a, 17a). "
5. From the facts brought out by the pleadings and at the hearing, petitioners' arrest does not fall
under any of the instances enumerated above. Their arrest without a warrant is therefore patently
and undeniably illegal and contrary to law.
6. Just as a spring polluted at its source cannot produce a flow of clean water, the unlawful arrest of
petitioners cannot give rise to a valid information. The information filed in court against them
necessarily is and must remain null and void.
7. In Morales, 1 this Court cautioned against arrests without warrant in this wise:
14. Care should be exercised in making an arrest without a warrant. Where there is
no justification for the arrest, the public officer could be criminally liable for arbitrary
detention or unlawful arrest or for some other offense."
8. It is the responsibility of the judiciary to define and maintain the delicate balance between
individual freedom and the security of the State. In the fulfillment of this mission, the active
participation and assistance of dedicated human rights lawyers are indispensable. They sacrifice

time and effort, and take grave risks to defend the rights of their clients. I salute them and say, "May
their tribe increase."
9. At a time when the Armed Forces of the Philippines has to play a salient role in our affairs of
government in view of the existence of a rebellion in our midst, there is all the more a greater need
for lawyers to defend the rights of individuals against actual or possible abuses of agents of the
State.
10. We must strengthen and solidify the Rule of Law. It is the only way to the survival of democracy
in our land.
Patajo J., concur
ABAD SANTOS, J., dissenting :
It was Holmes who said that the life of the law has not been logic; it has been experience. Thus the
early Roman law was ritualistic and highly formal. Gradually, however, it evolved and form was
replaced by substance. The development of the law did not stop there. The Roman praetorian law
enlarged, supplemented and over-rode law which became narrow and rigid in scope. Finally,
common law produced equity jurisprudence. It is a formal set of legal and procedural rules and
doctrines to aid and even override common and statute law in order to protect rights and enforce
duties fixed by substantive law.
The majority opinion appeals to the mind for it appears to be logically constructed. It leans heavily on
the letter of the law. Upon the other hand the dissenting opinion of Justice Teehankee which is his
article of faith appeals both to the mind and the heart for it is based not only on law but on equity
also.
I believe that Justice Teehankee's opinion better serves the ends of justice and I gladly subscribe to
it. I also subscribe to Justice Concepcion's separate opinion

Separate Opinions
MELENCIO-HERRERA, J., concurring
I wish to express my views on other aspects of this case with which the majority does not concur.
It is to be noted that in the Warrant of Arrest issued by the Executive Judge of the Regional Trial
Court of Davao City "no bail" has been indicated. Neither was bail recommended by the City Fiscal.
However, pursuant to Presidential Decree No. 1834, even as amended by Presidential Decree No.
1974 (May 2, 1985), the crime of Rebellion is still punishable by "reclusion perpetua to death."
Presidential Decree No. 1974 did not reduce the penalty for Rebellion under Article 135 of the
Revised Penal Code, as amended by Presidential Decree No. 1834, but merely "tempered" the
penalties for "conspiracy or proposal or inciting to commit such crimes," limiting the amended
provisions to Articles 136, 138, 141, 142, 142-B, 143, 144, 146, and 147, but not to Article 135 of the
Revised Penal Code.

Considering, therefore, that the detained attorneys are not entitled to bail as a matter of right before
the prosecution is heard on its evidence, and observing fealty to the Constitutional mandate that "all
persons, except those charged with capital offenses, when evidence of guilt is strong, shall before
conviction, be bailable by sufficient sureties" (Section 18, Article IV, 1973 Constitution), the Regional
Trial Court of Davao City, Branch X, should be directed in Criminal Case No. 12,349, to determine
whether the evidence of guilt against the detained attorneys is strong, and considering the gravity of
the offense charged, it should likewise be required to hear the case to completion with deliberate
speed so that their guilt or innocence may be determined without delay.
Furthermore, pending resolution by this Court of the crucial issues raised in Garcia-Padilla and
in Integrated Bar of the Philippines, et al vs. Min. Juan Ponce Enrile, et al. (G.R. No. 66610)
consolidated with National Bar Association of the Philippines, et all vs. Min. Juan Ponce Enrile, et
al. (G.R. No. 66706), it is my view that individuals against whom PDA's have been issued should be
furnished with the original, or the duplicate original, or a certified true copy issued by the official
having official custody of the PDA, at the time of apprehension. Pursuant to the Rules and
Regulations Implementing Presidential Decree No. 1877, as amended by Presidential Decree No.
1877-A, the PDA's should also be enforced within 24 hours in the Metro Manila area or within 48
hours outside Metro Manila, upon receipt by the unit concerned. In this case, although the record
does not show such date of receipt, the fact is that the PDA was issued on January 25, 1985 but the
detained attorneys were arrested only on May 10 and 13, 1985, respectively. The four-month gap
can give room for doubt as to its authenticity and whether, in fact, the detained attorneys posed "any
appreciable danger to national security and public order. "
The paramount consideration should be that the Constitutional "right of the people to be secure in
their persons ... against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated" (Section 3, Article IV, 1973 Constitution). Until the issue of the validity
of the PDA is finally resolved, PDA's applied for on the basis of militancy alone in national security
cases, of insufficient surveillance, or unsupported deductions and inferences, contravene the
Constitutional mandate that "no 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" (ibid.).
Adherence to Constitutional mandates could ease the current discontent and growing insurgency
gripping the nation today. The objective should be to fight for the hearts and minds of the people by
observing the rule of law.
Lastly I venture to invite attention, particularized for this case, that the Constitution provides for the
vesting of judicial power not only in this Court but also in inferior Courts established by law. While
this Court can reverse and modify, on appeal or certiorari, actuations of inferior Courts, the latter, as
wielders of judicial power, can not only invoke, but also be entitled to, "procedural due process".
Without a hearing, howsoever formal, the involved Regional Trial Court branch in Davao City should
not be deprived of jurisdiction, substantial or even initial, over persons it has ordered, or confirmed
as, arrested.
TEEHANKEE, J., dissenting
More than four (4) agonizing months * after this Court issued its near-unanimous Resolution 1 of May
23, 1985, after hearing the parties in oral argument in the morning, ordering the immediate release of the
three petitioners-detainees, Attys. Laurente C. Ilagan, Antonio B. Arellano and Marcos D. Risonar, Jr., on
the recognizance of their principal counsel, retired Chief Justice Roberto Concepcion, Chairman,
Integrated Bar of the Philippines national legal aid committee, and retired Justice Jose B. L. Reyes,
President Emeritus of the Integrated Bar of the Philippines, as well as the president and officers of their
own IBP Davao chapter, which release it had expressly ordered to be "immediately executory", this Court
has now refused to enforce its own release order. Repeated motions for enforcement of this Court's

"immediately executory" order of release as against respondents' "brazen disrespect and contemptous
disregard" 2 thereof were filed in vain. It has instead dismissed the petition for habeas corpus for having
become "moot and academic, " because of the arbitrary filing of precipitate, vindictive and
oppressive charges against them for the capital crime of rebellion without hearing or preliminary
investigation and in gross violation of their constitutional right and rudimentary requirements of due
process and fair play.

I. Antecedent Facts.The three lawyers, Attys. Ilagan, Arellano and Risonar, Jr., FLAG (Free Legal
Assistance Group) human rights lawyers of Davao City, were illegally arrested and brought to the
military stockade at Camp Catitipan, Davao City one after the other on May 10, 11 and 13, 1985,
upon mission orders issued by the prime mover and initiator of the operations, respondent General
Dionisio S. Tan-Guate, Jr. (hereinafter referred to as respondent general). The mission orders (which
are military orders for carrying out a specific mission or military operations) are not warrants of
arrest, much less Preventive Detention Actions (PDA's). The orders did not state what were the
offenses allegedly committed, although indicating that they were being issued pursuant to a PDA,
which was never shown nor produced by respondent general until a xerox copy thereof dated as
early as January 25, 1985 was submitted with the respondents' return to the writ. No copy thereof
was given the petitioners nor were they given any reason for which the three lawyers were taken into
military custody.
The first lawyer, Atty. Ilagan, was picked up at 10:45 a.m. on May 10th while taking a snack with
some friends at a place in front of his office at C.M. Recto St. His military arrestors denied his
request to be allowed to go to his office "a few meters away" so he could give instructions to his
associates about a case scheduled for hearing that afternoon. 3 The second lawyer, Atty, Arellano, a
law professor at the Ateneo de Davao law school, was one of fifteen IBP Davao Chapter lawyers who
insisted on visiting Atty. Ilagan at the military camp on May 11th despite the military custodians' initial
refusals that no visitors could be allowed "unless first cleared by R-2 (intelligence) or Gen. Tan-Guates
aide." After the visit, he was told that he was under arrest under the mission order which was merely
shown to him and he was no longer all owed to leave the camp. As he told the Court: "I just (went) to visit
my colleague, a member of the IBP, to render legal assistance as I'm supposed to do as an officer of the
Court. I came to visit, I came to render legal assistance. I was arrested and detained." 4 On May 13th, the
third lawyer, Atty. Risonar, Jr.. having received word from the military that he was wanted, presented
himself at Camp Catitipan. He was not shown even the mission order, much less a PDA or warrant of
arrest. He was so shaken up by the traumatic experience of being himself wanted and arrested by the
military (not having been given even a traffic violation ticket in his whole life) instead of his accustomed
role of helping hapless persons who have come across their path and assisting as a member of the
Human Rights Committee "not only political detainees, but workers, students, teachers and urban
community" that he almost broke down at the hearing and had to be asked to take firm hold of himself. 5
After the filing of the petition at bar and the issuance of the writ of habeas corpus to produce in court
the persons of the three lawyers at the scheduled May 23rd hearing, they were transferred at 10
p.m. of the night of May 20th to the Metro-Discom stockade in Davao City and herded with a fourth
person in a cramped cell, "a very small cell good only for 2 people. " The next day, they were picked
up by "2 PC jeeps loaded with fully armed men" and in the words of Atty. Arellano, "in the presence
of the detainees in the stockade, ... many of whom are my clients and in the presence of their
visitors, ... and in the presence of our wives, ... we were handcuffed like ordinary criminals, and we
were transported from that stockade up to the airport and from the airport we were brought to Manila
and then we were brought to Camp Bicutan." 6 They have been since detained there, their lives
shattered, uprooted from their homes and families, and deprived of their livelihood and their families left to
fend for themselves.
The Integrated Bar of the Philippines and other petitioners complain in their verified petition that
"(B)eyond the harassment and the illegal arrest and detention of these three advocates, are grave
implications for the craft. Their arrest appears to be a prelude to a campaign to ultimately deprive the

accused in national security cases of the services of counsel in violation of the Constitution," citing "a
readily discernible pattern from events in the recent past" including the killings of FLAG Atty. Zorro C.
Aguilar and newsman Jacobo Amatong who gave an antemortem statement "that it was the military
that shot them" in Dipolog City on September 23, 1984 and the killing of Atty. Romraflo R. Taojo in
his own home in Tagum, Davao del Norte on April 2, 1985, who had been allegedly warned by the
military about the nature of the cases he was handling. The petition further cited the case of
petitioner MABINI trustee and co-founder Atty. Jojo Binay who was successful in having several
criminal cases against his client Dr. Nemesio Prudente dropped, but in April this year "found himself
a co-respondent with his client Dr. Prudente in a new subversion charge filed by the military with the
provincial fiscal of Rizal. " Also cited were the cases of Attys. Romeo Astudillo and Alberto Benesa
both former IBP Abra chapter presidents and Abra FLAG chairman and member, respectively, who in
the same month of April this year "were arrested by the military, charged with subversion, and
presently confined at the Constabulary stockade in Bangued, Abra, Since 1979, they were the only
human rights lawyers in Bangued, Abra. Since their arrest, there are no lawyers anymore handling
such cases." 7 Between the two of them, they reportedly handled a total of about 120 subversion cases
and "not one of their clients was even convicted due to 'lack of evidence.' " 8
The petition quoted respondent general's press statement issued on May 10th that ... the arrest of
Ilagan, 'who had lately been engaged in human rights lawyering for suspected persons detained for
subversion, rebellion and other charges' was 'long overdue' (Business Day, May 13, 1985, p.
11)" 9 and the exertion of pressure upon other Davao human rights lawyers in this wise:
The tension mounted when another lawyer Silvestre Bello III, BAYAN national
organizing committee member, got word from Jesus Dureza President of the
Integrated Bar of the Philippines, Davao del Sur chapter, that Estares was 'inviting'
Bello to Camp Catitipan. Bello, in an earlier interview, said they were assured by
Estares that in case they would be slapped with a PDA, they would not be picked up
like what happened to Ilagan but instead just 'be invited' to Camp Catitipan as in
Arellano case.
Estares, on the other hard, told Business Day they were just 'inviting' Bello to 'visit his
friends,' PC-INP regional commander, Dionisio Tan- Gatue also told newsmen in a
phone interview that he was just inviting Bello to visit him. Tan-Gatue however,
declined to comment on whether or not there will be more arrests in the next few
days. 'Just wait and see,' he said. (Business Day, May 13, 1985)
"The aforesaid report has been confirmed by the IBP Davao Chapter."

10

The petition, noting that "(T)hese trends are ominous for members of the Bar especially those who
are engaged in pro bono publico work who have incurred the ire of the military," 11 invoked the writ of
habeas corpus as the great writ of liberty on behalf of the three lawyers. IBP President Emeritus J.B.L.
Reyes made this eloquent plea against thisDamocles' sword wielded by the military in that its value is not
that it falls but that it hangs, and it hangs over every lawyer at the present time, engaged or not in the
defense of anybody":
That is why, if Your Honors please, we have here all the representatives of the Bar
organizations because they are all threatened under this method that is being
adopted by the military, that anybody who thus ran against their Ideas of what a
citizen should do, becomes ipso facto suspect and ipso facto rebel or a subversive.
And that is the reason why we've come to this Court, because with all this publicity.
Even if only 3 or 5 lawyers are arrested all the others will be afraid. If Your Honors
will recall that we are arguing the constitutionality of this PDA, we happened to quote

from the United States Supreme Court, that the value of the Sword of Damocles is
not that it falls but that it hangs, and it hangs over every lawyer at the present time,
engaged or not in the defense of anybody How do we know how many more lawyers
will be in the future arrested. 12
Or as then Associate (now Chief) Justice Makasiar in 1980 stressed before the Philconsa against the
proposal then to return the administrative supervision of inferior courts from the Supreme Court to
the Ministry of Justice: "The warning has been issued that a tyrant, who wants complete and
absolute control over the people, will first seduce and eliminate the lawyers and thereafter destroy
the courts. This tragedy must be
averted." 12-a
Respondents' return made the startling charge that the three lawyers (all practitioners of long good
standing since 1971, 1977 and 1976, family men and without any derogatory record) "have been
arrested and detained because of evidence that they are members of the Communist Party of the
Philippines or its partner, the National Democratic Front, and have been active in organizing mass
actions intended to further the communist cause," and "(I)n truth, the PDA against the three lawyers
was issued as early as January 25, 1985, shortly after the series of welgas conducted late in 1984.
But, with the President's knowledge and concurrence, the military in Region 11 tried to withhold its
implementation precisely in the hope that the need for such action would pass, forestalling a
possible misinterpretation of the government's motive in making the arrest. The situation in Southern
Mindanao has, however, deteriorated compelling the government to act swiftly, arrest the communist
leaders behind the welga and stem the tide of mass disturbance sweeping the area." 13 Ironically,
while the state attorneys specifically pleaded that there is evidence that the three lawyers
are communists, yet they invoke the Garcia Padilla rulingthat "the Court may not inquire into it" 14 and that
"because of the suspension of the writ of habeas corpus, the Courts have no authority to look into this
evidence" 15 which led then Chief Justice Fernando to ask in exasperation:
CHIEF JUSTICE
Q But what is the connection between them? You can always, your
pleading is quite extensive, but until now according to you there is
evidence but you are not at liberty to reveal that evidence. What good
will it do to the Court then? What is their [the lawyers]connection with
the acts that are rebellious in character or subversive? That perhaps
will give the possibility [for] their continued detention? 16
Still, at the hearing of May 23rd, it was clearly stressed that notwithstanding that the PDA had been
secured since January 25, 1985 by respondent general, supposedly "on the basis of evidence and
verified reports," when questioned why no information had been filed against them "considering
that as early as January 25, 1985 there had been [allegedly] evidence that they had
committed subversion, " respondents assured the Court that the detained lawyers would be "entitled
to a hearing ... when the time comes that we file charges [which] will be decided by the prosecuting
officer of the government" (upon interpellation of Mr. Justice Relova and reply of Assistant Solicitor
General Eduardo G. Montenegro). 17 Respondents' counsel had at the hearing claimed that "these three
lawyers companeros of mine are active members of the Communist Party of the Philippines, [as]
witnesses we have captured NPA's." He said that these statements given by former NPA's were shown
him by military officers, but when questioned as to whether these states were "newly prepared also or
long existing, " he was specifically warned againstswallowing hook, line and sinker" the assertions of
such professional witnesses and of the imperative necessity of conducting an independent investigation,
thus:
JUSTICE CUEVAS:

Q What (did) your evidence consist of ?


ASST. SOLGEN:
A Statements given by former members of the New People Army in
Davao Your Honor, there are NPA's who surrendered and then
subsequently . . .
JUSTICE CUEVAS:
Q And these evidences were in your possession long prior to the
arrest and detention of these 3 lawyers?
ASST. SOLGEN:
A In our possession, Your Honor no, sir, because I saw them only
when we were preparing the return, Your Honor.
JUSTICE CUEVAS:
Q From whom did they come from, if you know.
ASST. SOLGEN:
A I was shown that by these Military Officers.
JUSTICE CUEVAS:
Q Newly prepared also or long existing?
ASST. SOLGEN:
A Your Honor please, I . . . .
JUSTICE CUEVAS:
Q You answer positively because I'll ask them, when they were
turned over to you were they newly prepared also? When were they
prepared?
ASST. SOLGEN:
A I do not remember the date now but I was reading it. Anyway, Your
Honor, the reason why we did not attach this to our return is this, that
most of those . . . .
JUSTICE CUEVAS:
Q That is very very material, simply because there is rebellion in the
count I do not think it warrants the picking up of anybody?

ASST. SOLGEN:
A Yes, Your honor.
JUSTICE CUEVAS:
Q That is following up under your theory?
ASST. SOLGEN.
A Yes, Your Honor, because the surrendered NPA's who gave those
statements, at least 3 of them, have not yet been surfaced by the
Government. Their Identity are still not to be divulged because the
Military is not through yet in its investigation with respect to these
people. So they are not to be mentioned.
JUSTICE CUEVAS:
Q My theory because I had been a Fiscal also, Mr. Assistant Solicitor
General as you know, there are people who are, who had the
appetite of giving any kind of affidavit. In fact, I had prosecuted an
accused who is even willing to testify that he witnessed the shooting
of Rizal in Luneta?
ASST. SOLGEN:
A That may be true, Your Honor.
JUSTICE CUEVAS:
Q You should not swallow 'hook, line, and sinker,' that is our
apprehension in particular?
ASST. SOLGEN:
A Yes, Your Honor. May I continue, Your Honor. Now, Atty. Ilagan, in
particular
JUSTICE TEEHANKEE:
Q This is an appropriate time I believe, what Justice Cuevas has
mentioned was that, in other words, you brought these affidavits?
ASST. SOLGEN:
A Yes, Your Honor.
JUSTICE TEEHANKEE:
Q But you have to check them out?

ASST. SOLGEN:
A Yes, Your Honor.
JUSTICE TEEHANKEE:
Q Check the background of these people and check out their
assertions as against an independent investigation. As if they say on
such and such a date Attorney Ilagan was in the mountains; you have
to check that out, you can't just swallow on its own. There areso
many of these professional witnesses?
ASST. SOLGEN:
A That may be true, Your Honor, there are professional witnesses,
Your Honor.
JUSTICE TEEHANKEE:
Q There are, you know that and we all know that.
ASST. SOLGEN:
A Yes there are. Now, may I continue, Your Honor.
CHIEF JUSTICE FERNANDO:
A Yes, but please you must go directly. 18
CHIEF JUSTICE FERNANDO:
Q We've heard that before but again [what is] the connection of these
people?
SOLICITOR ABAD:
A Well, the position of the Military is that ....
CHIEF JUSTICE FERNANDO:
Q They are human rights lawyers, they have been defending several
persons accused of crimes of . . . . and they had been doing as
members of the Bar. Now they are picked up and apprehended, at
least justify that.
SOLICITOR ABAD:
A Well, I appreciate that, Your Honor please, anyone belonging to the
middle forces who campaign in the open to organize the populace for

support to the revolution must really have some front, because when
it comes to a revolution .
CHIEF JUSTICE FERNANDO:
Q But again you say they are the front of these people, where is the
evidence to substantiate this conclusion? They are all naked
assertions thus far?
JUSTICE TEEHANKEE:
Q Mr. Counsel, your theory seems that anybody who joins in a
protest or a demonstration against grievances and abuses as
perceived by them is a . . . . joining this middle force is
a communist already?
SOLICITOR ABAD:
A That is certainly not our theory, Your Honor, that is not the theory of
the
Government. 19
After the hearing, and as already indicated, the Court ordered the immediate release of the three
lawyers-detainees on recognizance of their principal counsel per its Resolution of May 23rd, which it
expressly ordered to be "immediately executory. " But the camp commander at Camp Bagong Diwa
did not honor the Court's release order, saying that "it had to be verified from higher authorities." So,
petitioners filed their manifestation and motionon May 24th, reporting the non-release and praying
that the immediate release of the three lawyers on recognizance of their principal counsel be
effected in the premises of the Supreme Court, as had been done in previous past cases.
On the next day thereafter, May 25th, respondents filed an urgent motion for
reconsideration, invoking anew the Garcia-Padilla ruling 20 that the courts could not entertain petitions
for habeas corpus of persons detained under Presidential Commitment Orders (now supplanted by
PDA's),
Without awaiting this Court's action on their aforesaid motion for reconsideration, respondents,
particularly respondent general, somehow got th City Fiscal of Davao City to precipitately file on May
27, 1985, without any preliminary investigation, an information against the three petitioners' lawyers
for the capital crime of rebellion with the Regional Trial Court of Davao, Branch X. 21 The said trial
court grossly disregarding the deference that all inferior courts should accord this Court as the highest
court of the land (since the military's equally gross disregard of this Court'sMay 23rd order for the release
of petitioners-lawyers was a matter of public notice, having been prominently reported in all national and
local newspapers) just as precipitately issued a warrant of arrest with no bail against said petitionerslawyers. Respondents then filed on May 28th their Urgent Manifestation/Motion, annexing copies of the
information and warrant of arrest, praying for the dismissal of the habeas corpus petition at bar on the
ground that it has become moot and academic.
In their required comment on the state's action, petitioners' lawyers stated that the fiscal misinvoked
section 7, Rule 112 which allows the filing of an information without preliminary investigation "when
the person is lawfully arrested without a warrant," i.e. in flagrante delicto (which is not the case here).
They asserted petitioners' constitutional right to due process and the right to a preliminary
investigation as granted by statute and expressly assured to them in open court at the May 23rd

hearing. They denounced the "cabal among military authorities and the prosecution arm of the
government" with the contumacious cooperation of the trial court to deprive them of due process and
to circumvent this Court's release order, as follows:
3.1. Preliminary investigation is instituted to secure the innocent against hasty,
malicious and oppressive prosecution and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of public trial, and also to
protect the state from useless and expensive trials. The right to preliminary
investigation is a statutory grant and to withhold it would be to transgress
constitutional due process. Salonga v. Hon. Ernani Cruz Pao, G.R. No. 59254,
February 18, 1985, citing Trocio v. Manta, 118 SCRA 241; Hashim v. Boncam, 71
Phil. 216; People v. Oandasa, 25 SCRA 277.
3.2. Petitioners having been deprived of their constitutional right to due process by
the Fiscal of Davao, therefore, the information for rebellion filed against them is void.
3.3. The information filed by the Fiscal of Davao being void, the Regional Trial Court
of Davao has acquired no jurisdiction over the case of rebellion filed against
petitioner. Therefore, all orders, warrants, processes, and issuances of the Court
relative to the case, including the warrant for their arrest, are issued without authority
and therefore null and void.
3.4. What becomes evident in the face of these developments is a cabal among
military authorities and the prosecution arm of the government to bend and short
circuit rules in order to deprive petitioners of their right to due process guaranteed by
the Constitution, and to circumvent the order of this Court for their release. It is
deplorable that the Regional Trial Court of Davao has lent itself to this conspiracy to
undermine the Constitution and the authority of this Court.
3.5. All proceedings and orders in connection with the case of rebellion against
petitioners being of no legal effect these cannot have the consequence of rendering
the case moot and academic. 22
II. The merits of the petition.I have gone to great lengths to restate hereinabove the antecedent
facts as established by the pleadings and annexes of record and the hearing held by the Court on
May 23rd. I submit that on the basis of these established facts, the "sacred constitutional rights [and]
also the right to 'due process' which is fundamental fairness " as imperatively stressed by the
majority decision in the recent case of Galman vs. Hon. P.J. Pamaran 23 have been grossly denied the
three lawyers detainees. This Court's "immediately executory" release orderof May 23rd (issued over four
months ago) should be forthwith honored and complied with. Far from having rendered the petition as
moot and academic, all the railroaded proceedings and orders charging the three petitioners-lawyers
with instant rebellion in gross disregard of the pendency of this case and of the assurance given in open
court that the petitioners-lawyers would be entitled to a hearing and a preliminary investigation in
obedience to the constitutional mandate that "no person shall be deprived of life, liberty or property
without due process of law" and "no person shall be held to answer for a criminal offense without due
process of law, " 24 should be declared null and void. They were patently void, having been issued without
jurisdiction under the well-settled rule that "a violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment [or order] is null and void and confers no rights. " 25 At the
very least, all proceedings in the instant rebellion case before the Davao trial court should be suspended
and enjoined until the petitioners-lawyers are granted their right to a preliminary investigation and the
opportunity to confront their accusers and disprove the charges; meanwhile, it is but part of due process
that they be set free as ordered by the Court and be enabled to prepare their defense. The petition under

the great writ of habeas corpus to set them at liberty should accordingly be granted for the following
fundamental reasons and considerations:

1. Basic Right to Due Process.The Bill of Rights expressly mandates that ... 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 ." 26This plainly means that generally no person may
be held to answer for a criminal offense without a preliminary investigation. The right to a preliminary
investigation is statutorily granted for serious offenses and to deny it violates the right to due process
guaranteed by the Constitution. 27 Preliminary investigation has been instituted precisely to secure the
innocent against hasty, malicious and oppressive prosecution. Moreover, the instant rebellion case filed
against the petitioners manifestly falls under three recognized exceptions to the general rule that criminal
prosecution may not be blocked by court prohibition or injunction, namely, "l. for the orderly administration
of justice; 2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner; ...;
and 4. to afford adequate protection to constitutional rights. .... 28
2. Petitioners-lawyers denied due process.The blitzkrieg filing of precipitate, vindictive and
oppressive charges against petitioners-lawyers for the capital crime of rebellion without hearing and
preliminary investigation deprived them their right to due process and the rudimentary requirements
of fair play. As the majority, quoting former Chief Justice Enrique M. Fernando, emphasized in the
recent case of Galman vs. Pamaran, supra, 29 "due process ... is responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun
the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action
marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the
embodiment of the sporting Idea of fair play ... It exacts fealty 'to those strivings for justice' and judges the
act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that
reflect (democratic) traditions of legal and political thought.' ... It is not a narrow or 'technical conception
with fixed content unrelated to time, place and circumstances,' ... decisions based on such a clause
requiring a 'close and perceptive inquiry into fundamental principles of our society.' ... Questions of due
process are not to be treated narrowly or pedantically in slavery to form or phrases. .... " 29-a
3. Right to preliminary investigation.-The May 23rd hearing brought out the importance of preliminary
investigation to prevent hasty and baseless prosecution, since respondents could not cite concrete
evidence of specific criminal acts committed by respondents. Respondent general secured the PDA
on January 25, 1985 on the basis of affidavits of surrendered NPA's supposedly incriminating the
petitioners, which was issued "on the basis of evidence and verified reports that the (petitionerslawyers) have committed subversion and/or acts inimical to public safety, national security and public
order." 30 Respondents would cavalierly tag the petitioners-lawyers as having gone "beyond purview of
lawyering, but even to the extent of attending CPP and NPA rites, and using their profession as lawyers
as cover-up for their activities in furtherance of CPP goals and objectives, "as per the affidavit executed
under date of January 22, 1985 by the Davao intelligence chief Lt. Col. Nelson J. Estares. 31 As pointed
out by petitioners in their verified traverse, this affidavit has no probative value. It is not based on the
affiant's direct knowledge but offers hearsay, on his alleged interviews with surrendered NPA's and "to the
best of [this] knowledge and ability." It would have been a simple matter for the alleged witnesses to have
executed their own affidavits. In turn, petitioners have categorically denied that they are members of the
CCP or NDF. Attys. Ilagan and Arellano said in open court that they are chairman and secretary-general,
respectively, of BAYAN-Mindanao, affiliated with the national organization of BAYAN (Bagong Alyansang
Makabayan) with former Senators Lorenzo M. Taada and Ambrosio Padilla as chairman and vicechairman, respectively, and among whose national leaders is former Manila Times publisher Joaquin
"Chino" P. Roces. But strangely enough, while the aforesaid documents were executed in January, 1985
to secure the PDA for subversion against petitioners, the instant charge filed without hearing by the fiscal
apparently based on the same affidavits is now for rebellion which would involve the petitioners rising in

arms. The whole point is that petitioners' lawyers have squarely presented to this case the undeniable
and undisputed facts that they have been denied their right to preliminary investigation and to show the
utter falsity of the charge of instant rebellion against them. Such right was assured them in open court by
the State's attorneys. It is this Court which must grant petitioners this right, and uphold their right to due
process. The obiter dictum cited by the majority decision from the case of Medina vs. Orozco 32 that "the
proper forum before which absence of preliminary investigation should be ventilated is the Court of First
Instance, not this Court" has no application. There, this Court found that not only was a preliminary
investigation made, but also a subsequent reinvestigation upon his motion, after which the case against
the accused proceeded to trial.

4. Professional witnesses of military not checked out.-As shown above,


supra, 33 as admitted by the State attorneys, there are so many professional witnesses presented by the
military in such cases, whose statements should not be "swallowed hook, line and sinker." The ex-parte
affidavits of the alleged surrendered NPAs could be checked out as against their background and an
independent investigation only in a preliminary investigation. Such affidavits and statements have been
found to be completely worthless in other cases. In the habeas corpus case of Aristedes Sarmiento, he
and his wife were charged with subversion on March 31, 1983, as ranking leaders of the NPA, after they
had been "invited" and detained at the military camp in Gumaca, Quezon on October 9, 1982. After the
prosecution rested its case, the trial court granted the defense' motion for dismissal of the charges for
utter "worthlessness of evidence." The trial court ruled that "(I)ndeed, there is nothing that the Armed
Forces of the Philippines or any of the law enforcement agencies of the Government could offer to prove
any connection of the Sarmiento couple with any subversive organization, even with the New People's
Army, if ever it is to be considered such, and much more as leaders thereof." This led to an apparently
unheeded call from the now Chief Justice that "The military establishment should inquire into whether the
President was deceived into issuing the PCO and who initiated the arrest of the couple without supporting
evidence." In petitioners' verified traverse, they point out that respondents' "star witness" against
petitioners is one Calixto Alegado III, an alleged former NPA who is now a member of the Philippine
Constabulary. They state that Calixto Alegado Ill is precisely one of those professional witnesses
unworthy of credence who has testified in a number of national security cases and who should be
checked out in an independent investigation as assured by the State attorneys at the May 23rd hearing,
thus: "In Criminal Case No. 9198 before the Regional Trial Court of Davao entitled People of
the Philippines v. Carlito Gaspar, Alegado testified that he witnessed the accused therein giving lectures
for the CPP/NPA at dates when the accused Carlito Gaspar was either in Manila or out of the country,
more specifically in Australia and Latin America. On the basis of this affiant's testimony together with other
supposed former CPP/NPA members, the Regional Trial Court found Alegado not worthy of belief and
acquitted Gaspar. It is significant to point out here that the counsel of Carlito Gaspar in that case is
petitioner Atty. Laurente Ilagan." 34
5. Protective mantle of this Court.The unlawful arrest and detention of the petitioners-lawyers has
completely uprooted their lives. This Court must extend them its protective mantle as officers of the
courts, because of the strong indications, supra, 35 of "ominous trends" for lawyers "who are engaged in
pro bono publico work who have incurred the ire of the military," such as in the case of Abra, where there
are no more lawyers handling subversion cases because the only two human rights lawyers handling
such cases have been charged with subversion and locked up in the stockade. As formulated by Justice
J.B.L. Reyes in response to a question of Mr. Justice Gutierrez why the lawyers were picked out for
criminal charges (when there were non-lawyers who also led the welga), "(Y)es, precisely they pick the
lawyers because I suppose they figure out that in fact the lawyers are actually social leaders in their
respective communities. That is why, if Your Honors please, we are pleading this Court for the prosecution
because after all the lawyers are officers of the Court and if the Court will not protect them, who will?
Certainly not the military. We certainly hope that a lawyer will not, in the long run, will not be asking the
NPA for protection, because nobody else wants to protect them." 36
6. People's right of assembly.-The people's right to freedom of expression and to peaceably
assemble and petition the government for redress of grievances are fundamental constitutional
rights. Mass demonstrations popularly termed as welgang bayan constitute a legitimate exercise of

these basic constitutional rights. Indeed, as the Court stressed in Jose B. L. Reyes vs. Ramon
Bagatsing 37 "The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest." The Court
therein reminded the police (and the military for that matter) of their duty to extend protection to the
demonstrators/participants "staying at a discreet distance, but ever ready and alert to perform their duty."
It further admonished that should any disorderly conduct or incidents occur, whether provoked or
otherwise, such incidents of disorderly conduct by individual members of a crowd should not be seized
"as an excuse to characterize the assembly as seditious and tumultuous rising against the authorities"
and render illusory the right of peaceable assembly. 38
. The military must overcome their allergy if not aversion to such welgas. Acting AFP Chief of Staff
Lt. Gen. Fidel V. Ramos recently, correctly urged those involved in law enforcement and criminal
justice system to "keep themselves up-to-date on the [changing] law and jurisprudence and the
intricacies of implementation" adding that "as law enforcers they must be convinced by heart that
they enforce the law and never violate it. 39
Petitioners candidly state in their verified traverse that "(T)he possibility that the Communist Party of
the Philippines and the National Democratic Front may have participated in or used the events for
their own purposes may be assumed for purposes of argument. It is not fair inference from this
assumption that all those who participated in any significant degree in the strikes and the activities
held in connection therewith are members of the Communist Party of the Philippines or the National
Democratic Front," 40 but they rightfully submit that "(T)o conclude that persons who participate in such
mass activities are communists or subversives and to restrain them in their freedom as a consequence is
the worst form of witch-hunting violative of all principles of fair play and due
process." 41
In the Philippine Blooming Mills case 42 this Court set aside the industrial court's decision dismissing
from employment the workers' labor union's eight officers for having led and carried out a "temporary
stoppage of work" to hold a mass demonstration at Malacaang of all the workers on March 4, 1969 in
protest against alleged abuses of the Pasig police. It held that such dismissal was violative of the
workers' legitimate exercise of their constitutional rights of free expression, peaceable assembly and
petition for redress of grievance, thus:
... Recognition and protection of such freedoms are imperative on all public officers
including the courts (as well as private citizens and corporations ... when even a law
enacted by Congress must yield to the untrammelled enjoyment of these human
rights. There is no time limit to the exercise of these freedoms. The right to enjoy
them is not exhausted by the delivery of one speech, the printing of one article or the
staging of one demonstration. It is a continuing immunity, to be invoked and
exercised when exigent and expedient whenever there are errors to be rectified,
abuses to be denounced, inhumanities to be condemned. Otherwise, these
guarantees in the Bill of Rights would be vitiated by a rule on procedure prescribing
the period for appeal. The battle then would be reduced to a race for time.
7. Preservation of liberties and motives.Good faith must be presumed as well on the part of
respondents as of petitioners-lawyers. The good motive but misplaced overzealousness of the
military, particularly as headed by respondent general in the Davao area, may be noted, obsessed
as they are with keeping peace and order. But it seems appropriate and timely to cite the pointed
reminder of the late Mr. Justice William Douglas as reproduced in the PBM case, as follows:
The challenge to our liberties comes frequently not from those who consciously seek
to destroy our system of government, but from men of goodwill-good men who allow

their proper concerns to blind them to the fact that what they propose to accomplish
involves an impairment of liberty.
... The Motives of these men are often commendable. What we must remember,
however, is thatpreservation of liberties does not depend on motives. A suppression
of liberty has the same effect whether the suppressor be a reformer or an outlaw.
The only protection against misguided zeal is constant alertness of the infractions of
the guarantees of liberty contained in our Constitution. Each surrender of liberty to
the demands of the moment makes easier another larger surrender. The battle over
the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the liberties of none are safe unless the liberties of all are protected.

43

The record of the May 23rd hearing highlights the imperative importance of the injunction that no
matter how worthy the motive may be, the authorities, civilian or military, should not suppress the
people's liberties, and push the aggrieved citizen in despair towards the NPA or the communists; and
respect their constitutional rights as otherwise there would be no difference as against the outlaws or
rebels. For as Brandeis called it, "Crime is contagious. If the government becomes the lawbreaker it
breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy."
The record again underscores the utter lack of evidence to support the unlawful arrest and detention
of the three petitioners-lawyers, thus:
JUSTICE TEEHANKEE:
Q All right, I will ask one more question on that. Since it was
organized, this Mindanao Chapter, in April you already had a PDA in
January. Did you not or the Military exercise strict surveillance daily
over the activities of these people? So that you can catch them with
the goods?
SOLICITOR ABAD
A Well, it is not that simple, if Your Honor please, because rebellion is
not a crime committed (with) not exactly with bouncing checks or
similar crimes.
JUSTICE TEEHANKEE
Q True, that's very true, but ...?
SOLICITOR ABAD
A So precisely a good rebel is one who is not caught, he was able to
lose himself in the populace. How can we expect let's say a member
of a front organization of the NPA will carry an Id, if Your Honor
please.
JUSTICE TEEHANKEE

Q But you have to look into the record of the individual.


SOLICITOR ABAD
A I think they have, Your Honor.
JUSTICE TEEHANKEE
Q You have to look into the record of these individuals here,
lawyers, members of the Bar of good standing, without any
derogatory record, is it within the ordinary course of human conduct
that they would prostitute their profession, pervert it and serve as
fronts?
SOLICITOR ABAD
A Horacio Morales, Your Honor, was a Government Executive, in the
same manner as Atty. Ocampo was a good journalist, but they
admitted they have turned to the communist side. We cannot say that
a background of a man is sufficient guarantee that he is not going to
join the rebellion.
JUSTICE TEEHANKEE
Q As far as Morales is concerned he gave up on reforms, he was
desperate; that is why he says there is no other way...
SOLICITOR ABAD
A Well, that's what I mean, if Your Honor please, an individual
supplace (sic) society, the old society ...
JUSTICE TEEHANKEE
Q Society (should) not push the aggrieved citizen towards the NPA or
the communist party as a last resort. And therefore, we must observe
their Constitutional rights. Otherwise, there is no difference?
SOLICITOR ABAD
A There were 3 million people who were unable to use the streets of
Davao, if Your Honor please, its their constitutional rights to travel to
bring their sick to the hospitals and were violated by these ...
JUSTICE MAKASIAR
Q Compaero, your position is that history is replete with examples of
traitors and quislings from high society or high Government circles.
But the question is, while you affirm the fact that the communist is not
necessarily open or overt, he is usually engaged in covert

activities. Now what are the examples of these covert activities of


these people? What is your evidence?
SOLICITOR ABAD
A Well, I read from a very authoritative document of the Communist
Party of the Philippines
JUSTICE TEEHANKEE
Q That's begging the question?
JUSTICE MAKASIAR
Q And they deny The communist party they accept membership...
the Alyansa?
SOLICITOR ABAD
A Financial support, telling over the populace into supporting the
rebellion; driving them away from the Government: giving financial
support; harboring them in their homes. While these are not armed
assistance given to the rebel, if Your Honor please, but its the duty
also of the government to ...
JUSTICE MAKASIAR
Q ... the various dates of harboring them in their homes; the financial
contributions made by them on such and such a date, how much?
Those are the particulars to support the conclusion that they had
contributed, they were harboring them?
SOLICITOR ABAD
A Well, as I said we have the evidence, the only problem is we
are not prepared to produce now the evidence. 43-a
Indeed, in their Urgent Motion for Reconsideration of the Court's May 23rd release
order, respondents, "having obtained clearance for the declassification of the needed materials"
submitted their "evidence, " consisting of hearsay military reports (rather than the direct affidavits of
credible witnesses) and the affidavit of a discredited and perjured professional witness, an alleged
NPA, now a member of the Philippine Constabulary, supra. 43-b No concrete evidence whatever has
been submitted therein against petitioners-lawyers, other than to recklessly red brush their legitimate
organization (BAYAN-Mindanao) as communist-led or infiltrated front organizations and to characterize
the series of welgas or strikes in Mindanao as implementation of the NDF program of activities to
organize and mobilize the "middle forces" of society, supra. 43-c
8. Basic concepts and principles of freedom-The PBM case, citing numerous precedents, restated
basic concepts and principles which, to my mind, underlie and are determinative of the issues at bar,
as follows:

(1) In a democracy, the preservation and enhancement of the dignity and worth of
the human personality is the central core as well as the cardinal article of faith of our
civilization. The inviolable character of man as an individual must be 'protected to the
largest possible extent in his thoughts and in his beliefs as the citadel of his person. 44
(2) The Bill of Rights is designed to preserve the Ideals of liberty, equality and security
'against the assaults of opportunism, the expediency of the passing hour, the erosion of
small encroachments, and the scorn and derision of those who have no patience with
general principles. 45
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is
to withdraw 'certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials, and to establish them as legal principles
to be applied by the courts. One's rights to life, liberty and property, to free speech, or
free press, freedom of worship and assembly, and other fundamental rights may not be
submitted to a vote; they depend on the outcome of no elections. 46 Laski proclaimed that
'the happiness of the individual not the well-being of the State, was the criterion on by
which its behaviour was to be judged. His interests, not its power, set the limits to the
authority it was entitled to exercise. 47
(3) The freedoms of expression and of assembly as well as the right to petition are
included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the Ideas that we abhor or hate more than the
Ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to
talk, but also to benefit the majority who refuse to listen. 48 And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are
not safe unless the liberties of all are protected. 49
(4) The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to his full
and complete fulfillment. Thru these freedoms the citizens can participate not merely in
the periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The
citizen is accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights
over property rights is recognized. 50 Because these freedoms are 'delicate and
vulnerable, as well as supremely precious in our society' and the 'threat of sanctions may
deter their exercise almost as potently as the actual application of sanctions,' they 'need
breathing space to survive,' permitting government regulation only 'with narrow
specificity. 51
Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill of
Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, of the influential and
powerful and of oligarchs political economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy
a preferred position as they are essential to the preservation and vitality of our civil
and political institutions; 52and such priority 'gives these liberties a sanctity and a
sanction not permitting dubious intrusions. 53

xxx xxx xxx

In seeking sanctuary behind their freedom of expression as well as their right of


assembly and of petition against alleged persecution of local officialdom, the
employees and laborers of herein private respondent firm were fighting for their very
survival, utilizing only the weapons afforded them, by the Constitution-the
untrammelled enjoyment of their basic human rights. ... Material loss can be repaired
or adequately compensated. The debasement of the human being-broken in morale
and brutalized in spirit-can never be fully evaluated in monetary terms. The wounds
fester and the scars remain to humiliate him to his dying day, even as he cries in
anguish for retribution, denial of which is like rubbing salt on bruised tissues. 54
9. The express teaching of the Salonga case.The express teaching on freedom of expression,
based on numerous precedents, of this Court's unanimous decision (11 members with 3 abstentions)
in the case of Salonga vs. Pao 55 should dispel the apparent misconception on the part of the military,
us well as certain government prosecutors, that militant protests and demonstrations are seditious and
subversive of the government. This Court set forth therein guiding and controlling constitutional principles
and precepts governing constitutionally protected spheres and areas reserved by the Bill of Rights for the
individual "where even the awesome powers of government may not enter at will," as follows: "... if there
is any principle of the Constitution that more imperatively calls for attachment than any other, it is the
principle of free thought-not free thought for those who agree with us but freedom for the thought that we
hate;" that "freedom of expression is a 'preferred' right and therefore stands on a higher level than
substantive economic or other liberties;" that "this must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly
every other form of freedom. Protection is especially mandated for political discussions. This Court is
particularly concerned when allegations are made that restraints have been imposed upon mere criticisms
of government and public officials. Political discussion is essential to the ascertainment of political truth. It
cannot be the basis of criminal indictments;" that there must be tolerance of political hyperbole since
"debate on public issues should be uninhibited, robust and wide open and it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public officials;" that "the
constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action;" that "political discussion
even among those opposed to the present administration is within the protective clause of freedom of
speech and expression. The same cannot be construed as subversive activities per se or as evidence of
membership in a subversive organization" in the absence of proof that "such discussion was in
furtherance of any plan to overthrow the government through illegal means, " and that "the judge or fiscal,
therefore, should not go on with the prosecution in the hope that some credible evidence might later turn
up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold.
It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional
rights. So it has been before. It should continue to be so."
10. Peaceful and violent welgas.The military and the police but adhere to the aforecited basic
democratic concepts and principles and recognize the people's constitutional right of assembly,
protest and petition for redress of grievances and accordingly exercise forbearance and
understanding, then the welgas will not and cannot erupt in violence. As emphasized in the PBM
case, there is no time limit in the exercise of these basic freedoms of free expression, peaceable
assembly and petition for redress of grievances. The right to enjoy them is not exhausted "by . . . .
the staging of one demonstration." It is a continuing immunity, to be exercised whenever there are
errors to be rectified, abuses to be denounced, inhumanities to be condemned. This is borne out by
the numerous demonstrations, rallies and welgas in Manila, Bataan and many other provinces.
The Welgang bayan in Bataan against, the nuclear plant which paralyzed the whole of the province
for three days last June were carried out peacefully without any violence, despite certain critical
moments when the provincial commander ordered his forces to advance thru a blockade manned by

some 4,000 people. He later withdrew his orders after a dialogue with the protestors. The behaviour
of both the military and the demonstrators merited commendations from all sectors. The President
himself was quoted as saying that "the official policy of maximum tolerance in dealing with mass
demonstrations paid off during the welgang Bayan in Bataan." 56
In this case, the May 2-3, 1985 welgang bayan which incurred the ire and displeasure of the military
was carried out without any ugly incidents. But the aggressiveness and intolerance of the military
and CHDF forces inEscalante, Negros Occidental turned the welgang bayan there into a bloodbath
last September 20th. Some thirty demonstrators, including women, were reported killed when
government troops who were supposed to keep order during the rally opened fire at the massed
crowd when some troublemakers reportedly tried to snatch their firearms. As observed in one
editorial, "once government soldiers or police open fire on a rally crowd, the result would be a virtual
massacre for the enforcers are better armed." 57 "Indeed, the use of combat-ready and trigger-happy
troops trained only to shoot-to-kill without any training in crowd control of demonstrators or rallyists should
be restudied. As stated in my separate opinion in Hildawa vs. Minister of Defense. 58 "The Supreme Court
stands as the guarantor of the constitutional and human rights of all persons within its jurisdiction and
cannot abdicate its basic role under the Constitution that these rights be respected and enforced. The
spirit and letter of the Constitution negates as contrary to the basic precepts of human rights and freedom
that a person's life be snuffed on out without due process in a split second even if he is caught in
flagrante delicto-unless it was called for as an act of self-defense by the law agents using reasonable
means to prevent or repel an unlawful aggression on the part of the deceased."
11. The Stale PDA.-Iwill not deal here with the serious question raised by petitioners as to the
validity of the PDA issued by the President under date of January 25, 1985 for the arrest and
detention of the three petitioners-lawyers for having "committed subversion and/or acts inimical to
public safety, national security and public order." This question is better resolved in the separate
case filed by the Integrated Bar of the Philippines for the declaration of unconstitutionality of the
Presidential Decrees authorizing, among others, the issuance by the President of PDA's without the
constitutional requirement that any officer issuing a warrant of arrest must personally examine the
complainant and the witnesses he may present. 59 Suffice it to state that the PDA against petitioners
was already inoperative and stale. It was issued on January 25, 1985. As respondent general himself
states in the return, the military did not see any need to enforce it until after almost four months later on
May 10 to 13 of this year. What is incomprehensible is that no copy certified or plain of the PDA could be
shown to the petitioners upon their arrest, contrary to existing rules and instructions. A xerox copy of the
PDA was first seen by them only with the filing of the respondents' return, in this case on last May 23rd.
Be that as it may, the PDA should be held to be inoperative and ineffectual. The facts and records as
hereinabove stated patently show that the President was misled into precipitately issuing the same:
A. By the President's own statement, he had declared that "he would issue the controversial
Preventive Detention Action (PDA) orders only when national security would require it and that there
is no present need for him to do it." 60 The PDA was issued on January 25, 1985. Under the
implementing rules, it should have been served within forty-eight (48) hours since it covered persons
outside Metro Manila (in Metro Manila, the prescribed period of service is twenty-four [24] hours). The
respondent general's own admission that there was no need to serve it until after almost four months later
shows that there was no necessity for the peremptory issuance of the PDA last January 25th.
B. The issuance of the PDA against the three petitioners lawyers clearly do not fall within the two
exceptions to the general rule provided in section I of P.D. 1877, as amended, that all cases
involving national security offenses "shall be referred to the provincial or city fiscal or to the proper
court for preliminary examination or investigation in accordance with existing laws. " The two
exceptions provided in section 2 of the said P.D. are as follows:

SEC. 2. Only upon proper warrant issued by the Court or other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and his witnesses, shall the person or persons charged with the abovementioned crimes be arrested and detained;Provided, however, that should a military
commander or the head of a law enforcement agency ascertain that the person or
persons to be arrested has/have committed, is/are actually committing, or is/are
about to commit the above-mentioned crimes, or would probably escape or commit
further acts which would endanger public order and safety as well as the stability of
the state before proper warrant could be obtained, the said military commander or
the head of law enforcement agency may apply to the President of the Philippines for
a preventive detention action against the person or persons ascertained to be
participants in the commission of the crimes referred to in Section I hereof, under the
following circumstances:
(a) When resort to judicial processes is not possible or expedient without
endangering public order and safety;
(b) When in the judgement of the President of the Philippines to apply for a judicial
warrant may prejudice peace and order and the safety of the state like when it may
jeopardize the continued covert intelligence counter insurgency operations of the
Government, or endanger the lives of intelligence and undercover agents whose
Identities would be revealed by the evidence against the person or persons covered
by a preventive detention action.
There is no question here of judicial process not being possible or expedient. It is obvious from the
facts of record that it would be absurd to say that the. PDA could fall under the second exception that
to apply for a judicial warrant would prejudice public order and the safety of the state. The mere gap
of almost four months between its issuance on January 25th and its actual service on May 10-12 this
year speaks for itself Furthermore, as succinctly stated by petitioners in their verified traverse, "(A)s
members of this Court pointed out in the hearing of May 23, 1985, the alleged PDA was issued as
early as January 25, 1985. Petitioners were not hiding. They were regularly discharging their
functions as lawyers, including visiting their clients in military camps. There was more than ample
time from the issuance of the alleged PDA up to the time when petitioners were actually arrested and
detained for respondents to place them under close surveillance so that concrete, credible evidence
of their supposed criminal activities and connection might be established 'to catch them with the
goods' so to speak. With the manpower and the resources at the command of respondents, they
have failed to produce that evidence." 61
Indeed, as the ponente, Mme. Justice Herrera, notes in her additional opinion, which failed to gain
the majority's concurrence, "it is my view that individuals against whom PDAs have been issued
should be furnished with the original or the duplicate original or a certified true copy issued by the
official having official custody of the PDA, at the time of apprehension. Pursuant to the Rules and
Regulations Implementing Presidential Decree No. 1877, as amended by Presidential Decree No.
1877-A, the PDAs should also be enforced within 24 hours in the Metro Manila area or within 48
hours outside Metro Manila, upon receipt by the unit concerned. In this case, although the record
does not show such date of receipt, the fact is that the PDA was issued on January 25, 1985 but the
detained attorneys were arrested only on May 10 and 13, 1985, respectively. The four-month gap
can give room for doubt as to its authenticity and whether, in fact, the detained attorneys posed 'any
appreciable danger to national security and public order.' " (Italics supplied)
12. Civilian Supremacy.Art II, section 8 of our Constitution's Declaration of Principles and State
Policies states that "Civilian authority is at all times supreme over the military. " But the military here

dragged its feet and refused to honor this Court's "immediately executory" release order of May
23rd. Without waiting for the resolution of its motion for reconsideration of the Court's release order,
respondent general, who had secured the PDA, then filed the new charge of rebellion against
petitioners and with the deplorable acquiescence of the city fiscal and the trial judge, the former filed
the instant information for the capital crime of rebellion and the latter in tum issued the warrant of
arrest without bail. Respondent general was quoted as saying that "The Supreme Court won in only
one point. And that is, we had to file the the charges much sooner" 62 as if this Court were an adverse
protagonist instead of the final arbiter and the third department of government vested by the Constitution
with the judicial power to determine and adjudicate all justiciable disputes. The same general is quoted as
replying in a letter of April 1, 1985 to Atty. Jesus G. Dureza, IBP Davao chapter (who was asking why
detainees continue to languish in jail despite court decisions either releasing or acquitting them) that "To
begin with, I believe it may be necessary to review our position on these cases (human rights cases). I
express this need because, despite recent court decisions otherwise, I am morally convinced that some
released suspected communist subversives are guilty." 63 This Court's decisions and orders form part of
the law of the land It is a sad day for civilian supremacy when the military do not feel bound by the verdict
of the courts and would place themselves above the courts and require as a condition for executing its
judgment that they be "morally convinced" by the judgment rendered.
To allow such usurpation and denigration of the Court's power of judicial review is to subvert, if not
destroy, the Constitution and the Rule of Law. The survival of a democratic society rests on the Rule
of Law, which depends on the existence of an independent judiciary.
In endorse and reproduce herein the impassioned appeal made by then Justice Makasiar in his
address in 1980 before the Philconsa against the proposed return of the supervision of lower courts
from the Supreme Court to the Ministry of Justice, supra, 64 as follows:
On the rule of law rests the survival of a democratic state. But the rule of law
depends on the existence of an independent judiciary. 'Those who (make the
proposal), I hope, realize that the ill-effects of such a proposal will reach them and
their children. Even at this late stage in our lives when we are about to fade from the
scene, we cannot evade the tragic consequences of such a proposal; but those who
will suffer more would be the succeeding generations-including the children of those
proposing the subtle destruction of the foundations of the judicial system.
In the evening of our lives, let us not emasculate one branch of the government that
is the last sanctuary of our lives and our liberties-the judiciary. As an enduring legacy
to the generations that will come after us, let us all continue to strengthen the
Supreme Court and the entire judicial system.
The contemporary scene demonstrates once again that injustice breeds dissidence
which seethes and finally explodes into a violent and bloody revolution. To all human
beings, the denial of justice is a mortal assault on life itself. Where the human spirit is
brutalized by abuses and inequities, the ultimate hope for liberation lies in the force
of arms unless the courts can effectively enforce the rule of law.
Our historical experience delineated the varied seeds of armed rebellion or
insurrection with which all of you are familiar. The ruthless exploitation of peasants
and laborers, the lust for and arrogance of power, unabated corruption, unequal
application of the law. the prostitution of elections, despoliation of the national
patrimony by a a favored few, as well as the monopoly and manipulation of the
supply and distribution of economic goods essential to man's existence-all constitute
the many facets of injustice that provide the dynamics of open defiance of the status
quo.

The warning has been issued that a tyrant, who wants complete and absolute control
over the people, will first seduce and eliminate the lawyers and thereafter destroy the
courts. This tragedy must be averted.
To support any proposal that erodes the independence of the courts, abets
subversion of the rule of law, undermines the stability of our democratic institutions,
imperils the liberties of the individual, or gives aid and comfort to the enemies of the
people-is akin to committing treason against the nation. " (Italics supplied)
13. The Supreme Court as guardian and final arbiter of the Constitution.The judiciary, as headed
by the Supreme Court has neither the power of the sword nor the purse. Yet as the third great
department of government, it is entrusted by the Constitution with the judicial power-the awesome
power and task of determining disputes between litigants involving life, liberty and fortune and
protecting the citizen against arbitrary or oppressive action of the State. The Supreme Court and all
inferior courts are called upon by the Constitution "to protect the citizen against violation of his
constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary
[assisted by the bar] stands between the citizen and the State as a bulwark against executive
excesses and misuse or abuse of power by the executive as also transgression of its constitutional
limitations by the legislature." 65
The Constitution is basically a charter of limitations of governmental power and enshrines a system
of separation of powers and checks and balances under which no man is the law nor above the law.
It ordains the weakest department, the Supreme Court, as the guardian and final arbiter of the
Constitution. It postulates and requires a free and independent judiciary, sworn to defend and
enforce the Constitution and the law without fear or favor. It mandates that civilian authority is at all
times supreme over the military. Like His Holiness, the Pope, the Supreme Court has no battalions,
tanks or guns to enforce its decisions. Its strength lies in that its verdicts would be obeyed by the
sheer moral force and truth of its judgments for as long as the Court kept the faith and confidence
reposed in it by the people through the Constitution to render justice and sustained their moral
conviction that through the Supreme Court, justice and the voice of reason and truth would prevail in
the end. Under the Rule of Law, "Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines " (Art. 8, Civil Code) and the
Excutive and all its offices and agencies. and particularly the military, are called upon to execute the
laws as so interpreted and adjudged by the courts and enforce obedience thereto. 65-a
As restated by the late Justice Jose P. Laurel in the 1936 landmark case of Angara us. Electoral
Commission, 66"The Constitution sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers would be mere verbiage, the
bill of rights mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should
be in any living Constitution." Justice Laurel pointed out that in contrast to the United States Constitution,
the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the
great burden of "determining the nature, scope and extent of such powers" and stressed that "when the
judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
department ...but only asserts the solemn and sacred obligation entrusted to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and guarantees to them."
Let all bear ever in mind that " (I)n a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. Our government is the potent, omnipresent
teacher. For good or ill, it teaches the whole people by example. Crime is contagious If the

Government becomes the lawbreaker it breeds contempt for the law it invites every man to become
a law unto himself, it invites anarchy. To declare that in the administration of the criminal law the end
justifies the means ... would bring terrible retribution. 67
14. Erroneous premises of the majority decision.
A. The majority decision holds that under section 4, Rule 102 the writ of habeas corpus has served
its purpose because of the judicial warrant of arrest issued by the Regional Trial Court. This is based
on an erroneous premise that the trial court had such jurisdiction to issue the warrant of arrest, and
that the denial of a preliminary investigation of petitioners-lawyers was a mere informality or defect.
As already emphasized hereinabove, the trial court was totally devoid and ousted of jurisdiction to
issue a warrant of arrest because of the gross denial to petitioners-lawyers of their constitutional
right to due process.
B. The majority decision holds that the filing of the information without preliminary investigation falls
within the exceptions of Rule 112, sec. 7 and Rule 113, sec. 5 of the 1985 Rules on Criminal
Procedure. 68 Again, this is erroneous premise. The fiscal misinvoked and misapplied the cited rules. The
petitioners are not persons "lawfully arrested without a warrant. " The fiscal could not rely on the stale and
inoperative PDA of January 25, 1985. Otherwise, the rules would be rendered nugatory, if all that was
needed was to get a PDA and then serve it at one's whim and caprice when the very issuance of the PDA
is premised on its imperative urgency and necessity as declared by the President himself. The majority
decision then relies on Rule 113, sec. 5 which authorizes arrests without warrant by a citizen or by a
police officer who witnessed the arrestee in flagrante delicto, viz, in the act of committing the
offense. Quite obviously, the arrest was not a citizen's arrest nor were they caught in flagrante
delicto violating the law. In fact, this Court in promulgating the 1985 Rules on Criminal Procedure have
tightened and made the rules more strict. Thus, the Rule now requires that an offense " has in fact just
been committed. " This connotes immediacy in point of time and excludes cases under the old rule where
an offense "has in fact been committed" no matter how long ago. Similarly, the arrestor must
have "personal knowledge of facts indicating that the arrestee has committed it" (instead of just
"reasonable ground to believe that the arrestee has committed it" under the old rule). Clearly, then, an
information could not just be filed against the petitioners without due process and preliminary
investigation.
C. The majority decision's rationale that the Nolasco case invoked by petitioners is not applicable
here since the trial court had granted bail to Nolasco for a number of non-capital offenses, whereas
in this case petitioners are charged with the capital offense of rebellion and the trial court has not
allowed bail. This is erroneously premised. As already emphasized above, the instant information for
rebellion against petitioners is null and void for denial of due process. What remains is the PDA, just
like in the Nolasco case. There, the trial court granted bail. Here, it is this Court that has granted bail
in the form of its May 23rd "immediately executory" release order. It certainly would be judicial
anathema that this Court ordered compliance with the bail order of the trial court in the Nolascocase
and yet feel impotent to enforce its own "immediately executory" release order of the petitionerslawyers upon their counsel's recognizance. More so, when the petitioners are members of the
Philippine Bar and officers of this Court.
The irony of the situation can be thus depicted. Had this Court simply ordered the immediate
enforcement without delay of its May 23rd order, by May 24th, the petitioners would have not been
under detention. There would beno basis to claim that they were "lawfully arrested without warrant"
and therefore could be instantly charged for the most heinous crimes without preliminary
investigation.
D. As stressed by the writer in German vs. Barangan, 69 "to require the citizen at every step to assert
his rights and to go to court is to render illusory his rights. " Here, the flaunting and disregard of the

Court's immediately executory May 23rd release order by not releasing the petitioners-lawyers so that it
could be claimed that they fell under Rule 112, section 7 and considered as "lawfully arrested without
warrant" wherein "the information may be filed by the ... fiscal without preliminary investigation having
been first conducted, on the basis of the affidavit of the offended party or arresting officer or person"
(which affidavit had long been executed since January, 1985 while the unlawful arrests were made on
May 10-13 and in no way could be termed as in flagrante delicto would render illusory petitioners' right to
due process and preliminary investigation. The majority decision should properly apply the case
of Abejuela cited by
it 70 that the trial court is called upon "not to dismiss the information but hold the case in abeyance and
conduct its own investigation or require the fiscal to hold a reinvestigation. " Meanwhile, this Court's
release order should be complied with without one moment's delay. Respondents' filing two days later on
May 25th of an "urgent motion for reconsideration" could in no way cause or justify suspension or noncompliance with this Court's release order.

15. Same standard in Galman case of not jeopardizing accused's constitutional rights should be
applied. In the recent case of Galman vs. Pamaran, the majority held that "the only way to cure the
law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in 'fact been
offered [by the prosecution] ... (hence) the testimonies compelled thereby are deemed immunized
under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be
made to depend on a claim of the privilege against self- incrimination which the same law practically
strips away from the witness." The same standard and concern of not placing the accused "in
jeopardy of their constitutional rights" through denial of due process and their right to preliminary
investigation should be applied here. The only way is to construe it in the manner as if this Court's
release order had in fact been immediately complied with and petitioners could in no way be deemed
as "lawfully arrested without warrant." Otherwise, the Rule on preliminary investigation would not be
"cured of its unconstitutional effects" by allowing the railroading on May 27th of the instant
information for rebellion without preliminary investigation thru respondent general's contumacious
and unlawful act of disobeying the Court's May 23rd release order. This was the same standard that
would have been applied in the Court's aborted decision inEastern Broadcasting Corp. (DYRE) vs.
Hon. Dans, Jr. 71 There, this Court brushed aside respondents' procedural arguments to dismiss the
petition as "moot and academic" because of the non-renewal of the petitioner's radio broadcasting
station's license from the time of its summary closure in 1980 up to the time of the Court's determination
in July this year. Instead, as noted in the writer's separate opinion therein, this Court "serve(d) notice that
in the exercise of the judicial power vested in it by the Constitution, it will issue the equitable writs of
certiorari and mandamus to do substantial justice and restore the status quo. In this case, the summary
closure of petitioner's radio station in 1980 having been declared null and void and no valid ground for
non-renewal of its license having been shown, it is as if the said license has been duly extended up to the
end of the current term or year. It is expected that respondents will forthwith return the crystal of the
transmitter and place no further obstacle to the prompt reopening of the radio station so that petitioner
may pick up the broken pieces and rightfully resume its operations (after almost five years of closure) in
accordance with the judgment at bar." Applying this standard to the case at bar, would simply mean that
the clock would simply be turned back to the day of this Court's immediately executory release order of
May 23rd this year, as if the same order had been faithfully and lawfully complied with. Only thus could
substantial and not paper justice be done and the petitioners be not deprived of their constitutional right to
due process and be secured by preliminary investigation against hasty, oppressive and vindictive
prosecution.
16. "The preservation of freedom, like its perfection is a never ending struggle."This was the
exhortation of President Ferdinand Edralin Marcos at the observance at Fort Bonifacio last May 27th
of American Memorial Day. He admonished the people that "democracy is a condition requiring
constant vigilance. Neither totalitarianism nor authoritarianism can by themselves triumph over the
democratic Ideal. But when free men shirk from their duties to society, as well as to themselves, they
imperil their own liberty. When the citizens of a democracy allow themselves to be lulled into

indifference, they seal their own doom. ... If we are to remain free at all, we must show ourselves to
be capable and willing to fight in defense of our way of life. " 72
17. Former Chief Justice Roberto Concepcion, who with IBP President Emeritus J.B.L. Reyes, has
shunned their well-earned rest and in their eighties continue at the forefront of upholding the cause
of freedom and human rights and rendering free legal aid to the poor, disadvantaged and oppressed,
made this plea for the cause of the independence of the judiciary at the hall of the Court which he
once presided with honor, dignity and integrity. "During the 85 years of this century, there has never
been a case as transcendental as this one. We have tried and bolstered to be a democratic society
which is based and predicated upon freedom of speech. But to bolster up the freedom of speech,
we've established the right of every person accused and even detained to counsel. Now, any (act)
tending to impair the disposition of lawyers to represent the accused, is derogatory to the democratic
system, and therefore, derogatory to human rights. It is significant that at first only, I would say, only
persons suspected of being subversives were being arrested and later on salvaged. I don't know
how the word salvage happened to be used, because salvage from what ...Then even the priests, ...
we have started from the North to the Southernmost part of the Philippines, from Abra to Davao, with
lawyers. The only step higher than that echelon is the Judiciary. So it's not only the lawyers that are
being involved in this case, it is the Judiciary, the independence of the
Judiciary." 73
His Holiness Pope John Paul II in his address of February 17, 1981 to the President and the Nation
during his Philippine visit stressed that " Even in exceptional situations that may at times arise, one
can never justify any violation of the fundamental dignity of the human person or of the basic rights
that safeguard this dignity Legitimate concern for the security of a nation, as demanded by the
common good, could lead to the temptation of subjugating to the State the human being and his or
her dignity and rights. Any apparent conflict between the exigencies of security and of the citizens'
basic rights must be resolved according to the fundamental principle upheld always by the Church
that social organization exists only for the service of man and for the protection of his dignity, and
that it cannot claim to serve the common good when human rights are not safeguarded."
17. Petitioners'appeal for liberty should be heeded.-Petitioner Ilagan concisely stated at the May
23rd hearing that his objective as BAYAN s chairman is To achieve reforms in the government by
voicing our grievances. " 74 In an open letter to his colleagues of the Integrated Bar, after expressing ,
'grateful appreciation for the generous assistance, both financial and moral, which I and my family
received . . . . (and) welcomed . . . . for reasons of necessity" (which hardliners would c nsider as a
criminal act of the sympathizers and "assisting and aiding the enemy"), petitioner Ilagan makes this
poignant appeal:
... What we are here for may not be your concern, but that we are here without due
process of law should interest you all if you are true to your calling. We lawyers are
adept at defending persons and interests in all the courts and forums of the land. We,
particularly should be the first concerned at defending our own. But, by all
means, we deserve that sacred right to do so on legitimate, fair and equitable terms.
Never mind that our families have to subsist on the meager earnings of our working
wines, but foremost in our welfare is the right to be free, not only to prepare for our
defense adequately but to give essence to that constitutional tenet that 'every person
is presumed innocent until proven otherwise.' We cannot lay claim of a democratic
society if we, lawyers, not only tolerate a lopsided view of the rule of law but
ourselves fall prey to it.
That we are 'preventively detained' is pure euphemism. Deprived of liberty and
entirely curtailed in the exercise of our basic rights, we are, in every sense, prisoners

of the state. It is in this context that 1, on behalf of your three colleagues here, ask
your whole-hearted support in demanding justice for our cause. 75
Petitioners' eminent counsel make this stirring plea on their behalf:
Constitutional history in republican democratic states is the story of the progressive
triumph and expansion of human liberty as against the assertion of unrestrained
power by monarchs, tyrants and other instrumentalities in the political community.
Civilization under law has been marked by the departure from lese
majeste, the strengthening of legal institutions, especially the independent courts,
and the adoption of rules, substantive and procedural, so that freedom is the general
and normal state of the people. Although in exceptional cases, their individual
freedom could be restrained but only on serious grounds compatible with the
Constitution and always upon due process. This, at any rate, is a fundamental
principle of English and American constitutional law whence our own constitutional
system has been derived.
In the words of Justice Jugo Black
. . . . From the popular hatred and abhorrence of illegal confinement, torture and
extortion of confessions of violations of 'the law of the land' evolved the fundamental
Idea that no man's life liberty or property be forfeited as criminal punishment for
violation of that law until there had been a charge fairly made and fairly tried in public
tribunal free of prejudice, passion excitement and tyrannical power. Thus, as an
assurance against ancient evils, our country, in order to preserve 'the blessings of
liberty,' wrote into its basic law the requirement, among others, that the forfeiture of
life, liberty or property of people accused of crime can only follow if procedural
safeguards of due process have been obeyed.
The determination to preserve the accused's right to procedural due process sprang
in large part from knowledge of historical truth that the rights and liberties of the
people accused of crime could not safely be entrusted to secret inquisitorial
processes. Chambers v. Florida, 309 U.S. 227.
In this jurisdiction, these rules are enshrined in the Bill of Rights in the Constitution
and reenforced by statutes and the Rules of Court.
xxx xxx xxx
If a person is unlawfully deprived of his liberty, he can avail himself of the great writ of
liberty, the privilege of the writ of habeas corpus for the purpose of regaining freedom
in the shortest time possible.
In its early years of practice, the privilege of the writ of habeas corpus was a puny
and unavailing remedy as against the king. For judges were under the influence of
the crown and refused to issue the writ for people who were detained on suspicion of
disloyalty to the former but against whom there was no concrete evidence, and the
people continued "to languish in extended detention. To remedy this evil, the Habeas
Corpus Act was adopted in 1679. Ex Parte Watkins, 7 L. Ed. 193, 201; Ex Parte
Yerger, 8 Wall. 85: MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND
314-315.

Since then, the privilege of the writ of habeas corpus has become the fundamental
instrument against arbitrary and lawless state action. .
The suspension of the privilege of the writ of habeas corpus carries with it the
derogation of the people's freedoms and liberties. Therefore, the provisions must be
strictly construed and cannot be allowed to extend to situations not explicitly allowed
by the Constitution.
Obliquely and subliminally respondents suggest to this Court to go back in history
and to dismantlethe intricate system of reenforcing rules, principles and procedures
that have developed through centuries of struggle for the more efficacious protection
of individual liberty. They seek a return to thelese majeste when the voice of the King
was the voice of God so that those who are touched by hisabsolute powers could
only pray that the King acted prudently and wisely. Similarly respondents would have
this Court and the people accept the proposition that the State's designation of
persons as rebels and subversives without more is adequate basis for their
immediate and indefinite detention. And that regardless of the quality or absence of
evidence, the courts are powerless to intervene in behalf of the persons so
designated.
The Rule of Law and constitutionalism mean precisely the existence and the efficacy
of legal institutions to protect and defend the rights and liberties of the people so they
no longer have todepend upon prayers for the purpose.
Petitioners invoke the power of this Court to uphold the Constitution and to protect
the rights of the people and to reject the basically undemocratic
proposition suggested by respondents. 76
I submit that the Court should heed petitioners' appeal for liberty. An editorial after the Court's
stillborn May 23rd Resolution graphically articulates the compelling reasons for granting their plea for
liberty:
The government is not only the Chief Executive and the Batasang Pambansa. It
necessarily includes the Supreme Court and the other courts. And time and again it
has been shown that the performance of the judiciary affects the complexion of the
two other branches.
The en banc resolution of the Supreme Court ordering the release from confinement
of the three Davao lawyers who have acted as defense counsel in national security
cases illustrates the point.
The resolution shows the power of the judicial review and affirms the supremacy of
the Constitution.
It shows the independence of the judiciary and allays the fear of the opposition that,
the judiciary is an instrument of the Chief Executive.
xxx xxx xxx

Where the Constitution of the democracy is not supreme, the Supreme Court
weakens as the Chief Executive becomes stronger. Where that situation obtains, the
people no longer trust the courts nor the Constitution.
In the democracies, the judiciary is usually the 'weakest' of the branches. But here
and at this time, the exclusion of the judiciary from an analysis of the kind of
government that obtains would make a big difference.
A government without an independent Supreme Court would be like an automobile
without brakes. 77
I vote to grant the petition for habeas corpus and to set the petitioners immediately at liberty.
Petitioners must be granted their constitutional right to due process and the right to preliminary
investigation, as granted by statute and expressly assured to them by respondents in open court at
the May 23rd hearing. The railroaded ex-parteproceedings and orders in the instant rebellion case
should be declared null and void for lack of jurisdiction in having deprived petitioners of their sacred
constitutional right to due process.
CONCEPCION, JR., J., dissenting:
1. I dissent. The petition is not moot and academic.
2. Petitioners should be set free immediately because they were arrested unlawfully, and the
information filed against them dismissed for being null and void. However, the authorities may, if they
choose to do so, file a case against petitioners in the Fiscal's Office of Davao. The fiscal should
conduct a preliminary investigation as required by law. If he finds the existence of a prima facie case,
then he should file the necessary information in court. After the court issues a warrant of arrest
against petitioners, only then may they be placed in custody.
3. Petitioners have a right to a preliminary investigation, and infringement of this right is a denial of
due process.
4. The instances when a person may be arrested without a warrant are clearly laid down by Rule 113
of the 1985 Rules on Criminal Procedure as follows:
SEC. 5. Arrest without warrant when lawful.-A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 1 1 2, Section 7. (6a, 17a). "
5. From the facts brought out by the pleadings and at the hearing, petitioners' arrest does not fall
under any of the instances enumerated above. Their arrest without a warrant is therefore patently
and undeniably illegal and contrary to law.
6. Just as a spring polluted at its source cannot produce a flow of clean water, the unlawful arrest of
petitioners cannot give rise to a valid information. The information filed in court against them
necessarily is and must remain null and void.
7. In Morales, 1 this Court cautioned against arrests without warrant in this wise:
14. Care should be exercised in making an arrest without a warrant. Where there is
no justification for the arrest, the public officer could be criminally liable for arbitrary
detention or unlawful arrest or for some other offense."
8. It is the responsibility of the judiciary to define and maintain the delicate balance between
individual freedom and the security of the State. In the fulfillment of this mission, the active
participation and assistance of dedicated human rights lawyers are indispensable. They sacrifice
time and effort, and take grave risks to defend the rights of their clients. I salute them and say, "May
their tribe increase."
9. At a time when the Armed Forces of the Philippines has to play a salient role in our affairs of
government in view of the existence of a rebellion in our midst, there is all the more a greater need
for lawyers to defend the rights of individuals against actual or possible abuses of agents of the
State.
10. We must strengthen and solidify the Rule of Law. It is the only way to the survival of democracy
in our land.
Patajo J., concur
ABAD SANTOS, J., dissenting :
It was Holmes who said that the life of the law has not been logic; it has been experience. Thus the
early Roman law was ritualistic and highly formal. Gradually, however, it evolved and form was
replaced by substance. The development of the law did not stop there. The Roman praetorian law
enlarged, supplemented and over-rode law which became narrow and rigid in scope. Finally,
common law produced equity jurisprudence. It is a formal set of legal and procedural rules and
doctrines to aid and even override common and statute law in order to protect rights and enforce
duties fixed by substantive law.
The majority opinion appeals to the mind for it appears to be logically constructed. It leans heavily on
the letter of the law. Upon the other hand the dissenting opinion of Justice Teehankee which is his
article of faith appeals both to the mind and the heart for it is based not only on law but on equity
also.
I believe that Justice Teehankee's opinion better serves the ends of justice and I gladly subscribe to
it. I also subscribe to Justice Concepcion's separate opinion

G.R. No. 118644 July 7, 1995


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

DAVIDE, JR., J.:


The high prerogative writ of habeas corpus, whose origin is lost in antiquity, 1 was devised and exists
as a speedy and effectual remedy to relieve persons from unlawful restraint and as the best and only
sufficient defense of personal freedom. 2 More specifically, its vital purposes are to obtain immediate relief
from illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver
them from unlawful custody. It is then essentially a writ of inquiry and is granted to test the right under
which a person is detained. 3
Under our Constitution, the privilege of the writ of habeas corpus cannot be suspended except in
cases of invasion or rebellion when the public safety requires it. 4 Pursuant to Section 1, Rule 102 of
the Rules of Court, it extends, except as otherwise provided by law, to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto. It is not available, however, under the instances enumerated in
Section 4 of the said Rule which reads:
Sec. 4. When writ not allowed or discharge authorized. If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction

appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule
be held to authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment under lawful
judgment.
In this petition for review, the petitioners want us to set aside and reverse the decision of 1 February
1995 of the Court of Appeals in CA-G.R. SP No. 36273, 5 a petition for habeas
corpus and certiorari with a prayer for a temporary restraining order, ordering the herein petitioners to
immediately release Lawrence A. Larkins from their custody and declaring moot the alternative relief
of certiorari.
The antecedent facts of the case as culled from the challenged decision and the pleadings of the
parties are neither complicated nor disputed.
On 16 September 1993, a warrant of arrest was issued by Judge Manuel Padolina of Branch 162 of
the Regional Trial Court (RTC) of Pasig, Metro Manila, against accused Lawrence Larkins in
Criminal Cases Nos. 101189-92 for violations of B.P. Blg. 22.
On 20 November 1994, a certain Desiree Alinea executed and filed before the National Bureau of
Investigation (NBI) a complaint-affidavit accusing Larkins of the crime of rape allegedly committed
against her on 19 November 1994 at 2:00 a.m. in Victoria Valley Subdivision, Valley Golf, Antipolo,
Rizal. 6
Acting on the basis of the complaint of Alinea, petitioners Special Investigators Flor L. Resurreccion
and Antonio M. Erum, Jr. proceeded to the office of Larkins in Makati, Metro Manila, on 21 November
1994 and arrested the latter, who was thereupon positively identified by Alinea as her rapist. 7 Larkins
was then detained at the Detention Cell of the NBI, Taft Avenue, Manila.
On 22 November 1994, Larkins posted his bail of P4,000.00 in Criminal Cases Nos. 101189-92.
Judge Padolina forthwith issued an order recalling and setting aside the warrant of arrest issued on
16 September 1993 and directing the Jail Warden of the NBI Detention Cell to release Larkins from
confinement "unless otherwise detained for some other cause."
Special Investigators Resurreccion and Erum refused to release Larkins because he was still
detained for another cause, specifically for the crime of rape for which he would be held for inquest.
On 23 November 1994, a complaint against Larkins for rape was executed by Alinea. 8 It contains a
certification by Assistant Provincial Prosecutor Ma. Paz Reyes Yson that it is "filed pursuant to Section 7,
Rule 112 of the 1985 Rules on Criminal Procedure, as amended, the accused not having opted to avail of
his right to preliminary investigation and not having executed a waiver pursuant to Article 125 of the
RPC. . . ." The complaint was filed with the RTC of Antipolo on 2 December 1994, docketed therein as
Criminal Case No. 94-11794, and assigned to Branch 71 of the court, presided by Judge Felix S.
Caballes.
On 2 December 1994, Larkins, through his counsel Mauricio C. Ulep, filed an Urgent Motion for
Bail 9 wherein he alleged, inter alia, that the evidence of guilt against him for rape is not strong, as he had
no carnal knowledge of the complainant and the medical report indicates that her hymen was neither

lacerated nor ruptured; that he is entitled as a matter of right to bail; and that he has no intention of going
out of the country or hiding away from the law.

On 6 December 1994, Larkins, through his new counsel, Atty. Theodore O. Te, filed in Criminal Case
No. 94-11794 an Urgent Omnibus Motion for the Dismissal of the Complaint and for Immediate
Release, 10 principally based on the alleged illegality of his warrantless arrest. This motion met vigorous
opposition from the private complainant.11
In the order of 5 January 1995, 12 the trial court denied the aforesaid motions, thus:
After a careful appreciation of the arguments of the prosecution and the defense, the
Court finds no legal or valid grounds to dismiss the complaint or release the accused,
or to grant him bail. The filing of this case against the accused, which is [a] very
serious offense, justifies the grant of the motion of the prosecution for the issuance of
a hold departure order.
WHEREFORE, the motions of the accused are hereby denied for lack of merit, and
as prayed for by the prosecution the Bureau of Immigration and Deportation is
hereby directed to include the name of the accused, Lawrence A. Larkins, in its hold
order departure list until further order from this Court.
Unable to accept the ruling, Larkins' common-law wife, Felicitas S. Cuyag, filed before the Court of
Appeals a petition for habeas corpus with certiorari. Impleaded as respondents were the herein
petitioners and Judge Felix S. Caballes.
Subsequently, the Court of Appeals issued a resolution 13 ordering the respondents therein to appear
and produce Lawrence A. Larkins before the court on 31 January 1995 at 10:30 a.m. and to show cause
why Larkins' liberty is being restrained.
On the said date, Special Investigators Resurreccion and Erum appeared and produced Larkins at
the hearing. Atty. Orlando Dizon of the NBI acted as their counsel. 14 The Office of the Solicitor General
representing the People of the Philippines made no appearance. 15 Neither did Judge Caballes, for he had
not received a copy of the resolution. On the other hand, the petitioner therein, Felicitas S. Cuyag,
appeared with her counsel, who manifested that should the court order the release of Larkins the
alternative prayer for certiorari would be deemed abandoned. 16
After hearing the arguments of the parties, the Court of Appeals rendered the challenged decision,
holding that:
From the arguments presented by the parties, we resolve to order the immediate
release of Larkins from his present confinement on the ground that the complaint
presented to the NBI by complainant Desiree Alinea on the basis of which Larkins
was detained without a warrant of arrest for rape did not meet the legal requirements
provided for in Rule 113 of the Rules of Court.
Furthermore, on the day the detention of Larkins commenced, i.e., immediately after
the NBI was served with the Order of the Pasig RTC for his release on bail in
connection with the BP 22 cases, no other criminal complaint or information had
been filed or pending in any court. It was only sometime between November 25,

1994 (when filing of the complaint was approved by the Rizal Provincial Prosecutor)
and November 29, 1994 (the date appearing on the Urgent Motion for Bail filed by
Larkins's former counsel, said Atty. Ulep) that the complaint for rape was filed with
the Antipolo RTC.
The petitioners insist that the respondent court erred in granting the petition for habeas
corpus because Larkins had already been charged with the crime of rape and the trial court had
denied his application for bail. They further claim that the warrantless arrest in this case is valid for it
was made under Section 5(b), Rule 113 of the Rules of Court.
On the other hand, the private respondent contends that habeas corpus is rendered unavailing not
by the mere filing of an information, but by the issuance of a warrant of arrest or warrant of
commitment, which are the only two processes recognized by law to justify deprivation of liberty, and
the order of Judge Caballes of 5 January 1995 denying the petition for bail does not qualify as such.
She asserts that the petitioners have miscomprehended Paredes vs. Sandiganbayan 17 because that
case did not rule that the writ is no longer available after an information (or criminal complaint for rape as
in this case) is filed against the person detained; what it stated is that the writ of habeas corpus will not
issue when the person alleged to be restrained of his liberty is in the custody of an officer under a process
issued by the court which has jurisdiction to do so. She submits that the controlling doctrine is that
enunciated in Ilagan vs. Ponce Enrile, 18 adverted to in Sanchez vs. Demetriou, 19 that "[t]he filing of
charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will
cure the defect of that detention or at least deny him the right to be released because of such defect."
We find for the petitioners.
But, before we take up the substantive merits of this petition, we shall first delve into the propriety of
the petition for habeas corpus and certiorari filed by private respondent Cuyag with the Court of
Appeals.
Concededly, the private respondent has the personality to institute on behalf of her common-law
spouse, Lawrence Larkins, the habeas corpus aspect of the petition, as she falls within the purview
of the term "some person" under Section 3, Rule 102 of the Rules of Court, which means any person
who has a legally justified interest in the freedom of the person whose liberty is restrained or who
shows some authorization to make the application. 20 She is not, however, the real party in interest in
the certiorari aspect of the petition. Only Larkins could institute a petition for certiorari to set aside the
order denying his motions for bail and for the dismissal of the complaint against him.
It does not, however, follow that if certiorari is available to Larkins, an application for a writ of habeas
corpus will absolutely be barred. While ordinarily, the writ of habeas corpus will not be granted when
there is an adequate remedy by writ of error or appeal or by writ of certiorari, it may, nevertheless, be
available in exceptional cases, for the writ should not be considered subservient to procedural
limitations which glorify form over substance. 21 It must be kept in mind that although the question most
often considered in both habeas corpus and certiorari proceedings is whether an inferior court has
exceeded its jurisdiction, the former involves a collateral attack on the judgment and "reaches the body
but not the record," while the latter assails directly the judgment and "reaches the record but not the
body." 22
And now on the merits of the petition.

The Court of Appeals granted the writ of habeas corpus because it found that the warrantless arrest
of Larkins for the crime of rape "did not meet the legal requirements provided for in Rule 113 of the
Rules of Court." It could have in mind Section 5 thereof on lawful warrantless arrest.
Even if the arrest of a person is illegal, supervening events may bar his release or discharge from
custody. What is to be inquired into is the legality of his detention as of, at the earliest, the filing of
the application for a writ ofhabeas corpus, for even if the detention is at its inception illegal, it may, by
reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be
no longer illegal at the time of the filing of the application. Among such supervening events is the
issuance of a judicial process preventing the discharge of the detained person. Thus, in Sayo
vs. Chief of Police of Manila, 23 this Court held:
[W]e hold that petitioners are being illegally restrained of their liberty, and their
release is hereby ordered unless they are now detained by virtue of a process issued
by a competent court of justice. (emphasis supplied)
Another is the filing of a complaint or information for the offense for which the accused is detained,
as in the instant case. By then, the restraint of liberty is already by virtue of the complaint or
information and, therefore, the writ of habeas corpus is no longer available. Section 4 of Rule 102
reads in part as follows: "Nor shall anything in this rule be held to authorize the discharge of a
person charged with . . . an offense in the Philippines."
Thus, in Matsura vs. Director of Prisons, 24 where petitioners Macario Herce and Celso Almadovar
claimed to have been illegally detained for more than one year without any complaint or information filed
against them, this Court denied the petition for a writ of habeas corpus, for at the time they filed the
petition they had already been charged with the crime of treason and confined by reason thereof. Harvey
vs. Defensor-Santiago 25 reiterates Matsura.
In Cruz vs. Montoya, 26 this Court dismissed the petition for habeas corpus for having become academic
because the information for estafa against the party whose liberty was allegedly illegally restrained had
already been filed and a warrant for his arrest had been issued, and whatever illegality might have
originally infected his detention had been cured.
In Umil vs. Ramos 27 this Court, applying the last sentence of Section 4 of Rule 102, held that the writ
of habeas corpusshould not be allowed after the party sought to be released had been charged before
any court. Thus:
It is to be noted that, in all the petitions here considered, criminal charges have been
filed in the proper courts against the petitioners. The rule is, that if a person alleged
to be restrained of his liberty is in the custody of an officer under process issued by a
court or judge, and that the court or judge had jurisdiction to issue the process or
make the order, or if such person is charged before any court, the writ of habeas
corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite
explicit in providing that:
Sec. 4. . . . Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines or of a person
suffering from imprisonment under lawful judgment. 28 (emphasis supplied)

It may also be said that by filing his motion for bail, Larkins admitted that he was under the custody
of the court and voluntarily submitted his person to its jurisdiction. In De Asis vs. Romero, 29 this Court
stated:
De Asis could have, right after his arrest, objected to the regularity of the issuance of
the warrant of arrest in question. Instead he not only filed a petition for bail with the
lower court, thereby accepting the court's jurisdiction over his person, but he also
pleaded, on arraignment, to the information filed against him. (emphasis supplied)
The filing of a petition or motion for bail in cases where no bail is recommended has the same legal
import and effect as the posting of bail in cases where bail is recommended. It is settled that the
giving or posting of bail by the accused is tantamount to submission of his person to the jurisdiction
of the court. In the case of Carrington vs.Peterson, 30 this Court declared:
When a defendant in a criminal case is brought before a competent court by virtue of
a warrant of arrest or otherwise, in order to avoid the submission of his body to the
jurisdiction of the court he must raise the question of the court's jurisdiction over his
person at the very earliest opportunity. If he gives bail, demurs to the complaint or
files any dilatory plea or pleads to the merits, he thereby gives the court jurisdiction
over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)
In United States vs. Grant, 31 this Court held:
Conceding again that the warrant issued in this case was void for the reason that no
probable cause was found by the court before issuing it, the defendant waived all his
rights to object to the same by appearing and giving bond.
While it may be true that on 6 December 1994, or four days after the filing of the Urgent Motion for
Bail, Larkins, thru a new counsel, filed an Urgent Omnibus Motion for Dismissal of the Complaint and
for Immediate Release based on the alleged illegality of his warrantless arrest, the said motion was
a mere afterthought which came too late in the day. By then, the trial court had firmly acquired
jurisdiction over his person.
Moreover, the trial court's order of 5 January 1995 denying the urgent motion for bail was an
unequivocal assertion of its authority to keep in custody the person of Larkins. This order comes
under the purview of the wordorder under the first sentence of Section 4 of Rule 102 reading: "If it
appears that the person alleged to be restrained of his liberty is in the custody of an officer . . .
by virtue of [an] order of a court of record, and that the court or judge had jurisdiction to . . . make
the order, the writ shall not be allowed. . . ."
The foregoing renders untenable the private respondent's claim that it is the rule in Ilagan
vs. Enrile 32 which must govern, that the writ may not be allowed only where the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by the court or judge, and that
there are only two recognized processes which justify deprivation of liberty, viz., (1) commitment order
and (2) warrant of arrest. The contention is not only a deliberate misreading of Section 4 of Rule 102
limiting its application to the first part of the first sentence and disregarding the rest, but is also an undue
and unwarranted restriction of the term process. A commitment order and a warrant of arrest are but
species of judicial process.

In Malaloan vs. Court of Appeals, 33 this Court stated:


Invariably a judicial process is defined as a writ, warrant, subpoena, or other formal
writing issued by authority of law; also, the means of accomplishing an end, including
judicial proceedings, or all writs, warrants, summonses and orders of courts of justice
or judicial officers. It is likewise held to include a writ, summons or order issued in a
judicial proceeding to acquire jurisdiction of a person or his property, to expedite the
cause or enforce the judgment, or a writ, warrant, mandate or other process issuing
from a court of justice.
In Macondray & Co., Inc. vs. Bernabe, 34 this Court quoted Corpus Juris' definition of the term "process,"
to wit:
As a legal term, process is a generic word of very comprehensive signification and
many meanings. In its broadest sense, it is equivalent to, or synonymous with
"proceedings" or procedure and embraces all the steps and proceedings in a cause
from its commencement to its conclusion. Sometimes the term is also broadly
defined as the means whereby a court compels a compliance with its demands. (50
C.J. 441)
We thus rule that the order of 5 January 1995 of the trial court also qualifies as a process within the
meaning of Section 4 of Rule 102.
Hence, even granting that Larkins was illegally arrested, still the petition for a writ of habeas
corpus will not prosper because his detention has become legal by virtue of the filing before the trial
court of the complaint against him and by the issuance of the 5 January 1995 order.
Even as we thus decide in favor of the petitioners, we are, nevertheless, disturbed by certain
incidents relative to the warrantless arrest of Larkins. Firstly, assuming that it was lawful, the facts
before us disclose that the arresting officers failed to strictly comply with (1) the last paragraph of
Section 5, Rule 113 of the Rules of Court requiring that the person lawfully arrested without a
warrant shall forthwith be delivered to the nearest police station or jail and shall be proceeded
against in accordance with Section 7, Rule 112; and (2) Article 125 of the Revised Penal Code, as
amended, providing that he be delivered to the proper judicial authorities within thirty-six hours, the
crime with which Larkins was charged being punishable by an afflictive penalty. Although the arrest
was made in Makati where there is a police station and a municipal (now city) jail, Larkins was
brought to the NBI Detention Cell at Taft Avenue, Manila, and though the complaint of the offended
party was executed on 23 November 1994, it was not until 2 December 1994 that the said complaint
was actually filed in court.
Unless satisfactorily explained, the non-compliance by the arresting officers with the said provisions
merits nothing but disapproval from the Court. In the performance of their duty and in their
commendable pursuit to stamp out crimes and bring criminals to the bar of justice, law enforcement
authorities should make no shortcuts, but must comply with all procedures to safeguard the
constitutional and statutory rights of accused persons. The rule of law must always be upheld. What
this Court said in Beltran vs. Garcia 35 needs to be repeated:
It certainly does not speak well of officialdom, whether civilian or military, if a person
deprived of his liberty had to go to court before his rights are respected. The good

name of the administration is jeopardized, without any fault on its part, by such
inefficiency or inattention to duty. Every precaution should be taken against its
repetition. Otherwise, the parties responsible for this state of affairs would justly lay
themselves open to the accusation that the greatest danger to constitutional rights
comes from public officials, men of zeal, concededly well-meaning, but without
sufficient understanding of the implication of the rule of law.
We also note that the trial court did not conduct a hearing of the urgent motion for bail, as required
under Section 5, Rule 114 of the Rules of Court. The grant or denial of bail must be based upon the
court's determination as to whether or not the evidence of guilt is strong. This discretion may only be
exercised after evidence is submitted at the hearing conducted for that
purpose. 36 The court's order granting or refusing bail must contain a summary of the evidence for the
prosecution followed by its conclusion whether or not the evidence of guilt is strong; otherwise, the order
would be defective and voidable. 37 In fact, even if the prosecutor refuses to adduce evidence in
opposition to the application to grant and fix bail, the court may ask the prosecution such questions as
would ascertain the strength of the State's evidence or judge the adequacy of the amount of bail. 38 It was
thus incumbent upon the trial court to receive the evidence for the prosecution on the urgent motion for
bail. For this procedural shortcoming, Larkins should also be partly blamed. He did not press for a hearing
after the scheduled hearing on 5 December 1994 was cancelled because, as he claimed, the presiding
Judge was out of the country. 39
WHEREFORE, the instant petition is GRANTED, and the decision of the Court of Appeals of 1
February 1995 in CA-G.R. SP No. 36273 is hereby SET ASIDE and ANNULLED.
No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

G.R. No. L-31018 June 29, 1973


LORENZO VELASCO AND SOCORRO J. VELASCO, petitioners,
vs.
HONORABLE COURT OF APPEALS and MAGDALENA ESTATE, INC., respondents.
Napoleon G. Rama for petitioners.

Dominador L. Reyes for private respondent.

CASTRO, J.:
This is a petition for certiorari and mandamus filed by Lorenzo Velasco and Socorro J. Velasco
(hereinafter referred to as the petitioners) against the resolution of the Court of Appeals dated June
28, 1969 in CA-G.R. 42376, which ordered the dismissal of the appeal interposed by the petitioners
from a decision of the Court of First Instance of Quezon City on the ground that they had failed
seasonably to file their printed record on appeal.
Under date of November 3, 1968, the Court of First Instance of Quezon City, after hearing on the
merits, rendered a decision in civil case 7761, dismissing the complaint filed by the petitioners
against the Magdalena Estate, Inc. (hereinafter referred to as the respondent) for the purpose of
compelling specific performance by the respondent of an alleged deed of sale of a parcel of
residential land in favor of the petitioners. The basis for the dismissal of the complaint was that the
alleged purchase and sale agreement "was not perfected".
On November 18, 1968, after the perfection of their appeal to the Court of Appeals, the petitioners
received a notice from the said court requiring them to file their printed record on appeal within sixty
(60) days from receipt of said notice. This 60-day term was to expire on January 17, 1969.
Allegedly under date of January 15, 1969, the petitioners allegedly sent to the Court of Appeals and
to counsel for the respondent, by registered mail allegedly deposited personally by its mailing clerk,
one Juanito D. Quiachon, at the Makati Post Office, a "Motion For Extension of Time To File Printed
Record on Appeal." The extension of time was sought on the ground "of mechanical failures of the
printing machines, and the voluminous printing jobs now pending with the Vera Printing Press. ..."
On February 10, 1969, the petitioners filed their printed record on appeal in the Court of Appeals.
Thereafter, the petitioners received from the respondent a motion filed on February 8, 1969 praying
for the dismissal of the appeal on the ground that the petitioners had failed to file their printed record
on appeal on time. Acting on the said motion to dismiss the appeal, the Court of Appeals, on
February 25, 1969, issued the following resolution:
Upon consideration of the motion of counsel for defendant-appellee praying on the
grounds therein stated that the appeal be dismissed in accordance with Rules of
Court, and of the opposition thereto filed by counsel for plaintiff-appellants, the Court
RESOLVED to DENY the said motion to dismiss.
Upon consideration of the registry-mailed motion of counsel for plaintiffs appellants
praying on the grounds therein stated for an extension of 30 days from January 15,
1969 within which to file the printed record on appeal, the Court RESOLVED to
GRANT the said motion and the printed record on appeal which has already been
filed is ADMITTED.
On March 11, 1969, the respondent prayed for a reconsideration of the above-mentioned resolution,
averring that the Court of Appeals had been misled bythe petitioners' "deceitful allegation that they
filed the printed record on appeal within the reglementary period," because according to a

certification issued by the postmaster of Makati, Rizal, the records of the said post office failed to
reveal that on January 15, 1969 the date when their motion for extension of time to file the printed
record on appeal was supposedly mailed by the petitioners there was any letter deposited there
by the petitioners' counsel. The petitioners opposed the motion for reconsideration. They submitted
to the appellate court the registry receipts (numbered 0215 and 0216), both stampled January 15,
1969, which were issued by the receiving clerk of the registry section of the Makati Post Office
covering the mails for the disputed motion for extension of time to file their printed record on appeal
and the affidavit of its mailing clerk Juanito D. Quiachon, to prove that their motion for extension was
timely filed and served on the Court of Appeals and the respondent, respectively. After several other
pleadings and manifestations were filed by the parties relative to the issue raised by the
respondent's above-mentioned motion for reconsideration, the Court of Appeals promulgated on
June 28, 1969, its questioned resolution, the dispositive portion of which reads as follows:
WHEREFORE, the motion for reconsideration filed on March 11, 1969 is granted and
appeal interposed by plaintiff-appellants from the judgment of the court below is
hereby dismissed for their failure to file their printed Record on Appeal within the
period authorized by this Court. Atty. Patrocino R. Corpuz [counsel of the petitioner]
is required to show cause within ten (10) days from notice why he should not be
suspended from the practice of his necessary investigation against Juanito D.
Quiachon of the Salonga, Ordoez, Yap, Sicat & Associates Law Office, Suite 319
337 Rufino Building, Ayala Avenue, Makati Post Office, to file the appropriate criminal
action against them as may be warranted in the premises, and to report to this Court
within thirty (30) days the action he has taken thereon.
The foregoing desposition was based on the following findings of the Court of Appeals:
An examination of the Rollo of this case, particularly the letter envelope on page 26
thereof, reveals that on January 15, 1969, plaintiffs supposedly mailed via registered
mail from the Post Office of Makati, Rizal their motion for extension of 30 days from
that date to file their printed Record on Appeal, under registered letter No. 0216.
However, in an official certification, the Postmaster of Makati states that the records
of his office disclose: (a) that there were no registered letters Nos. 0215 and 0216
from the Salonga, Ordoez, Yap, Sicat & Associates addressed to Atty. Abraham F.
Sarmiento, 202 Magdalena Building, Espaa Ext., Quezon City, and to the Court of
Appeals, Manila, respectively, that were posted in the Post Office of Makati, Rizal, on
January 15, 1969; (b) that there is a registered letter numbered 215 but that the
same was posted on January 3, 1969 by Enriqueta Amada of 7 Angel, Pasillo F-2,
Cartimar, Pasay City, as sender, and Giral Amasan of Barrio Cabuniga-an, Sto. Nio,
Samar, as addressee; and that there is also a registered letter numbered 216; but
that the same was likewise posted on January 3, 1969 with E.B.A. Construction of
1049 Belbar Building, Metropolitan, Pasong Tamo, Makati, as sender, and Pres. R.
Nakaya of the United Pacific Trading Co., Ltd., 79, 6 Chamo, Nakatu, Yokohari,
Japan, as addressee; (c) that on January 15, 1969, the registered letters posted at
the Makati Post Office were numbered consecutively from 1001-2225, inclusive, and
none of these letters was addressed to Atty. Abraham F. Sarmiento of to the Court of
Appeals; (d) that in Registry Bill Book No. 30 for Quezon City as well as that Manila,
corresponding to February 7, 1969, there are entries covering registered letters Nos.
0215 and 0216 for dispatch to Quezon City and Manila, respectively; however, such

registry book for February 7, 1969 shows no letters with such numbers posted on the
said date.
The Acting Postmaster of the Commercial Center Post Office of Makati, Rizal, further
certifies that "Registry Receipts Nos. 0215 and 0216 addressed to Atty. Abraham F.
Sarmiento of the Magdalena Estate, Quezon City and the Honorable Court of
Appeals, respectively, does not appear in our Registry Record Book which was
allegedly posted at this office on January 15, 1969."
From the foregoing, it is immediately apparent that the motion for extension of time to
file their Record on Appeal supposedly mailed by the plaintiffs on January 15, 1969
was not really mailed on that date but evidently on a date much later than January
15, 1969. This is further confirmed by the affidavit of Flaviano Malindog, a letter
carrier of the Makati Post Office, which defendant attached as Annex 1 to its
supplemental reply to plaintiffs' opposition to the motion for reconsideration. In his
said affidavit, Malindog swore among others:
'That on February 7, 1969, between 12:00 o'clock noon and 1:00
o'clock in the afternoon, JUANITO D. QUIACHON approached me at
the Makati Post Office and talked to me about certain letters which
his employer had asked him to mail and that I should help him do
something about the matter; but I asked him what they were all
about, and he told me that they were letters for the Court of Appeals
and for Atty. Abraham Sarmiento and that his purpose was to show
that they were posted on January 15, 1969; that I inquired further,
and he said that the letters were not so important and that his only
concern was to have them post maker January 15, 1969;
'That believing the word of JUANITO D. QUIACHON that the letters
were not really important I agreed to his request; whereupon, I got
two (2) registry receipts from an old registry receipt booklet which is
no longer being used and I numbered them 0215 for the letter
addressed to Atty. Abraham Sarmiento in Quezon City and 0216 for
the letter addressed to the Court of Appeals, Manila; that I placed the
same numbering on the respective envelopes containing the letters;
and that I also post maker them January 15, 1969;
'That to the best of my recollection I wrote the correct date of posting,
February 7, 1969, on the back of one or both of the registry receipts
above mentioned;
'That the correct date of posting, February 7, 1969 also appears in
the Registry Bill Books for Quezon City and Manila where I entered
the subject registered letters;
Of course, plaintiff's counsel denies the sworn statement of Malindog and even
presented the counter-affidavit of one of his clerk by the name of Juanito D.
Quiachon. But between Malindog, whose sworn statement is manifestly a declaration
against interest since he can be criminally prosecuted for falsification on the basis

thereof, and that of Quiachon, whose statement is self-serving, we are very much
inclined to give greater weight and credit to the former. Besides, plaintiffs have not
refuted the facts disclosed in the two (2) official certifications above mentioned by the
Postmakers of Makati, Rizal. These two (2) certifications alone, even without to move
this Court to reconsider its resolution of February 25, 1969 and order the dismissal of
this appeal.
On September 5, 1969, after the rendition of the foregoing resolution, the Court of Appeals
promulgated another, denying the motion for reconsideration of the petitioner, but, at the same time,
accepting as satisfactory the explanation of Atty. Patrocino R. Corpuz why he should not be
suspended from the practice of the legal profession.
On September 20, 1969, the First Assistant Fiscal of Rizal notified the Court of Appeals that he had
found a prima facie case against Flaviano C. Malindog and would file the corresponding information
for falsification of public documents against him. The said fiscal, however, dismissed the complaint
against Quiachon for lack of sufficient evidence. The information subsequently filed against Malindog
by the first Assistance Fiscal of Rizal reads as follow:
That on or about the 7th day of February 1969, in the municipality of Makati, province
of Rizal, and a place within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping and aiding with
John Doe, whose true identity and present whereabout is still unknown, did then and
there willfully, unlawfully and feloniously falsify two registry receipts which are public
documents by reason of the fact that said registry receipts are printed in accordance
with the standard forms prescribed by the Bureau of Posts, committed as follows: the
above-named accused John Doe, on the date above-mentioned approached and
induced the accused Malindog, a letter-carrier at the Makati Post Office, to postmark
on Abraham Sarmiento in Quezon City, and the other to the Court of Appeals, Manila,
and the accused Malindog, acceding to the inducement of, and in conspiracy with,
his co-accused John Doe, did then and there willfully and feloniously falsify said
registry receipts of the Makati Post Office on January 15, 1969, thereby making it
appear that the said sealed envelopes addressed to Atty. Sarmiento and the Court of
Appeals were actually posted, and causing it to appear that the Postmaster of Makati
participated therein by posting said mail matters on January 15, 1969, when in truth
and in fact he did not so participate.
The petitioner contend that in promulgating its questioned resolution, the Court of Appeals acted
without or in excess of jurisdiction, or with such whimsical and grave abuse of discretion as to
amount to lack of jurisdiction, because (a) it declared that the motion for extension of time to file the
printed record on appeal was not mailed on January 15, 1969, when, in fact, it was mailed on the
record on appeal was filed only on February 10, 1969, beyond the time authorized by the appellate
court, when the truth is that the said date of filing was within the 30-day extension granted by it; (c)
the adverse conclusion of the appellate court are not supported by the records of the case, because
the said court ignored the affidavit of the mailing clerk of the petitioners' counsel, the registry receipts
and postmarked envelopes (citing Henning v. Western Equipment, 62 Phil. 579, and Caltex Phil., Inc.
v. Katipunan Labor Union, 52 O.G. 6209), and, instead, chose to rely upon the affidavit of the mail
carrier Malindog, which affidavit was prepared by counsel for the respondent at the affiant himself so
declared at the preliminary investigation at the Fiscal's office which absolved the petitioners' counsel
mailing clerk Quiachon from any criminal liability; (d) section 1, Rule 50 of the Rules of Court, which

enumerates the grounds upon which the Court of Appeals may dismiss an appeal, does not include
as a ground the failure to file a printed record on appeal; (e) the said section does not state either
that the mismailing of a motion to extend the time to file the printed record on appeal, assuming this
to be the case, may be a basis for the dismissal of the appeal; (f) the Court of Appeals has no
jurisdiction to revoke the extention of time to file the printed record on appeal it had granted to the
petitioners based on a ground not specified in section 1, Rule 50 of the Rules of Court; and (g) the
objection to an appeal may be waived as when the appellee has allowed the record on appeal to be
printed and approved (citing Moran, Vol. II, p. 519).
Some of the objections raised by the petitioners to the questioned resolution of the Court of Appeals
are obviously matters involving the correct construction of our rules of procedure and, consequently,
are proper subjects of an appeal by way of certiorari under Rule 45 of the Rules of Court, rather than
a special civil action for certiorari under Rule 65. The petitioners, however, have correctly
appreciated the nature of its objections and have asked this Court to treat the instant petition as an
appeal by way of certiorari under Rule 45 "in the event ... that this Honorable Supreme Court should
deem that an appeal is an adequate remedy ..." The nature of the case at bar permits, in our view, a
disquisition of both types of assignments.
We do not share the view of the petitioners that the Court of Appeals acted without or in excess of
jurisdiction or gravely abused its discretion in promulgating the questioned resolution.
While it is true that stamped on the registry receipts 0215 and 0215 as well as on the envelopes
covering the mails in question is the date "January 15, 1969," this, by itself, does not establish an
unrebuttable presumption of the fact of date of mailing. Henning and Caltex, cited by the petitioners,
are not in point because the specific adjective issue resolved in those cases was whether or not the
date of mailing a pleading is to be considered as the date of its filing. The issue in the case at bar is
whether or not the motion of the petitioners for extension of time to file the printed record on appeal
was, in point of fact, mailed (and, therefore, filed) on January 15, 1969.
In resolving this issue in favor of the respondent, this Court finds, after a careful study and appraisal
of the pleadings, admissions and denials respectively adduced and made by the parties, that the
Court of Appeals did not gravely abuse its discretion and did not act without or in excess of its
jurisdiction. We share the view of the appellate court that the certifications issued by the two
postmasters of Makati, Rizal and the sworn declaration of the mail carrier Malindog describing how
the said registry receipts came to be issued, are worthy of belief. It will be observed that the said
certifications explain clearly and in detail how it was improbable that the petitioners' counsel in the
ordinary course of official business, while Malindog's sworn statement, which constitutes a very
grave admission against his own interest, provides ample basis for a finding that where official duty
was not performed it was at the behest of a person interested in the petitioners' side of the action
below. That at the preliminary investigation at the Fiscal's office, Malindog failed to identify Quiachon
as the person who induced him to issue falsified receipts, contrary to what he declared in his
affidavit, is of no moment since the findings of the inquest fiscal as reflected in the information for
falsification filed against Malindog indicate that someone did induce Malindog to make and issue
false registry receipts to the counsel for the petitioners.
This Court held in Bello vs. Fernando 1 that the right to appeal is nota natural right nor a part of due
process; it is merely a statutory privilege, and may be exercised only in the manner provided by law. In
this connection, the Rule of Court expressly makes it the duty of an appellant to file a printed record on

appeal with the Court of Appeals within sixty (60) record on appeal approved by the trial court has already
been received by the said court. Thus, section 5 of Rule 46 states:

Sec. 5. Duty of appellant upon receipt of notice. It shall be the duty of the
appellant within fifteen (15) days from the date of the notice referred to in the
preceding section, to pay the clerk of the Court of Appeals the fee for the docketing
of the appeal, and within sixty (60) days from such notice to submit to the court forty
(40) printed copies of the record on appeal, together with proof of service of fifteen
(15) printed copies thereof upon the appelee.
As the petitioners failed to comply with the above-mentioned duty which the Rules of Court enjoins,
and considering that, as found by the Court of Appeals, there was a deliberate effort on their part to
mislead the said Court in grating them an extension of time within which to file their printed record on
appeal, it stands to reason that the appellate court cannot be said to have abused its discretion or to
have acted without or in excess of its jurisdiction in ordering the dismissal of their appeal.
Our jurisprudence is replete with cases in which this Court dismissed an appeal on grounds not
mentioned specifically in Section 1, Rule 50 of the Rules of Court. (See, for example, De la Cruz vs.
Blanco, 73 Phil. 596 (1942); Government of the Philippines vs. Court of Appeals, 108 Phil. 86 (1960);
Ferinion vs. Sta. Romana, L-25521, February 28, 1966, 16 SCRA 370, 375).
It will likewise be noted that inasmuch as the petitioners' motion for extension of the period to file the
printed record on appeal was belated filed, then, it is as though the same were non-existent, since
as this Court has already stated in Baquiran vs. Court of Appeals, 2 "The motion for extension of the
period for filing pleadings and papers in court must be made before the expiration of the period to be
extended." The soundness of this dictum in matters of procedure is self-evident. For, were the doctrine
otherwise, the uncertainties that would follow when litigants are left to determine and redetermine for
themselves whether to seek further redress in court forthwith or take their own sweet time will result in
litigations becoming more unreable than the very grievances they are intended to redness.
The argument raised by the petitioner that the objection to an appeal maybe waived, as when the
appellee allows the record on appeal to be printed and approved is likewise not meritorious
considering that the respondent did file a motion in the Court of Appeals on February 8, 1969 praying
for the dismissal of the below of the petitioners had not yet filed their record on appeal and,
therefore, must be considered to have abandoned their appeal.
In further assailing the questioned resolution of the Court of Appeals, the petitioners also point out
that on the merits the equities of the instant case are in their favor. A reading of the record, however,
persuades us that the judgment a quo is substantially correct and morally just.
The appealed decision of the court a quo narrates both the alleged and proven facts of the dispute
between the petitioners and the respondent, as follows:
This is a suit for specific performance filed by Lorenzo Velasco against the
Magdalena Estate, Inc. on the allegation that on November 29, 1962 the plaintiff and
the defendant had entered into a contract of sale (Annex A of the complaint) by virtue
of which the defendant offered to sell the plaintiff and the plaintiff in turn agreed to
buy a parcel of land with an area of 2,059 square meters more particularly described

as Lot 15, Block 7, Psd-6129, located at No. 39 corner 6th Street and Pacific Avenue,
New Manila, this City, for the total purchase price of P100,000.00.
It is alleged by the plaintiff that the agreement was that the plaintiff was to give a
down payment of P10,000.00 to be followed by P20,000.00 and the balance of
P70,000.00 would be paid in installments, the equal monthly amortization of which
was to be determined as soon as the P30,000.00 down payment had been
completed. It is further alleged that the plaintiff paid down payment of P10,000.00 on
November 29, 1962 as per receipt No. 207848 (Exh. "A")and that when on January
8, 1964 he tendered to the defendant the payment of the additional P20,000.00 to
complete the P30,000.00 the defendant refused to accept and that eventually it
likewise refused to execute a formal deed of sale obviously agreed upon. The plaintiff
demands P25,000.00 exemplary damages, P2,000.00 actual damages and
P7,000.00 attorney's fees.
The defendant, in its Answer, denies that it has had any direct dealings, much less,
contractual relations with the plaintiff regarding the property in question, and
contends that the alleged contract described in the document attached to the
complaint as Annex A is entirely unenforceable under the Statute of Frauds; that the
truth of the matter is that a portion of the property in question was being leased by a
certain Socorro Velasco who, on November 29, 1962, went to the office of the
defendant indicated her desire to purchase the lot; that the defendant indicated its
willingness to sell the property to her at the price of P100,000.00 under the condition
that a down payment of P30,000.00 be made, P20,000.00 of which was to be paid on
November 31, 1962, and that the balance of P70,000.00 including interest a 9% per
annum was to be paid on installments for a period of ten years at the rate of
P5,381.32 on June 30 and December of every year until the same shall have been
fully paid; that on November 29, 1962 Socorro Velasco offered to pay P10,000.00 as
initial payment instead of the agreed P20,000.00 but because the amount was short
of the alleged P20,000.00 the same was accepted merely as deposited and upon
request of Socorro Velasco the receipt was made in the name of her brother-in-law
the plaintiff herein; that Socorro Velasco failed to complete the down payment of
P30,000.00 and neither has she paid any installments on the balance of P70,000.00
up to the present time; that it was only on January 8, 1964 that Socorro Velasco
tendered payment of P20,000.00, which offer the defendant refused to accept
because it had considered the offer to sell rescinded on account of her failure to
complete the down payment on or before December 31, 1962.
The lone witness for the plaintiff is Lorenzo Velasco, who exhibits the receipt,
Exhibits A, issued in his favor by the Magdalena Estate, Inc., in the sum of
P10,000.00 dated November 29, 1962. He also identifies a letter (Exh. B)of the
Magdalena Estate, Inc. addressed to him and his reply thereto. He testifies that
Socorro Velasco is his sister-in-law and that he had requested her to make the
necessary contacts with defendant referring to the purchase of the property in
question. Because he does not understand English well, he had authorized her to
negotiate with the defendant in her whenever she went to the office of the defendant,
and as a matter of fact, the receipt for the P10,000.00 down payment was issued in
his favor. The plaintiff also depends on Exhibit A to prove that there was a perfected
follows: "Earnest money for the purchase of Lot 15, Block 7, Psd-6129, Area 2,059

square meters including improvements thereon P10,000.00." At the bottom of


Exhibit A the following appears: "Agreed price: P100,000.00, P30,000.00 down
payment, bal. in 10 years."
To prove that the Magdalena Estate, Inc. had been dealing all along with him and not
with his sister-in-law and that the Magdalena Estate, Inc. knew very well that he was
the person interested in the lot in question and not his sister-in-law, the plaintiff offers
in evidence five checks all drawn by him in favor of Magdalena Estate, Inc. for
payment of the lease of the property. ....
There does not seem to be any dispute regarding the fact that the Velasco family
was leasing this property from the Magdalena Estate, Inc. since December 29, 1961;
that the Velasco family sometime in 1962 offered to purchase the lot as a result of
which Lorenzo Velasco thru Socorro Velasco made the P10,000.00 deposit or, in the
language of the defendant 'earnest money or down payment' as evidenced by Exhibit
A. The only matter that remains to be decided is whether the talks between the
Magdalena Estate, Inc. and Lorenzo Velasco either directly or thru his sister-in-law
Socorro Velasco ever ripened into a consummated sale. It is the position of the
defendant (1) that the sale was never consummated and (2) that the contract is
unenforceable under the Statute of Frauds.
The court a quo agreed with the respondent's (defendant therein) contention that no contract of sale
was perfected because the minds of the parties did not meet "in regard to the manner of payment."
The court a quo appraisal of this aspect of the action below is correct. The material averments
contained in the petitioners' complaint themselves disclose a lack of complete "agreement in regard
to the manner of payment" of the lot in question. The complaint states pertinently:
4. That plaintiff and defendant further agreed that the total down payment shall by
P30,000.00, including the P10,000.00 partial payment mentioned in paragraph 3
hereof, and that upon completion of the said down payment of P30,000.00, the
balance of P70,000.00 shall be said by the plaintiff to the defendant in 10 years from
November 29, 1962;
5. That the time within the full down payment of the P30,000.00 was to be completed
was not specified by the parties but the defendant was duly compensated during the
said time prior to completion of the down payment of P30,000.00 by way of lease
rentals on the house existing thereon which was earlier leased by defendant to the
plaintiff's sister-in-law, Socorro J. Velasco, and which were duly paid to the defendant
by checks drawn by plaintiff.
It is not difficult to glean from the aforequoted averments that the petitioners themselves admit that
they and the respondent still had to meet and agree on how and when the down-payment and the
installment payments were to be paid. Such being the situation, it cannot, therefore, be said that a
definite and firm sales agreement between the parties had been perfected over the lot in question.
Indeed, this Court has already ruled before that a definite agreement on the manner of payment of
the purchase price is an essential element in the formation of a binding and unforceable contract of
sale. 3 The fact, therefore, that the petitioners delivered to the respondent the sum of P10,000 as part of
the down-payment that they had to pay cannot be considered as sufficient proof of the perfection of any
purchase and sale agreement between the parties herein under article 1482 of the new Civil Code, as the

petitioners themselves admit that some essential matter the terms of payment still had to be
mutually covenanted.

ACCORDINGLY, the instant petitioner is hereby denied. No pronouncement as to costs.


Makalintal, Makasiar and Esguerra, JJ., concur.
Fernando, J., took no part.
Barredo, J.: The petitioners having clearly and without sufficient justification failed to prosecute their
appeal within the period allowed by the rules, I vote to deny the petition, and consistently with my
view already expressed on previous occasions, any discussion of the merits of the appeal is
unwarranted, particularly, in instances like the present, wherein the same does not appear to me,
upon cursory examination to be beyond doubt..

Separate Opinions

TEEHANKEE, J., dissenting:


I dissent from the main opinion penned by Mr. Justice Castro affirming the appellate court's dismissal
of petitioner' pending appeal before it because of late submittal of the printed record on appeal (by
24 days), on appeal when the appeal was indisputably timely perfected does not call for the
imposition of the capital penalty of dismissal of the appeal.
As in my separate opinion in Sison vs. Gatchalian 1 promulgated just a few weeks earlier, I must note
with gratification the special pains taken in the main opinion to discuss nevertheless the substance and
merit of the aborted appeal and to record the Court's policy in such cases (of dismissal of appeals timely
perfected for failure to comply with certain requirements of the Rules) of invariably satisfying itself that
there is "a rational basis for the result by the trial court" 2 in the judgment sought to be reviewed by the
appeal.
In the case at bar, however, I believe that the merits and equities invoked by petitioners-appellants in
support of their action for specific performance of their agreement with respondent for the purchase
of the parcel of land described in the complaint for the "agreement price (of): P10,000.00,
P30,000.00 down payment, bal. in 10 years" (which is a matter of mathematical computation), with
petitioners having admittedly made a down payment of P10,000.00 as "earnest money" which was
accepted by respondent and continuing to pay respondent lease rentals for the time taken to
complete the full down payment pending formalization of their contract, deserve a full-dress
consideration of the appeal and legal principles involved with a decision on the merits of the case
itself.

Since two other members of the Court, viz, Justices Barredo and Antonio, have reserved their
opinions on the merits of the appeals, as stated in their respective concurrences, I further consider
this to be a case where the paramount considerations of substantial justice must take precedence
over the lateness (by 24 days) in the submittal of the printed record on appeal which in no way
can be claimed to have prejudiced the substantial rights of respondent or delayed the cause of the
administration of justice and that accordingly, such a technical trangression on counsel's part
should not result in the drastic forfeiture of petitioners' right of appeal and of securing a possible of
the adverse verdict of the lower court.
As stated by Chief Justice Concepcion for the Court in Concepcion vs. Payatas Estate
Improvements Co., Inc., 3"After all, pleadings, as well as remedial laws, should by construed literally, in
order that litigants may have ample opportunity to prove their respective claims, and that a possible
denial of substantial justice, due to legal technicalities, may be avoided." This is but the very mandate of
the Rules of Court: that they be "liberally construed in order to promote theirobject and to assist the
determination of every action and proceeding" 4 and that "All pleadings shall be liberally construed so as
to do substantial justice." 5
Here, the 60-day period for petitioners appellants "to submit .... forty (40) printed copies of the record
on appeal" from notice on November 18, 1968 of receipt of the original typewritten record on appeal"
from notice on November 18, 1968 of receipt of the original typewritten record on appeal in the
appellate court 6 was to expire on January 17, 1969. Petitioners submitted their printed record on appeal
on the 24th day after such expiry date, viz, on viz, onFebruary 10, 1969.
The appellate court admitted the printed record on appeal as per its original resolution of February
25, 1969 denying respondent's motion to dismiss the appeal, wherein it granted the registry-mailed
motion of petitioners' counsel for a 30-day extension from January 15, 1969 within which to submit
the same. Counsel's ground for such extension was from ground for such extension machines and
voluminous printing jobs of the Vera Pinting Press, which they had contracted to do the printing job.
Upon complaint of respondent, however, that petitioners' counsel, through its mailing clerk Juanito D.
Quiachon, had deceived the appellate court into believing that their motion for extension had been
registry mailed January 15, 1969 when actually it was so mailed late only on February 7, 1969, as
borne out by the affidavit of Flaviano Malindog, a said post office which the appellate court
believed as against Quiachon's counter-affidavit to the contrary the said court as per its resolution
of June 28, 1969 granted respondent's motion for reconsideration and ordered the dismissal of
petitioners' appeal "for their failure to file their printed record on appeal within the period authorized
by this court."
In the same resolution, Atty. Patrocino R. Corpus, as petitioners' counsel, was required to show
cause "why he should not be suspended from the practice of his profession for deceit, falsehood and
violation of his sworn duty to the Court," but subsequently, the appellate court as per its resolution of
September 5, 1969 accepted as satisfactory said counsel's explanation and disclaimer of any
wrongdoing.
Acting upon the appellate court's directive to investigate the incident for the filing of appropriate
criminal action against Quiachon and Malindog, the Rizal provincial fiscal found a prima facie case
against Malindog (the letter-carrier) and charged him in the corresponding information for falsification
of public documents but dismissed the complaint against Quiachon (the mailing clerk of petitioners'

counsel) for lack of sufficient evidence since Malindog could not identify Quiachon ass the person
who induced him to issue falsified registry receipts.
I concur with the main opinion in its ruling upholding the appellate court's factual findings, which I
don't consider to be reviewable by this Court, grounded as they are on substantial evidence. Hence,
for purposes of this review, such factual findings must be postulated, to wit, that the printed record
on appeal was submitted 24 days late on February 10, 1969, that there was a deliberate effort on the
part of an unknown person (John Doe in the in information) not petitioners nor their
counsel nor Quiachon, the mailing clerk to induce Malindog to make and issue false registry
receipts that showed that petitioners' counsel's motion for a 30-day extension to submit
the printed record on appeal was filed timely on January 15, 1959 rather late(by 21 days) on
February 7, 1969.
The general issue of law that confronts us then is this: is the 60-day period for submitting the printed
record on appeal mandatory and jurisdictional or is this merely a procedural period on appeal (owing
to a valid reason of mechanical failures and pressure of work of the printer) regardless of whether a
motion for extension of time to submit the printed record on appeal was in fact filed or filed out of
time after expiration of the original 60-day period, may in the appellate court's sound discretion in the
interest of justice and equity be nevertheless allowed and appeal heard and decided on its merits?
The 60-day period for submitting the printed record on appeal is obviously imposed as a procedural
rule, under Rule 46, section 5, like many other time limitations imposed by the Rule of Court as
indispensable to the prevention of needless dalays and necessary to the orderly and speedy
discharge of judicial business. 7
But this 60-day period for submitting the printed record on appeal is to be distinguished from a court
of first instance judgment under Rule 41, section 3, where failure to file the necessary notice, bond
and record on appeal within the said 30-day period, if not duly extended, is fatal and calls for
dismissal of the unperfected appeal under Rule 41, section 13.
Here, the appeal had been long and timely duly perfected by petitioners. What is merely involved
here is late filing (by 24 days) of the printed copies of the record on appeal, which this Court has
held in Ever Ice Drop Factory vs. Court of Appeals 8 as "not indispensable to the jurisdiction of the
appellate courts, the sole purpose of such printing beingconvenience in
the handling, keeping and reading of the record on appeal."
In the cited case of Ever, the Court applied the salutary rule of overlooking procedural deficiencies in
the interest of substantial justice and set aside the appellate court's dismissal of the appeal (for noninclusion in the joint record on appeal of the appellants' notice of appeal and date of receipt of the
appealed decision on appeal"), ruling that "Inasmuch as Rule 41 is in that portion of the rules
pertaining to the stage of the appeal process taking place in the trial court, it is but logical that the
frame of reference, when the completeness of a record on appeal, as therein provided, is in
question, must be the contents of said record as filed with said court, and not necessarily those of
the printed one filed with the appellant court."
As applied to the case at bar, therefore, I vote for the granting of the petition and to demand the
appeal to the appellate court for disposition and decision of the merits, for the following
considerations, in addition to those stated above and in my separate opinion in Sison, supra:

Since the use of the false registry receipts appears in no way to be the making of petitioners
themselves, who as clients may be presumed to be entirely unaware of the procedural requirements
and of their counsel's action or inaction in complying therewith, the imposition of the capital of
dismissal of petitioners' appeal is unduly severe;
Such a harsh penalty appears to be in derogation of the interest and purpose of the Rules of
Court the proper and just determination of a litigation. No substantial right of respondent has been
prejudiced by the late submittal of the late submittal of the printed record, whereas petitioners'
appeal would be forfeited through no fault or negligence on their part; While clients are generally
bound by the actions or mistakes of their counsels, here no fault or wrongdoing has been attributed
to either petitioners or their counsel. Their counsel's late submittal of the brief and of the
corresponding motions for extension (by less than a month's time) is not rank failure to comply with
the rule's requirements;
The specific rule (Rule 46, section 5) does not provided for dismissal of the appeal for failure to
submit theprinted record on appeal whereas section 7 of the rule prohibits "alternations, omissions or
additions to the printed record" and does provide that "a violation of this prohibition shall be a ground
for dismissal of the appeal."
Even Rule 50, section 1 which provides that the appellate court may dismissal pending appeal for
certain specific infractions of the rules, e.g. failure to pay the docketing fee or to file appellant's brief
on time or "unauthorized alterations, omissions or additions in the printed record on appeal"
(paragraph(e)) or want of specific assignment of errors or of page references to the record in
appellant's brief, merely confers a power, not a duty, upon the mandatory, upon the said court to
exercise its power to dismiss an appeal and dismissal has been ordered sparingly and only in
extreme cases warranting dismissal;
Withal, this Court may dismiss an appeal even on grounds not specifically mentioned in Rule 50,
section 1, as where the wanton or inexcusable conduct of appellant in not complying with the rules
warrants such dismissal. 9 But the Rules certainly do not authorize dismissal of a duly perfected
appeal within the original 60-day period, such failure not being wanton or inexcusable. Yet such
failure to file the printed record on appeal within the 60-day period (which was filed late by 24 days
and had already been admitted) was the only ground stated by the appellate court for its peremptory
dismissal of the appeal;
Thus, the appellate court did not sustain respondent's contention that petitioners through counsel
had deceived it through knowing use of the false registry receipts, since it exonerated counsel of any
complicity. One gets the impression that the unnamed person had perhaps induced Malindog to
issue the false receipts to cover up some neglect or fault on Quiachon's part in not having timely
mailed counsel's extension motion, but neither the appellate court nor the fiscal made any such
Quiachon was responsible for the deception, it does not seem fair to penalize petitioners with
dismissal of their appeal;
The appellate court thus disregarded the harmless error rule as provided in Rule 51, section 5
that "no error or defect in any ruling or order ... [such as its first order admitting the printed record on
appeal in the belief that petitioners' motion for extension had been timely filed] .... is ground.... for
setting aside, modifying or otherwise disturbing a judgment or order, unless refusal to take such
action appears to the court inconsistent withsubstantial justice. The court at every stage of the

proceeding must disregard any error or defect which does notaffect the substantial rights of the
parties;" 10
Since the enactment as of September 9, 1968 of Republic Act 5440 providing that in most cases
as specified therein, 11 review by this Court of final judgments and decrees of inferior courts shall be by
petition for writ of certiorari and no longer by record on appeal some parties-appellants aggrieved by
adverse to submit their appeals to this Court by means of records on appeal as approved by the lower
court, contrary to the act's mandate that they should by presented by means of "petition .... filed and
served in the form required for petitions for review by certiorari of decisions of the Court of Appeals." 12
Strictly speaking, such an error although abetted by the trial court's act of approving a record on appeal
that is not required by the Act, could be considered fatal to the appeal. But following paramount
considerations of substantial justice in preference to transgressions of form, as stressed in Sonora vs.
Tongoy, 13 "the Court has been liberal in the implementation of Republic Act 5440 and instead of
dismissing appeals coming up to Us by record on appeal, We have allowed the appellants to file the
corresponding petition(for review by certiorari) provided the appeal by record on appeal had been duly
perfected within the reglementary period. 14
This is to stress that even though the provision of Republic Act 5440 that such appeals shall be
only on petitions for review by petitions by certiorari and no longer as a matter of right by record on
appeal is of a mandatory character, this Court has nevertheless adopted a liberal construction and
chosen to apply the principle of substantial justice in favor of one whose appeal was actually
perfected on time rather than to sacrifice substance to form. In the language of Sonora, vis a vis the
case at bar, "it is less than fair for respondents to attempt to cut off (petitioners') right to appeal by
invoking the literal meaning of the language of the rules, disregarding their wise and practical
construction already laid down by the Supreme Court." 15
In sensu contrario, applying the same principles of substantial justice the Court has in many
cases seeking mandamus or reinstatement of disallowed appeals (although timely made) looked at
the "substantive merits" of the proposed appeal and where "there is hardly any prospect of its being
ultimately sucessful," denied mandamus, ruling as in Espiritu vs. CFI of Cavite 16 that" this Court has
already ruled on several occasions, since as early as De la Cruz vs. Blanco, 73 Phil. 596 that mandamus
to compel approval and certification of an appeal, even if otherwise well grounded, procedurally speaking,
has to be appeal itself, and 'it would serve no useful purpose to reinstate' the same." Lucas vs.
Mariano 17 was to the same effect with the Court sustaining therein petitioner's submittal "that from the
point of view of the time of the taking of the appeal, petitioners, We are sufficiently convinced that their
claim of title has no chance of being sustained even if other and further proceedings were to be held in
the court below;" and
Finally, adherence to a liberal construction of the procedural rules in order to attain their objective
of substantial justice and of avoiding possible denials of substantial justice due to procedural
technicalities does not mean non-enforcement of the Rules of Court which are universally
recognized to be necessary to the orderly and speedy discharge of judicial business with the least
delay. Compliance with the rules, which are not of mandatory character (such as the period for
perfecting appeals, failure to observe which results in the automatic penalty of loss of the right to
appeal) but of directory character to provide time tables and prevent needless delay in readying a
duly perfected appeal for consideration and decision (such as the 60-day period for submittal of the
printed record on appeal involved here, periods for filling of briefs and transcripts, through the
imposition of appropriate disciplinary admonition or offending counsel, ranging from an contempt to
even more drastic measures of administrative proceedings for disbarment against him, depending
upon the gravity of the offense.

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


EFREN C. MONCUPA, petitioner,
vs.
JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR, FERNANDO GOROSPE, AND
JOSE CASTRO,respondents.
Lorenzo M. Tanada, Jose W. Diokno and Joker Arroyo for petitioner,

GUTIERREZ, JR., J.:


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

A prime specification of al application for a writ of habeas corpus is restraint of liberty.


The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal. Any restraint which will preclude freedom
of action is sufficient. ...
This latitudinarian scope of the writ of habeas-corpus has, in law, remained undiminished up to the
present. The respondents' contention that the petition has become moot and academic must
necessarily be denied. Efren C. Moncupa may have been released from his detention cell. The
restraints attached to his temporary release, however, preclude freedom of action and under
the Villavicencio v. Lukban rule warrant this Court's inquiry into the nature of his involuntary restraint
and our relieving him of such restraints as may be illegal.
Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982 at about 10:50
P.M., at the corner of D. Street and Quezon Avenue, Quezon City. Moncupa D. Tuazon was brought
to MIG-15 Camp Bago Bantay, Quezon City where he was detained. On April 23, 1982, on the
allegation that he was a National Democratic Front (NDF) staff member, a Presidential Commitment
Order (PCO) was issued against him and eight (8) other persons.
After two separate investigations, conducted first, by Lieutenant Colonel Gerardo Lantoria, Jr., Chief
of Task Force Makabansa Investigation Group and second, by Investigating Fiscal Amado Costales
of Quezon City, it was ascertained that the petitioner was not a member of any subversive
organization. Both investigators recommended the prosecution of the petitioner only for illegal
possession of firearms and illegal possession of subversive documents under Presidential Decree
No. 33.
Consequently, two separate informations were filed against the petitioner, one, for illegal possession
of firearms before the Court of First Instance of Rizal and the other for violation of P.D. 33 before the
City Court of Quezon City. Against the other accused, however, the cases filed were for violation of
P.D. 885 as amended. Significantly, the petitioner was excluded from the charge under the Revised
Anti-Subversion Law. During the pendency of this petition, it is significant that his arraignment and
further proceedings have not been pursued. And yet, the petitioner's motions for bail were denied by
the lower court.
Hence, the petitioner filed the instant petition.
The respondents, in their return of the writ justified the validity of petitioner's detention on the ground
that the privilege of the writ had been suspended as to the petitioner. However, on August 30, 1983,
the respondents filed a motion to dismiss stating that on May 11, 1983, the petitioner was
temporarily released from detention on orders of the Minister temporary of National Defense with the
approval of the President. The respondents stated. "Since the petitioner is free and no longer under
the custody of the respondents, the present petition for habeas corpus may be deemed moot and
academic as in similar cases.
The issue to be resolved is whether or not the instant petition has become moot and academic in
view of the petitioner's temporary release.
It is to be noted that attached to the petitioner's temporary release are restrictions imposed on him.
These are:

1) His freedom of movement is curtailed by the condition that petitioner gets the approval of
respondents for any travel outside Metro Manila.
2) His liberty of abode is restricted because prior approval of respondents is also required in case
petitioner wants to change his place of residence.
3) His freedom of speech is muffled by the prohibition that he should not "participate in any interview
conducted by any local or foreign mass media representatives nor give any press release or
information that is inimical to the interest of national security."
4) He is required to report regularly to respondents or their representatives.
The petitioner argues that although admittedly his temporary release is an improvement upon his
actual detention, the restrictions imposed by the respondents constitute an involuntary and illegal
restraint on his freedom.
The petitioner stresses that his temporary release did not render the instant petitioner moot and
academic but that "it merely shifted the inquiry from the legality of his actual detention to the legality
of the conditions imposed by the respondents."
We agree with the petitioner.
The reservation of the military in the form of restrictions attached to the temporary release of the
petitioner constitute restraints on the liberty of Mr. Moncupa. Such restrictions limit the freedom of
movement of the petitioner. It is not physical restraint alone which is inquired into by the writ of
habeas corpus.
In Villavicencio v. Lukban, the women who had been illegally seized and transported against their will
to Davao were no longer under any official restraint. Unlike petitioner Moncupa, they were free to
change their domicile without asking for official permission. Indeed, some of them managed to return
to Manila. Yet, the Court condemned the involuntary restraints caused by the official action, fined the
Mayor of Manila and expressed the hope that its "decision may serve to bulwark the fortifications of
an orderly government of laws and to protect individual liberty from Megal encroachment."
In the light of the above ruling, the present petition for habeas corpus has not become moot and
academic. Other precedents for such a conclusion are not wanting.
The decision in Caunca v. Salazar (82 Phil. 851) states:
An employment agency, regardless of the amount it may advance to a prospective
employee or maid, has absolutely no power to curtail her freedom of movement. The
fact that no physical force has been exerted to keep her in the house of the
respondent does not make less real the deprivation of her personal freedom of
movement, freedom to transfer from one place to another, from to choose one's
residence. Freedom may be lost due to external moral compulsion, to founded or
groundless fear, to erroneous belief in the existence of the will. If the actual effect of
such psychological spell is to place a person at the mercy of another, the victim is

entitled to the protection of courts of justice as much as the individual who is illigally
deprived of liberty by deprived or physical coercion.
In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled:
Although the release in the custody of the Deputy Minister did not signify that
petitioners could once again enjoy their full freedom, the application could have been
dismissed, as it could be withdrawn by the parties themselves. That is a purely
voluntary act. When the hearing was held on September 7, 1978, it turned out that
counsel for petitioner Bonifacio V. Tupaz could have academic in a hasty manner
when he set forth the above allegations in his manifestation of August 30, 1978, for
Attorney Jose C. Espinas, who appeared for petitioners, while conceding that there
was such a release from confinement, also alleged that it was conditioned on their
restricting their activities as labor union leaders to the premises of the Trade Unions
of the Philippines and ABSOLUTE Services, presumably in Macaraig as well as the
Ministry of labor. As the voting was to take place in the business firm in Bataan, the
acts set would nullify whatever efforts they could have exerted. To that extent, and
with the prohibition against their going to Bataan, the restraint on liberty was
undeniable. If so, the moot and academic character of the petition was far from clear.
More recently, we had occasion to rule squarely on whether or not a temporary release from
detention renders the petition for writ of habeas corpus moot and academic. As in this case of
Moncupa, the petitioners in Toyoto, et al v. Hon. Fidel Ramos, et al, G.R. No. 69270, October 15,
1985, were temporarily released from detention. The respondents filed a motion to dismiss the
petition for habeas corpus on the ground that the petitioners had been temporarily released and their
case had, therefore, become moot and academic. The petitioners insisted, however, that their case
may be considered moot and academic only "if their release would be permanent." In ruling for the
petitioners, we said:
Ordinarily, a petition for habeas corpus becomes moot and academic when the
restraint on the liberty of the petitioners is lifted either temporarily or permanently. We
have so held in a number of cases. But the instant case presents a different situation.
The question to be resolved is whether the State can reserve the power to re-arrest a
person for an offense after a court of competent jurisdiction has absolved him of the
offense. An affirmative answer is the one suggested by the respondents because the
release of the petitioners being merely 'temporary' it follows that they can be rearrested at anytime despite their acquittal by a court of competent jurisdiction. We
hold that such a reservation is repugnant to the government of laws and not of men
principle. Under this principle the moment a person is acquitted on a criminal charge
he can no longer be detained or re-arrested for the same offense. This concept is so
basic and elementary that it needs no elaboration.
In effect the principle is clear. A release that renders a petition for a writ of habeas corpus moot and
academic must be one which is free from involuntary restraints. Where a person continues to be
unlawfully denied one or more of his constitutional freedoms, where there is present a denial of due
process, where the restraints are not merely involuntary but appear to be unnecessary, and where a
deprivation of freedom originally valid has, in the light of subsequent developments, become
arbitrary, the person concerned or those applying in his behalf may still avail themselves of the
privilege of the writ.

The respondents have failed to show why the writ may not issue and why the restraints on the
petitioner's freedom of movement should not be lifted.
WHEREFORE, the PETITION is GRANTED. The conditions attached to the temporary release of the
petitioner are declared null and void. The temporary release of the petitioner is declared
ABSOLUTE. No costs,
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
A.M. No. 07-9-12-SC
(25 September 2007)
THE RULE ON THE WRIT OF AMPARO

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.
SEC. 2. Who May File. The petition may be filed by the aggrieved party or by any qualified person
or entity in the following order:
a. Any member of the immediate family, namely: the spouse, children and parents of the
aggrieved party;
b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph;
or
c. Any concerned citizen, organization, association or institution, if there is no known member
of the immediate family or relative of the aggrieved party.
The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file
similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved
party suspends the right of all others, observing the order established herein.
SEC. 3. Where to File. The petition may be filed on any day and at any time with the Regional
Trial Court of the place where the threat, act or omission was committed or any of its elements
occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of
such courts. The writ shall be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such
court or judge.
When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be
returnable before such court or any justice thereof, or to any Regional Trial Court of the place where
the threat, act or omission was committed or any of its elements occurred.
When issued by the Supreme Court or any of its justices, it may be returnable before such Court or
any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or
to any Regional Trial Court of the place where the threat, act or omission was committed or any of its
elements occurred.
SEC. 4. No Docket Fees. The petitioner shall be exempted from the payment of the docket and
other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act
upon it immediately.
SEC. 5. Contents of Petition. The petition shall be signed and verified and shall allege the
following:
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.
SEC. 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue
the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue
the writ under his or her own hand, and may deputize any officer or person to serve it.
The writ shall also set the date and time for summary hearing of the petition which shall not be later
than seven (7) days from the date of its issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses to issue
the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished
by the court, justice or judge for contempt without prejudice to other disciplinary actions.
SEC. 8. How the Writ is Served. The writ shall be served upon the respondent by a judicial officer
or by a person deputized by the court, justice or judge who shall retain a copy on which to make a
return of service. In case the writ cannot be served personally on the respondent, the rules on
substituted service shall apply.
SEC. 9. Return; Contents. Within seventy-two (72) hours after service of the writ, the respondent
shall file a verified written return together with supporting affidavits which shall, among other things,
contain the following:
a. The lawful defenses to show that the respondent did not violate or threaten with violation the
right to life, liberty and security of the aggrieved party, through any act or omission;
b. The steps or actions taken by the respondent to determine the fate or whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or omission;

c. All relevant information in the possession of the respondent pertaining to the threat, act or
omission against the aggrieved party; and
d. If the respondent is a public official or employee, the return shall further state the actions that
have been or will still be taken:
i.

to verify the identity of the aggrieved party;

ii.

to recover and preserve evidence related to the death or disappearance of the


person identified in the petition which may aid in the prosecution of the person or
persons responsible;

iii.

to identify witnesses and obtain statements from them concerning the death or
disappearance;

iv.

to determine the cause, manner, location and time of death or disappearance as well
as any pattern or practice that may have brought about the death or disappearance;

v.

to identify and apprehend the person or persons involved in the death or


disappearance; and

vi.

to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the
prosecution of the case.
A general denial of the allegations in the petition shall not be allowed.
SEC. 10. Defenses not Pleaded Deemed Waived. All defenses shall be raised in the return,
otherwise, they shall be deemed waived.
SEC. 11. Prohibited Pleadings and Motions. The following pleadings and motions are prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file return, opposition, affidavit, position paper and other
pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f.

Third-party complaint;

g. Reply;

h. Motion to declare respondent in default;


i.

Intervention;

j.

Memorandum;

k. Motion for reconsideration of interlocutory orders or interim relief orders; and


l.

Petition for certiorari, mandamus or prohibition against any interlocutory order.

SEC. 12. Effect of Failure to File Return. In case the respondent fails to file a return, the court,
justice or judge shall proceed to hear the petition ex parte.
SEC. 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.
The hearing shall be from day to day until completed and given the same priority as petitions for
habeas corpus.
SEC. 14. Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court,
justice or judge may grant any of the following reliefs:
(a) Temporary Protection Order. The court, justice or judge, upon motion or motu proprio,
may order that the petitioner or the aggrieved party and any member of the immediate family
be protected in a government agency or by an accredited person or private institution
capable of keeping and securing their safety. If the petitioner is an organization, association
or institution referred to in Section 3(c) of this Rule, the protection may be extended to the
officers involved.
The Supreme Court shall accredit the persons and private institutions that shall extend
temporary protection to the petitioner or the aggrieved party and any member of the
immediate family, in accordance with guidelines which it shall issue.
The accredited persons and private institutions shall comply with the rules and conditions
that may be imposed by the court, justice or judge.
(b) Inspection Order. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a designated land or other
property, to permit entry for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the inspection order is necessary to establish the right of the
aggrieved party alleged to be threatened or violated.
The inspection order shall specify the person or persons authorized to make the inspection
and the date, time, place and manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The order shall expire five (5) days
after the date of its issuance, unless extended for justifiable reasons.
(c) Production Order. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain evidence relevant to the
petition or the return, to produce and permit their inspection, copying or photographing by or
on behalf of the movant.
The motion may be opposed on the ground of national security or of the privileged nature of
the information, in which case the court, justice or judge may conduct a hearing in chambers
to determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to protect the constitutional rights
of all the parties.
(d) Witness Protection Order. The court, justice or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice for admission to the Witness Protection,
Security and Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other government agencies, or to
accredited persons or private institutions capable of keeping and securing their safety.
SEC. 15. Availability of Interim Reliefs to Respondent. Upon verified motion of the respondent
and after due hearing, the court, justice or judge may issue an inspection order or production order
under paragraphs (b) and (c) of the preceding section.
A motion for inspection order under this section shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the defenses of the respondent.
SEC. 16. Contempt. The court, justice or judge may order the respondent who refuses to make a
return, or who makes a false return, or any person who otherwise disobeys or resists a lawful
process or order of the court to be punished for contempt. The contemnor may be imprisoned or
imposed a fine.
SEC. 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 or entity 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 to evade responsibility or liability.
SEC. 18. Judgment. The court shall render judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations in the petition are proven by substantial evidence,
the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied.
SEC. 19. Appeal. Any party may appeal from the final judgment or order to the Supreme Court
under Rule 45. The appeal may raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.
The appeal shall be given the same priority as in habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. The court shall not dismiss the petition, but shall
archive it, if upon its determination it cannot proceed for a valid cause such as the failure of
petitioner or witnesses to appear due to threats on their lives.
A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio
or upon motion by any party, order their revival when ready for further proceedings. The petition shall
be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from
notice to the petitioner of the order archiving the case.
The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived
cases under this Rule not later than the first week of January of every year.
SEC. 21. Institution of Separate Actions. This Rule shall not preclude the filing of separate
criminal, civil or administrative actions.
SEC. 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.
SEC. 23. Consolidation. When a criminal action is filed subsequent to the filing of a petition for
the writ, the latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed subsequent to a petition for a writ of
amparo, the latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the
reliefs in the petition.
SEC. 24. Substantive Rights. This Rule shall not diminish, increase or modify substantive rights
recognized and protected by the Constitution.
SEC. 25. Suppletory Application of the Rules of Court. The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with this Rule.
SEC. 26. Applicability to Pending Cases. This Rule shall govern cases involving extralegal
killings and enforced disappearances or threats thereof pending in the trial and appellate courts.
SEC. 27. Effectivity. This Rule shall take effect on October 24, 2007, following its publication in
three (3) newspapers of general circulation.

EDGARDO NAVIA,[1] RUBEN


DIO,[2] and ANDREW BUISING,
Petitioners,

G.R. No. 184467


Present:

- versus -

CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,

ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

VIRGINIA PARDICO, for and in


behalf and in representation of
BENHUR V. PARDICO
Promulgated:
Respondent.
June 19, 2012
x--------------------------------------------------------x

DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance cases, allegation and
proof that the persons subject thereof are missing are not enough. It must also be shown
by the required quantum of proof that their disappearance was carried out by, or with the
authorization, support or acquiescence of, [the government] or a political organization,
followed by a refusal to acknowledge [the same or] give information on the fate or
whereabouts of [said missing] persons.[3]
This petition for review on certiorari[4] filed in relation to Section 19 of A.M. No. 07-912-SC[5] challenges the July 24, 2008 Decision[6] of the Regional Trial Court (RTC),
Branch 20, Malolos City which granted the Petition for Writ of Amparo[7] filed by herein
respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies
Corporation[8] (Asian Land) arrived at the house of Lolita M. Lapore (Lolita) located at
7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam, Malolos City. The
arrival of the vehicle awakened Lolitas son, Enrique Lapore (Bong), and Benhur Pardico
(Ben), who were then both staying in her house. When Lolita went out to investigate, she
saw two uniformed guards disembarking from the vehicle. One of them immediately
asked Lolita where they could find her son Bong.Before Lolita could answer, the guard
saw Bong and told him that he and Ben should go with them to the security office
of Asian Land because a complaint was lodged against them for theft of electric wires
and lamps in the subdivision.[9]

Shortly thereafter, Bong, Lolita and Ben were in the office of the security department
of Asian Land also located in Grand Royale Subdivision.[10] The supervisor of the
security guards, petitioner Edgardo Navia (Navia), also arrived thereat.
As to what transpired next, the parties respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because they received a
report from a certain Mrs. Emphasis, a resident of Grand Royale Subdivision, that she
saw Bong and Ben removing a lamp from a post in said subdivision. [11] The reported
unauthorized taking of the lamp was relayed thru radio to petitioners Ruben Dio (Dio)
and Andrew Buising (Buising), who both work as security guards at
the Asian Land security department. Following their departments standard operating
procedure, Dio and Buising entered the report in their logbook and proceeded to the
house of Mrs. Emphasis. It was there where Dio and Buising were able to confirm who
the suspects were. They thus repaired to the house of Lolita where Bong and Ben were
staying to invite the two suspects to their office. Bong and Ben voluntarily went with
them.
At the security office, Dio and Buising interviewed Bong and Ben. The suspects
admitted that they took the lamp but clarified that they were only transferring it to a post
nearer to the house of Lolita.[12] Soon, Navia arrived and Buising informed him that the
complainant was not keen in participating in the investigation. Since there was no
complainant, Navia ordered the release of Bong and Ben. Bong then signed a statement
to the effect that the guards released him without inflicting any harm or injury to him.
[13]
His mother Lolita also signed the logbook below an entry which states that she will
never again harbor or entertain Ben in her house. Thereafter, Lolita and Bong left the
security office.
Ben was left behind as Navia was still talking to him about those who might be
involved in the reported loss of electric wires and lamps within the subdivision. After a
brief discussion though, Navia allowed Ben to leave. Ben also affixed his signature on
the logbook to affirm the statements entered by the guards that he was released unharmed
and without any injury.[14]
Upon Navias instructions, Dio and Buising went back to the house of Lolita to
make her sign the logbook as witness that they indeed released Ben from their
custody. Lolita asked Buising to read aloud that entry in the logbook where she was
being asked to sign, to which Buising obliged. Not contented, Lolita put on her reading

glasses and read the entry in the logbook herself before affixing her signature
therein. After which, the guards left.
Subsequently, petitioners received an invitation[15] from the Malolos City Police Station
requesting them to appear thereat on April 17, 2008 relative to the complaint of Virginia
Pardico (Virginia) about her missing husband Ben. In compliance with the invitation, all
three petitioners appeared at the Malolos City Police Station. However,
since Virginia was not present despite having received the same invitation, the meeting
was reset to April 22, 2008.[16]
On April 22, 2008, Virginia attended the investigation. Petitioners informed her that they
released Ben and that they have no information as to his present whereabouts. [17] They
assuredVirginia though that they will cooperate and help in the investigation of her
missing husband.[18]
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They were
unlawfully arrested, shoved into the Asian Land vehicle and brought to the security
office for investigation.Upon seeing Ben at the security office, Navia lividly
grumbled Ikaw na naman?[19] and slapped him while he was still seated. Ben begged for
mercy, but his pleas were met with a flurry of punches coming from Navia hitting him on
different parts of his body.[20] Navia then took hold of his gun, looked at Bong, and
said, Wala kang nakita at wala kang narinig, papatayin ko na si Ben.[21]
Bong admitted that he and Ben attempted to take the lamp. He explained that the
area where their house is located is very dark and his father had long been asking the
administrator of Grand Royale Subdivision to install a lamp to illumine their area. But
since nothing happened, he took it upon himself to take a lamp from one of the posts in
the subdivision and transfer it to a post near their house. However, the lamp Bong got
was no longer working. Thus, he reinstalled it on the post from which he took it and no
longer pursued his plan. [22]
Later on, Lolita was instructed to sign an entry in the guards logbook where she
undertook not to allow Ben to stay in her house anymore. [23] Thereafter, Navia again
asked Lolita to sign the logbook. Upon Lolitas inquiry as to why she had to sign again,
Navia explained that they needed proof that they released her son Bong unharmed but
that Ben had to stay as the latters case will be forwarded to the barangay. Since she has
poor eyesight, Lolita obligingly signed the logbook without reading it and then left with

Bong.[24] At that juncture, Ben grabbed Bong and pleaded not to be left alone. However,
since they were afraid of Navia, Lolita and Bong left the security office at once leaving
Ben behind.[25]
Moments after Lolita and Bong reached their house, Buising arrived and asked
Lolita to sign the logbook again. Lolita asked Buising why she had to sign again when
she already twice signed the logbook at the headquarters. Buising assured her that what
she was about to sign only pertains to Bongs release. Since it was dark and she has poor
eyesight, Lolita took Buisings word and signed the logbook without, again, reading what
was written in it. [26]
The following morning, Virginia went to the Asian Land security office to visit
her husband Ben, but only to be told that petitioners had already released him together
with Bong the night before. She then looked for Ben, asked around, and went to
the barangay. Since she could not still find her husband, Virginia reported the matter to
the police.
In the course of the investigation on Bens disappearance, it dawned upon Lolita
that petitioners took advantage of her poor eyesight and naivete. They made her sign the
logbook as a witness that they already released Ben when in truth and in fact she never
witnessed his actual release. The last time she saw Ben was when she left him in
petitioners custody at the security office.[27]
Exasperated with the mysterious disappearance of her husband, Virginia filed a Petition
for Writ of Amparo[28] before the RTC of Malolos City. Finding the petition sufficient in
form and substance, the amparo court issued an Order[29] dated June 26, 2008 directing,
among others, the issuance of a writ of amparo and the production of the body of Ben
before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution
[in] A.M. No. 07-[9]-12-SC, also known as The Rule On The Writ Of Amparo, let a writ
of amparo be issued, as follows:
(1)

ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew


Buising of the Asian Land Security Agency to produce before the Court the
body of aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30
a.m.;

(2)

ORDERING the holding of a summary hearing of the petition on the


aforementioned date and time, and DIRECTING the [petitioners] to
personally appear thereat;

(3)

COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew


Buising to file, within a non-extendible period of seventy-two (72) hours
from service of the writ, a verified written return with supporting affidavits
which shall, among other things, contain the following:
a) The lawful defenses to show that the [petitioners] did not violate or threaten
with violation the right to life, liberty and security of the aggrieved party,
through any act or omission;

(4)

b)

The steps or actions taken by the [petitioners] to determine the fate


or whereabouts of the aggrieved party and the person or persons
responsible for the threat, act or omission; and

c)

All relevant information in the possession of the [petitioners] pertaining


to the threat, act or omission against the aggrieved party.

GRANTING, motu proprio, a Temporary Protection Order prohibiting the


[petitioners], or any persons acting for and in their behalf, under pain of
contempt, from threatening, harassing or inflicting any harm to [respondent],
his immediate family and any [member] of his household.

The Branch Sheriff is directed to immediately serve personally on the [petitioners], at


their address indicated in the petition, copies of the writ as well as this order, together
with copies of the petition and its annexes.[30]

A Writ of Amparo[31] was accordingly issued and served on the petitioners on June
27, 2008.[32] On June 30, 2008, petitioners filed their Compliance[33] praying for the denial
of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the testimony
of Buising, while Virginia submitted the sworn statements[34] of Lolita and Enrique
which the two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision [35] granting the petition. It
disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and
deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to
immediately conduct a deep and thorough investigation of the [petitioners] Edgardo

Navia, Ruben Dio and Andrew Buising in connection with the circumstances
surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as part of the
investigation, the documents forming part of the records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and
the witnesses who testified in this case protection as it may deem necessary to secure
their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to
investigate the circumstances concerning the legality of the arrest of [Benhur] Pardico by
the [petitioners] in this case, utilizing in the process, as part of said investigation, the
pertinent documents and admissions forming part of the record of this case, and take
whatever course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the Office of Director
Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED.[36]

Petitioners filed a Motion for Reconsideration[37] which was denied by the trial court in an
Order[38] dated August 29, 2008.
Hence, this petition raising the following issues for our consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY
ERRED IN RULING THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF
THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE
COMMITTING ACTS IN VIOLATION OF HER HUSBANDS RIGHT TO
LIFE, LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF BENHUR
PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF BENHUR
PARDICO WAS AT THE INSTANCE OF HEREIN PETITIONERS.[39]

Petitioners Arguments

Petitioners essentially assail the sufficiency of the amparo petition. They contend
that the writ of amparo is available only in cases where the factual and legal bases of the
violation or threatened violation of the aggrieved partys right to life, liberty and security
are clear. Petitioners assert that in the case at bench, Virginia miserably failed to establish
all these. First, the petition is wanting on its face as it failed to state with some degree of
specificity the alleged unlawful act or omission of the petitioners constituting a violation
of or a threat to Bens right to life, liberty and security. And second, it cannot be deduced
from the evidence Virginia adduced that Ben is missing; or that petitioners had a hand in
his alleged disappearance. On the other hand, the entries in the logbook which bear the
signatures of Ben and Lolita are eloquent proof that petitioners released Ben on March
31, 2008 at around 10:30 p.m. Petitioners thus posit that the trial court erred in issuing the
writ and in holding them responsible for Bens disappearance.
Our Ruling
Virginias Petition for Writ of Amparo is fatally defective and must perforce be dismissed,
but not for the reasons adverted to by the petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to
arrest the rampant extralegal killings and enforced disappearances in the country. Its
purpose is to provide an expeditious and effective relief 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. [40]
Here, Bens right to life, liberty and security is firmly settled as the parties do not
dispute his identity as the same person summoned and questioned at petitioners security
office on the night of March 31, 2008. Such uncontroverted fact ipso facto established
Bens inherent and constitutionally enshrined right to life, liberty and security. Article
6[41] of the International Covenant on Civil and Political Rights [42] recognizes every
human beings inherent right to life, while Article 9 [43] thereof ordains that everyone has
the right to liberty and security. The right to life must be protected by law while the right
to liberty and security cannot be impaired except on grounds provided by and in
accordance with law. This overarching command against deprivation of life, liberty and
security without due process of law is also embodied in our fundamental law.[44]

The pivotal question now that confronts us is whether Bens disappearance as


alleged in Virginias petition and proved during the summary proceedings conducted
before the court a quo, falls within the ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available to
any person whose right to life, liberty and security is violated or threatened with violation
by an unlawful act or omission of a public official or employee, or of a private individual
or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof. (Emphasis ours.)

While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does not, however,
define extralegal killings and enforced disappearances. This omission was intentional as
the Committee on Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC
chose to allow it to evolve through time and jurisprudence and through substantive laws
as may be promulgated by Congress.[45] Then, the budding jurisprudence
on amparo blossomed in Razon, Jr. v. Tagitis[46] when this Court defined enforced
disappearances. The Court in that case applied the generally accepted principles of
international law and adopted the International Convention for the Protection of All
Persons from Enforced Disappearances definition of enforced disappearances, as the
arrest, detention, abduction or any other form of deprivation of liberty by agents of the
State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law.[47]
Not long thereafter, another significant development affecting A.M. No. 07-9-12SC came about after Congress enacted Republic Act (RA) No. 9851 [48] on December 11,
2009. Section 3(g) thereof defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization,
support or acquiescence of, a State or a political organization
followed by a refusal to acknowledge that deprivation of freedom or
to give information on the fate or whereabouts of those persons, with

the intention of removing from the protection of the law for a


prolonged period of time.

Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo D. Brion wrote


in his Separate Opinion that with the enactment of RA No. 9851, the Rule on the Writ
of Amparo is now a procedural law anchored, not only on the constitutional rights to the
rights to life, liberty and security, but on a concrete statutory definition as well of what an
enforced or involuntary disappearance is.[50] Therefore, A.M. No. 07-9-12-SCs reference
to enforced disappearances should be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g) of RA No. 9851. Meaning, in
probing enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in
relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we can derive the
following elements that constitute it:
(a)

that there be an arrest, detention, abduction or any form of deprivation of liberty;

(b)

that it be carried out by, or with the authorization, support or acquiescence of, the
State or a political organization;

(c)

that it be followed by the State or political organizations refusal to acknowledge or


give information on the fate or whereabouts of the person subject of
the amparo petition; and,

(d)

that the intention for such refusal is to remove subject person from the protection
of the law for a prolonged period of time.

As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation
and proof that the persons subject thereof are missing are not enough. It must also be
shown and proved by substantial evidence that the disappearance was carried out by, or
with the authorization, support or acquiescence of, the State or a political organization,
followed by a refusal to acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of removing them from the
protection of the law for a prolonged period of time. Simply put, the petitioner in
an amparo case has the burden of proving by substantial evidence the indispensable
element of government participation.

In the present case, we do not doubt Bongs testimony that Navia had a menacing
attitude towards Ben and that he slapped and inflicted fistic blows upon him. Given the
circumstances and the pugnacious character of Navia at that time, his threatening
statement, Wala kang nakita at wala kang narinig, papatayin ko na si Ben, cannot be
taken lightly. It unambiguously showed his predisposition at that time. In addition, there
is nothing on record which would support petitioners assertion that they released Ben on
the night of March 31, 2008 unscathed from their wrath. Lolita sufficiently explained
how she was prodded into affixing her signatures in the logbook without reading the
entries therein. And so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never identified or presented in
court and whose complaint was never reduced in writing.
But lest it be overlooked, in an amparo petition, proof of disappearance alone is
not enough. It is likewise essential to establish that such disappearance was carried out
with the direct or indirect authorization, support or acquiescence of the government. This
indispensable element of State participation is not present in this case. The petition does
not contain any allegation of State complicity, and none of the evidence presented tend to
show that the government or any of its agents orchestrated Bens disappearance. In fact,
none of its agents, officials, or employees were impleaded or implicated
in Virginias amparo petition whether as responsible or accountable persons. [51] Thus, in
the absence of an allegation or proof that the government or its agents had a hand in Bens
disappearance or that they failed to exercise extraordinary diligence in investigating his
case,
the
Court
will definitely not hold the government or its agents either asresponsible or
accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may
lie against a private individual or entity. But even if the person sought to be held
accountable or responsible in an amparo petition is a private individual or entity, still,
government involvement in the disappearance remains an indispensable element. Here,
petitioners are mere security guards at Grand Royale Subdivision in Brgy.
Lugam, Malolos City and their principal, the Asian Land, is a private entity. They do not
work for the government and nothing has been presented that would link or connect them
to some covert police, military or governmental operation. As discussed above, to fall
within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance
must be attended by some governmental involvement. This hallmark of State
participation differentiates an enforced disappearance case from an ordinary case of a
missing person.

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

LOURDES D. RUBRICO, JEAN


RUBRICO APRUEBO, and MARY
JOY RUBRICO CARBONEL,
Petitioners,
- versus GLORIA MACAPAGALARROYO, GEN. HERMOGENES
ESPERON, P/DIR. GEN.
AVELINO RAZON, MAJ.
DARWIN SY a.k.a. DARWIN
REYES, JIMMY SANTANA,
RUBEN ALFARO, CAPT.
ANGELO CUARESMA, a certain
JONATHAN, P/SUPT. EDGAR B.
ROQUERO, ARSENIO C.
GOMEZ, and OFFICE OF THE
OMBUDSMAN,
Respondents.

G.R. No. 183871


Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,*
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
Promulgated:

February 18, 2010


x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
In this petition for review under Rule 45 of the Rules of Court in relation to
Section 19[1] of the Rule on the Writ of Amparo[2] (Amparo Rule), Lourdes D.
Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and seek to
set aside the Decision[3] of the Court of Appeals (CA) dated July 31, 2008 in CAG.R. SP No. 00003, a petition commenced under the Amparo Rule.
The petition for the writ of amparo dated October 25, 2007 was originally
filed before this Court. After issuing the desired writ and directing the respondents
to file a verified written return, the Court referred the petition to the CA for

summary hearing and appropriate action. The petition and its attachments
contained, in substance, the following allegations:
1. On April 3, 2007, armed men belonging to the 301 st Air
Intelligence and Security Squadron (AISS, for short) based in Fernando
Air Base in Lipa City abducted Lourdes D. Rubrico (Lourdes), then
attending a Lenten pabasa in Bagong Bayan, Dasmarias, Cavite, and
brought to, and detained at, the air base without charges. Following a
week of relentless interrogation - conducted alternately by hooded
individuals - and what amounts to verbal abuse and mental harassment,
Lourdes, chair of the Ugnayan ng Maralita para sa Gawa Adhikan, was
released at Dasmarias, Cavite, her hometown, but only after being made
to sign a statement that she would be a military asset.
After Lourdes release, the harassment, coming in the form of
being tailed on at least two occasions at different places, i.e., Dasmarias,
Cavite and Baclaran in Pasay City, by motorcycle-riding men in bonnets,
continued;
2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez
(P/Insp. Gomez), then sub-station commander of Bagong Bayan,
Dasmarias, Cavite, kept sending text messages to Lourdes daughter,
Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking
her questions about Karapatan, an alliance of human rights
organizations. He, however, failed to make an investigation even
after Lourdes disappearance had been made known to him;
3. A week after Lourdes release, another daughter, Jean R.
Apruebo (Jean), was constrained to leave their house because of the
presence of men watching them;
4. Lourdes has filed with the Office of the Ombudsman a criminal
complaint for kidnapping and arbitrary detention and administrative
complaint for gross abuse of authority and grave misconduct against
Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy
Santana (Santana) and a certain Jonathan, c/o Headquarters 301 st AISS,
Fernando Air Base and Maj. Sy/Reyes with address at No. 09
Amsterdam Ext., Merville Subd., Paraaque City, but nothing has
happened; and the threats and harassment incidents have been reported
to the Dasmarias municipal and Cavite provincial police stations, but
nothing eventful resulted from their respective investigations.

Two of the four witnesses to Lourdes abduction went into hiding


after being visited by government agents in civilian clothes; and
5. Karapatan conducted an investigation on the incidents. The
investigation would indicate that men belonging to the Armed Forces of
the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air
Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led
the abduction of Lourdes; that unknown to the abductors, Lourdes was
able to pilfer a mission order which was addressed to CA Ruben Alfaro
and signed by Capt. Cuaresma of the PAF.

The petition prayed that a writ of amparo issue, ordering the individual respondents
to desist from performing any threatening act against the security of the petitioners
and for the Office of the Ombudsman (OMB) to immediately file an information
for kidnapping qualified with the aggravating circumstance of gender of the
offended party. It also prayed for damages and for respondents to produce
documents submitted to any of them on the case of Lourdes.
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen.
Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief of Staff,
Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine National
Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the Cavite Police
Provincial Office, Police Inspector (P/Insp.) Gomez, now retired, and the OMB
(answering respondents, collectively) filed, through the Office of the Solicitor
General (OSG), a joint return on the writspecifically denying the material
inculpatory averments against them. The OSG also denied the allegations against
the following impleaded persons, namely: Cuaresma, Alfaro, Santana, Jonathan,
and Sy/Reyes, for lack of knowledge or information sufficient to form a belief as to
the allegations truth. And by way of general affirmative defenses, answering
respondents interposed the following defenses: (1) the President may not be sued
during her incumbency; and (2) the petition is incomplete, as it fails to indicate the
matters required by Sec. 5(d) and (e) of the Amparo Rule.[4]
Attached to the return were the affidavits of the following, among other
public officials, containing their respective affirmative defenses and/or statements
of what they had undertaken or committed to undertake regarding the claimed

disappearance of Lourdes and the harassments made to bear on her and her
daughters:
1. Gen. Esperon attested that, pursuant to a directive of then Secretary
of National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the
Commanding General of the PAF, with information to all concerned
units, to conduct an investigation to establish the circumstances behind
the disappearance and the reappearance of Lourdes insofar as the
involvement of alleged personnel/unit is concerned. The Provost
Marshall General and the Office of the Judge Advocate General (JAGO),
AFP, also undertook a parallel action.
Gen. Esperon manifested his resolve to provide the CA with
material results of the investigation; to continue with the probe on the
alleged abduction of Lourdes and to bring those responsible, including
military personnel, to the bar of justice when warranted by the findings
and the competent evidence that may be gathered in the investigation
process by those mandated to look into the matter; [5]
2. P/Dir. Gen. Razon - stated that an investigation he immediately
ordered upon receiving a copy of the petition is on-going vis--vis
Lourdes abduction, and that a background verification with the PNP
Personnel Accounting and Information System disclosed that the names
Santana, Alfaro, Cuaresma and one Jonathan do not appear in the police
personnel records, although the PNP files carry the name of Darwin
Reyes Y. Muga.
Per the initial investigation report of the Dasmarias municipal police
station, P/Dir. Gen. Razon disclosed, Lourdes was abducted by six armed
men in the afternoon of April 3, 2007 and dragged aboard a Toyota Revo
with plate number XRR 428, which plate was issued for a Mitsubishi
van to AK Cottage Industry with address at 9 Amsterdam St., Merville
Subd., Paraaque City. The person residing in the apartment on that given
address is one Darius/Erwin See @ Darius Reyes allegedly working, per
the latters house helper, in Camp Aguinaldo.
P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico
never contacted nor coordinated with the local police or other
investigating units of the PNP after her release, although she is in the
best position to establish the identity of her abductors and/or provide
positive description through composite sketching. Nonetheless, he

manifested that the PNP is ready to assist and protect the petitioners and
the key witnesses from threats, harassments and intimidation from
whatever source and, at the same time, to assist the Court in the
implementation of its orders.[6]
3. P/Supt. Roquero stated conducting, upon receipt of Lourdes
complaint, an investigation and submitting the corresponding report to
the PNP Calabarzon, observing that neither Lourdes nor her relatives
provided the police with relevant information;
4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses
refused to cooperate with the investigating Cavite PNP; and
5. Overall Deputy Ombudsman Orlando Casimiro - alleged
that cases for violation of Articles 267 and 124, or kidnapping and
arbitrary detention, respectively, have been filed with, and are under
preliminary investigation by the OMB against those believed to be
involved in Lourdes kidnapping; that upon receipt of the petition for a
writ of amparo, proper coordination was made with the Office of the
Deputy Ombudsman for the Military and other Law Enforcement Offices
(MOLEO) where the subject criminal and administrative complaints
were filed.

Commenting on the return, petitioners pointed out that the return was no more than
a general denial of averments in the petition. They, thus, pleaded to be allowed to
present evidence ex parte against the President, Santana, Alfaro, Capt. Cuaresma,
Darwin Sy, and Jonathan. And with leave of court, they also asked to serve notice
of the petition through publication, owing to their failure to secure the current
address of the latter five and thus submit, as the CA required, proof of service of
the petition on them.
The hearing started on November 13, 2007.[7] In that setting, petitioners counsel
prayed for the issuance of a temporary protection order (TPO) against the
answering respondents on the basis of the allegations in the petition. At the hearing
of November 20, 2007, the CA granted petitioners motion that the petition and writ
be served by the courts process server on Darwin Sy/Reyes, Santana, Alfaro, Capt.
Cuaresma, and Jonathan.

The legal skirmishes that followed over the propriety of excluding President
Arroyo from the petition, petitioners motions for service by publication, and the
issuance of a TPO are not of decisive pertinence in this recital. The bottom line is
that, by separate resolutions, the CA dropped the President as respondent in the
case; denied the motion for a TPO for the courts want of authority to issue it in the
tenor sought by petitioners; and effectively denied the motion for notice by
publication owing to petitioners failure to submit the affidavit required under Sec.
17, Rule 14 of the Rules of Court.[8]
After due proceedings, the CA rendered, on July 31, 2008, its partial judgment,
subject of this review, disposing of the petition but only insofar as the answering
respondents were concerned. The fallo of the CA decision reads as follows:
WHEREFORE, premises considered, partial judgment is hereby
rendered DISMISSING the instant petition with respect to respondent
Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B.
Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the
Ombudsman.
Nevertheless, in order that petitioners complaint will not end up as
another unsolved case, the heads of the Armed Forces of
the Philippines and the Philippine National Police are directed to ensure
that the investigations already commenced are diligently pursued to
bring the perpetrators to justice. The Chief of Staff of the Armed Forces
of the Philippines and P/Dir. Gen. Avelino Razon are directed to
regularly update petitioners and this Court on the status of their
investigation.
SO ORDERED.

In this recourse, petitioners formulate the issue for resolution in the following wise:
WHETHER OR NOT the [CA] committed reversible error in dismissing
[their] Petition and dropping President Gloria Macapagal Arroyo as party
respondent.

Petitioners first take issue on the Presidents purported lack of immunity from suit
during her term of office. The 1987 Constitution, so they claim, has removed such
immunity heretofore enjoyed by the chief executive under the 1935 and 1973
Constitutions.
Petitioners are mistaken. The presidential immunity from suit remains preserved
under our system of government, albeit not expressly reserved in the present
constitution. Addressing a concern of his co-members in the 1986 Constitutional
Commission on the absence of an express provision on the matter, Fr. Joaquin
Bernas, S.J. observed that it was already understood in jurisprudence that the
President may not be sued during his or her tenure. [9] The Court subsequently made
it abundantly clear in David v. Macapagal-Arroyo, a case likewise resolved under
the umbrella of the 1987 Constitution, that indeed the President enjoys immunity
during her incumbency, and why this must be so:
Settled is the doctrine that the President, during his tenure of office or
actual incumbency, may not be sued in any civil or criminal case, and
there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State,
if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative
and judicial branch, only one constitutes the executive branch and
anything which impairs his usefulness in the discharge of the many great
and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government.[10] x x x

And lest it be overlooked, the petition is simply bereft of any allegation as to what
specific presidential act or omission violated or threatened to violate petitioners
protected rights.
This brings us to the correctness of the assailed dismissal of the petition with
respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and
the OMB.

None of the four individual respondents immediately referred to above has been
implicated as being connected to, let alone as being behind, the alleged abduction
and harassment of petitioner Lourdes. Their names were not even mentioned
in Lourdes Sinumpaang Salaysay[11] of April 2007. The same goes for the
respective Sinumpaang Salaysay and/orKaragdagang Sinumpaang Salaysay of
Jean[12] and Mary Joy.[13]
As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included
in the case on the theory that they, as commanders, were responsible for the
unlawful acts allegedly committed by their subordinates against petitioners. To the
appellate court, the privilege of the writ of amparo must be denied as against Gen.
Esperon and P/Dir. Gen. Razon for the simple reason that petitioners have not
presented evidence showing that those who allegedly abducted and illegally
detained Lourdes and later threatened her and her family were, in fact, members of
the military or the police force. The two generals, the CAs holding broadly hinted,
would have been accountable for the abduction and threats if the actual malefactors
were members of the AFP or PNP.
As regards the three other answering respondents, they were impleaded
because they allegedly had not exerted the required extraordinary diligence in
investigating and satisfactorily resolving Lourdes disappearance or bringing to
justice the actual perpetrators of what amounted to a criminal act, albeit there were
allegations against P/Insp. Gomez of acts constituting threats against Mary Joy.
While in a qualified sense tenable, the dismissal by the CA of the case as against
Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of
the stated rationale underpinning the assailed decision vis--vis the two
generals, i.e., command responsibility. The Court assumes the latter stance owing
to the fact that command responsibility, as a concept defined, developed, and
applied under international law, has little, if at all, bearing in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas,
command responsibility, in its simplest terms, means the responsibility of
commanders for crimes committed by subordinate members of the armed forces or
other persons subject to their control in international wars or domestic conflict.

[14]

In this sense, command responsibility is properly a form of criminal complicity.


The Hague Conventions of 1907 adopted the doctrine of command responsibility,
[15]
foreshadowing the present-day precept of holding a superior accountable for the
atrocities committed by his subordinates should he be remiss in his duty of control
over them. As then formulated, command responsibility is an omission mode of
individual criminal liability, whereby the superior is made responsible forcrimes
committed by his subordinates for failing to prevent or punish the
perpetrators[16] (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute [17] of the
International Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of
the Statute imposes individual responsibility on military commanders for crimes
committed by forces under their control. The country is, however, not yet formally
bound by the terms and provisions embodied in this treaty-statute, since the Senate
has yet to extend concurrence in its ratification.[18]
While there are several pending bills on command responsibility,[19] there is
still no Philippine law that provides for criminal liability under that doctrine.[20]
It may plausibly be contended that command responsibility, as legal basis to
hold military/police commanders liable for extra-legal killings, enforced
disappearances, or threats, may be made applicable to this jurisdiction on the
theory that the command responsibility doctrine now constitutes a principle of
international law or customary international law in accordance with the
incorporation clause of the Constitution.[21] Still, it would be inappropriate to apply
to these proceedings the doctrine of command responsibility, as the CA seemed to
have done, as a form of criminal complicity through omission, for individual
respondents criminal liability, if there be any, is beyond the reach of amparo. In
other words, the Court does not rule in such proceedings on any issue of criminal
culpability, even if incidentally a crime or an infraction of an administrative rule
may have been committed. As the Court stressed in Secretary of National Defense
v. Manalo (Manalo),[22] the writ of amparo was conceived to provide expeditious
and effective procedural relief against violations or threats of violation of the basic
rights to life, liberty, and security of persons; the corresponding amparo suit,
however, is not an action to determine criminal guilt requiring proof beyond
reasonable doubt x x x or administrative liability requiring substantial evidence
that will require full and exhaustive proceedings.[23] Of the same tenor, and by way

of expounding on the nature and role of amparo, is what the Court said in Razon v.
Tagitis:
It does not determine guilt nor pinpoint criminal culpability for
the disappearance [threats thereof or extra-judicial killings]; it
determines responsibility, or at least accountability, for the enforced
disappearance [threats thereof or extra-judicial killings] for purposes of
imposing the appropriate remedies to address the disappearance [or
extra-judicial killings].
xxxx
As the law now stands, extra-judicial killings and enforced
disappearances in this jurisdiction are not crimes penalized separately
from the component criminal acts undertaken to carry out these killings
and enforced disappearances and are now penalized under the Revised
Penal Code and special laws. The simple reason is that the Legislature
has not spoken on the matter; the determination of what acts are criminal
x x x are matters of substantive law that only the Legislature has the
power to enact.[24] x x x

If command responsibility were to be invoked and applied to these


proceedings, it should, at most, be only to determine the author who, at the first
instance, is accountable for, and has the duty to address, the disappearance and
harassments complained of, so as to enable the Court to devise remedial measures
that may be appropriate under the premises to protect rights covered by the writ
of amparo. As intimated earlier, however, the determination should not be pursued
to fix criminal liability on respondents preparatory to criminal prosecution, or as a
prelude to administrative disciplinary proceedings under existing administrative
issuances, if there be any.
Petitioners, as the CA has declared, have not adduced substantial evidence
pointing to government involvement in the disappearance of Lourdes. To a
concrete point, petitioners have not shown that the actual perpetrators of the
abduction and the harassments that followed formally or informally formed part of
either the military or the police chain of command. A preliminary police
investigation report, however, would tend to show a link, however hazy, between
the license plate (XRR 428) of the vehicle allegedly used in the abduction of

Lourdes and the address of Darwin Reyes/Sy, who was alleged to be working in
Camp Aguinaldo.[25] Then, too, there were affidavits and testimonies on events that
transpired which, if taken together, logically point to military involvement in the
alleged disappearance of Lourdes, such as, but not limited to, her abduction in
broad daylight, her being forcibly dragged to a vehicle blindfolded and then being
brought to a place where the sounds of planes taking off and landing could be
heard. Mention may also be made of the fact that Lourdes was asked about her
membership in the Communist Party and of being released when she agreed to
become an asset.
Still and all, the identities and links to the AFP or the PNP of the alleged
abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to
be established.
Based on the separate sworn statements of Maj. Paul Ciano [26] and Technical
Sergeant John N. Romano,[27] officer-in-charge and a staff of the 301st AISS,
respectively, none of the alleged abductors of Lourdes belonged to the 301st AISS
based in San Fernando Air Base. Neither were they members of any unit of the
Philippine Air Force, per the certification[28] of Col. Raul Dimatactac, Air Force
Adjutant. And as stated in the challenged CA decision, a verification with the
Personnel Accounting and Information System of the PNP yielded the information
that, except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e.,
Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP.
Petitioners, when given the opportunity to identify Police Officer 1 Darwin Reyes
y Muga, made no effort to confirm if he was the same Maj. Darwin
Reyes a.k.a.Darwin Sy they were implicating in Lourdes abduction.
Petitioners, to be sure, have not successfully controverted answering
respondents documentary evidence, adduced to debunk the formers allegations
directly linkingLourdes abductors and tormentors to the military or the police
establishment. We note, in fact, that Lourdes, when queried on cross-examination,
expressed the belief that Sy/Reyes was an NBI agent. [29] The Court is, of course,
aware of what was referred to in Razon[30] as the evidentiary difficulties presented
by the nature of, and encountered by petitioners in, enforced disappearance cases.
But it is precisely for this reason that the Court should take care too that no wrong

message is sent, lest one conclude that any kind or degree of evidence, even the
outlandish, would suffice to secure amparo remedies and protection.
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly
prescribes the minimum evidentiary substantiation requirement and norm to
support a cause of action under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.The
parties shall establish their claims by substantial evidence.
xxxx
Sec. 18. Judgment.x x x 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 added.)

Substantial evidence is more than a mere imputation of wrongdoing or


violation that would warrant a finding of liability against the person charged; [31] it
is more than a scintilla of evidence. It means such amount of relevant evidence
which a reasonable mind might accept as adequate to support a conclusion, even if
other equally reasonable minds might opine otherwise. [32] Per the CAs evaluation
of their evidence, consisting of the testimonies and affidavits of the three Rubrico
women and five other individuals, petitioners have not satisfactorily hurdled the
evidentiary bar required of and assigned to them under the Amparo Rule. In a very
real sense, the burden of evidence never even shifted to answering
respondents. The Court finds no compelling reason to disturb the appellate courts
determination of the answering respondents role in the alleged enforced
disappearance of petitioner Lourdes and the threats to her familys security.
Notwithstanding the foregoing findings, the Court notes that both Gen.
Esperon and P/Dir. Gen. Razon, per their separate affidavits, lost no time, upon
their receipt of the order to make a return on the writ, in issuing directives to the
concerned units in their respective commands for a thorough probe of the case and
in providing the investigators the necessary support. As of this date, however, the

investigations have yet to be concluded with some definite findings and


recommendation.
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than
satisfied that they have no direct or indirect hand in the alleged enforced
disappearance of Lourdesand the threats against her daughters. As police officers,
though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a
duty that would include looking into the cause, manner, and like details of the
disappearance; identifying witnesses and obtaining statements from them; and
following evidentiary leads, such as the Toyota Revo vehicle with plate number
XRR 428, and securing and preserving evidence related to the abduction and the
threats that may aid in the prosecution of the person/s responsible. As we said
in Manalo,[33] the right to security, as a guarantee of protection by the government,
is breached by the superficial and one-sidedhence, ineffectiveinvestigation by the
military or the police of reported cases under their jurisdiction. As found by the
CA, the local police stations concerned, including P/Supt. Roquero and P/Insp.
Gomez, did conduct a preliminary fact-finding on petitioners complaint. They
could not, however, make any headway, owing to what was perceived to be the
refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners counsel,
Atty. Rex J.M.A. Fernandez, provided a plausible explanation for his clients and
their witnesses attitude, [They] do not trust the government agencies to protect
them.[34] The difficulty arising from a situation where the party whose complicity
in extra-judicial killing or enforced disappearance, as the case may be, is alleged to
be the same party who investigates it is understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses to
cooperate ought not to pose a hindrance to the police in pursuing, on its own
initiative, the investigation in question to its natural end. To repeat what the Court
said in Manalo, the right to security of persons is a guarantee of the protection of
ones right by the government. And this protection includes conducting effective
investigations of extra-legal killings, enforced disappearances, or threats of the
same kind. The nature and importance of an investigation are captured in
the Velasquez Rodriguez case,[35] in which the Inter-American Court of Human
Rights pronounced:

[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 a step taken by private interests that depends
upon the initiative of the victim or his family or upon offer of proof,
without an effective search for the truth by the government. (Emphasis
added.)

This brings us to Mary Joys charge of having been harassed by respondent


P/Insp. Gomez. With the view we take of this incident, there is nothing concrete to
support the charge, save for Mary Joys bare allegations of harassment. We cite with
approval the following self-explanatory excerpt from the appealed CA decision:
In fact, during her cross-examination, when asked what specific
act or threat P/Sr. Gomez (ret) committed against her or her mother and
sister, Mary Joy replied None [36]

Similarly, there appears to be no basis for petitioners allegations about the OMB
failing to act on their complaint against those who allegedly abducted and illegally
detainedLourdes. Contrary to petitioners contention, the OMB has taken the
necessary appropriate action on said complaint. As culled from the affidavit [37] of
the Deputy Overall Ombudsman and the joint affidavits [38] of the designated
investigators, all dated November 7, 2007, the OMB had, on the basis of said
complaint, commenced criminal[39] and administrative[40] proceedings, docketed as
OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma,
Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission
of counter-affidavits and verified position papers had been sent out.
The privilege of the writ of amparo, to reiterate, is a remedy available to
victims of extra-judicial killings and enforced disappearances or threats of similar
nature, regardless of whether the perpetrator of the unlawful act or omission is a
public official or employee or a private individual.
At this juncture, it bears to state that petitioners have not provided the CA with the
correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and
Sy/Reyes. The mailed envelopes containing the petition for a writ of amparo
individually addressed to each of them have all been returned unopened. And

petitioners motion interposed before the appellate court for notice or


service via publication has not been accompanied by supporting affidavits as
required by the Rules of Court. Accordingly, the appealed CA partial
judgmentdisposing of the underlying petition for a writ of amparo without (1)
pronouncement as to the accountability, or lack of it, of the four non-answering
respondents or (2) outright dismissal of the same petition as to themhews to the
prescription of Sec. 20 of the Amparo Rule on archiving and reviving cases.
[41]
Parenthetically, petitioners have also not furnished this Court with sufficient
data as to where the afore-named respondents may be served a copy of their
petition for review.
Apart from the foregoing considerations, the petition did not allege ultimate facts
as would link the OMB in any manner to the violation or threat of violation of the
petitioners rights to life, liberty, or personal security.
The privilege of the writ of amparo is envisioned basically to protect and guarantee
the rights to life, liberty, and security of persons, free from fears and threats that
vitiate the quality of this life.[42] It is an extraordinary writ conceptualized and
adopted in light of and in response to the prevalence of extra-legal killings and
enforced disappearances.[43]Accordingly, the remedy ought to be resorted to and
granted judiciously, lest the ideal sought by the Amparo Rule be diluted and
undermined by the indiscriminate filing of amparo petitions for purposes less than
the desire to secure amparo reliefs and protection and/or on the basis of
unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main prayer,
that the Court order the impleaded respondents to immediately desist from doing
any acts that would threaten or seem to threaten the security of the Petitioners and
to desist from approaching Petitioners, x x x their residences and offices where
they are working under pain of contempt of [this] Court. Petitioners, however,
failed to adduce the threshold substantive evidence to establish the predicate facts
to support their cause of action, i.e., the adverted harassments and threats to their
life, liberty, or security, against responding respondents, as responsible for the
disappearance and harassments complained of. This is not to say, however, that
petitioners allegation on the fact of the abduction incident or harassment is
necessarily contrived. The reality on the ground, however, is that the military or

police connection has not been adequately proved either by identifying the
malefactors as components of the AFP or PNP; or in case identification is not
possible, by showing that they acted with the direct or indirect acquiescence of the
government. For this reason, the Court is unable to ascribe the authorship of and
responsibility for the alleged enforced disappearance of Lourdes and the
harassment and threats on her daughters to individual respondents. To this extent,
the dismissal of the case against them is correct and must, accordingly, be
sustained.
Prescinding from the above considerations, the Court distinctly notes that
the appealed decision veritably extended the privilege of the writ of amparo to
petitioners when it granted what to us are amparo reliefs. Consider: the appellate
court decreed, and rightly so, that the police and the military take specific measures
for the protection of petitioners right or threatened right to liberty or security. The
protection came in the form of directives specifically to Gen. Esperon and P/Dir.
Gen. Razon, requiring each of them (1) to ensure that the investigations already
commenced by the AFP and PNP units, respectively, under them on the complaints
of Lourdes and her daughters are being pursued with urgency to bring to justice the
perpetrators of the acts complained of; and (2) to submit to the CA, copy furnished
the petitioners, a regular report on the progress and status of the investigations. The
directives obviously go to Gen. Esperon in his capacity as head of the AFP and, in
a sense, chief guarantor of order and security in the country. On the other hand,
P/Dir. Gen. Razon is called upon to perform a duty pertaining to the PNP, a crimepreventing, investigatory, and arresting institution.
As the CA, however, formulated its directives, no definitive time frame was
set in its decision for the completion of the investigation and the reportorial
requirements. It also failed to consider Gen. Esperon and P/Dir. Gen. Razons
imminent compulsory retirement from the military and police services,
respectively. Accordingly, the CA directives, as hereinafter redefined and amplified
to fully enforce the amparo remedies, are hereby given to, and shall be directly
enforceable against, whoever sits as the commanding general of the AFP and the
PNP.
At this stage, two postulates and their implications need highlighting for a
proper disposition of this case.

First, a criminal complaint for kidnapping and, alternatively, for arbitrary


detention rooted in the same acts and incidents leading to the filing of the subject
amparo petition has been instituted with the OMB, docketed as OMB-P-C-O70602-E. The usual initial steps to determine the existence of a prima facie case
against the five (5) impleaded individuals suspected to be actually involved in the
detention of Lourdes have been set in motion. It must be pointed out, though, that
the filing[44] of the OMB complaint came before the effectivity of the Amparo Rule
on October 24, 2007.
Second, Sec. 22[45] of the Amparo Rule proscribes the filing of an amparo
petition should a criminal action have, in the meanwhile, been commenced. The
succeeding Sec. 23,[46] on the other hand, provides that when the criminal suit is
filed subsequent to a petition for amparo, the petition shall be consolidated with
the criminal action where the Amparo Rule shall nonetheless govern the
disposition of the relief under the Rule. Under the terms of said Sec. 22, the present
petition ought to have been dismissed at the outset. But as things stand, the outright
dismissal of the petition by force of that section is no longer technically feasible in
light of the interplay of the following factual mix: (1) the Court has, pursuant to
Sec. 6[47] of the Rule, already issued ex parte the writ of amparo; (2) the CA, after a
summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and
(3) the complaint in OMB-P-C-O7-0602-E named as respondents only those
believed to be the actual abductors of Lourdes, while the instant petition
impleaded, in addition, those tasked to investigate the kidnapping and detention
incidents and their superiors at the top. Yet, the acts and/or omissions subject of the
criminal complaint and the amparo petition are so linked as to call for the
consolidation of both proceedings to obviate the mischief inherent in a
multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature of the
writ of amparo as an inexpensive and effective tool to protect certain rights
violated or threatened to be violated, the Court hereby adjusts to a degree the literal
application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation
obtaining under the premises. [48] Towards this end, two things are at once
indicated: (1) the consolidation of the probe and fact-finding aspects of the instant
petition with the investigation of the criminal complaint before the OMB; and (2)

the incorporation in the same criminal complaint of the allegations in this petition
bearing on the threats to the right to security. Withal, the OMB should be furnished
copies of the investigation reports to aid that body in its own investigation and
eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given
easy access to all pertinent documents and evidence, if any, adduced before the
CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should be
allowed, if so minded, to amend her basic criminal complaint if the consolidation
of cases is to be fully effective.

WHEREFORE, the Court PARTIALLY GRANTS this petition for review and
makes a decision:
(1) Affirming the dropping of President Gloria Macapagal-Arroyo from the petition
for a writ of amparo;
(2) Affirming the dismissal of the amparo case as against Gen. Hermogenes
Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the command
responsibility principle, to attach accountability and responsibility to them, as then
AFP Chief of Staff and then PNP Chief, for the alleged enforced disappearance of
Lourdes and the ensuing harassments allegedly committed against petitioners. The
dismissal of the petition with respect to the OMB is also affirmed for failure of the
petition to allege ultimate facts as to make out a case against that body for the
enforced disappearance of Lourdes and the threats and harassment that followed;
and
(3) Directing the incumbent Chief of Staff, AFP, or his successor, and the
incumbent Director-General of the PNP, or his successor, to ensure that the
investigations already commenced by their respective units on the alleged
abduction of Lourdes Rubrico and the alleged harassments and threats she and her
daughters were made to endure are pursued with extraordinary diligence as
required by Sec. 17[49] of the Amparo Rule. They shall order their subordinate
officials, in particular, to do the following:
(a) Determine based on records, past and present, the identities and locations
of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben
Alfaro, Capt. Angelo Cuaresma, and one Jonathan; and submit certifications

of this determination to the OMB with copy furnished to petitioners, the CA,
and this Court;
(b) Pursue with extraordinary diligence the evidentiary leads relating to Maj.
Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428; and
(c) Prepare, with the assistance of petitioners and/or witnesses, cartographic
sketches of respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt.
Angelo Cuaresma, and a certain Jonathan to aid in positively identifying and
locating them.
The investigations shall be completed not later than six (6) months from receipt of
this Decision; and within thirty (30) days after completion of the investigations, the
Chief of Staff of the AFP and the Director-General of the PNP shall submit a full
report of the results of the investigations to the Court, the CA, the OMB, and
petitioners.
This case is accordingly referred back to the CA for the purpose of monitoring the
investigations and the actions of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the partial
judgment dated July 31, 2008 of the CA.
SO ORDERED.

GEN. ALEXANDER B. YANO,


Chief of Staff, Armed Forces of
the Philippines, LT. GEN.
VICTOR
S.
IBRADO,
Commanding General, Philippine
Army, and MAJ. GEN. RALPH
A. VILLANUEVA, Commander,
7th Infantry Division, Philippine
Army,
Petitioners,

- versus -

CLEOFAS
SANCHEZ
MARCIANA MEDINA,
Respondents.

and

G.R. No. 186640


Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
Promulgated:
February 11, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

CARPIO MORALES, J.:


On December 28, 2007, respondent Cleofas Sanchez (Cleofas) filed before
this Court a petition docketed as G.R. No. 180839 for issuance of a Writ
of Amparo with Motion for Production and Inspection directed against Gen.
Hermogenes Esperon (Gen. Esperon), the then Chief of Staff of the Armed Forces
of the Philippines (AFP).
On January 2, 2008, the Court[1] resolved to issue a Writ of Amparo and
ordered Gen. Esperon to make a verified return of the writ before Court of Appeals
Justice Edgardo Sundiam, who was ordered to hear and decide the case which was
eventually redocketed as CA-G.R. SP No. 00010 WR/A.
Cleofas amended her petition[2] on January 14, 2008 to include herein corespondent Marciana Medina (Marciana) as therein additional petitioner, and to
implead other military officers[3] including Lt. Ali Sumangil (Lt. Sumangil) and
Sgt. Gil Villalobos[4] (Sgt. Villalobos) as therein additional respondents.
In the Amended Petition, Cleofas and Marciana (respondents) alleged that on
September 17, 2006 at around 8:00 p.m., their respective sons Nicolas Sanchez and
Heherson Medina were catching frogs outside their home in Sitio Dalin, Barangay
Bueno, Capas, Tarlac; that at around 1:00 a.m. of the next day, September 18,
2006, Nicolas wives Lourdez and Rosalie Sanchez, who were then at home, heard
gunshots and saw armed men in soldiers uniforms passing by; that at around 4:00
a.m. of the same day, Lourdez and Rosalie went out to check on Nicolas and
Heherson but only saw their caps, slippers, pana and airgun for catching frogs, as
well as bloodstains; and that they immediately reported the matter to
the barangay officials.
Respondents narrated that they, together with other family members, proceeded
on September 19, 2006 to the Capas Station of the Philippine National Police
(PNP).Accompanied by officials of the National Commission on Indigenous
Peoples (NCIP),[5] they also tried to search for Nicolas and Heherson at the Camp
Detachment of the 71stInfantry Batallion of the Philippine Army (Army) in
Barangay Burgos, San Jose, Tarlac, and at the Camp of the Bravo Company of the
Armys 71st Infantry Batallion inside Hacienda Luisita, Tarlac City, but to no avail.

Furthermore, respondents alleged that Josephine Galang Victoria, also


known as Antonina Galang (Josephine), niece of a neighbor, later informed them
that she had seen two men inside Camp Servillano Aquino of the Northern Luzon
Command (Nolcom) in San Miguel, Tarlac City on September 21, 2006, whom
Josephine later identified as Nicolas and Heherson (the victims) after respondents
had shown her their photographs; and that Josephine informed them that she saw
the victims again on September 24, 2006 and November 1, 2006, [6] this time at the
Camp of the Bravo Company of the Armys 71 st Infantry Batallion inside Hacienda
Luisita, where she had occasion to talk to Lt. Sumangil and Sgt.
Villalobos. Respondents filed a case on December 21, 2006 before the Commission
on Human Rights (CHR), which endorsed[7] the same to the Ombudsman for
appropriate action.
Contending that the victims life, liberty and security had been and continued
to be violated on account of their forced disappearance, respondents prayed for the
issuance of a writ of Amparo, the production of the victims bodies during the
hearing on the Writ, the inspection of certain military camps, [8] the issuance of
temporary and permanent protection orders, and the rendition of judgment under
Section 18 of the Rule on the Writ of Amparo.[9]
Meanwhile, a consolidated Return of the Writ, [10] verified by Gen. Esperon,
Lt. Sumangil, Sgt. Villalobos, Maj. Gen. Juanito Gomez (Maj. Gen. Gomez) as
Commander of the Armys 7th Infantry Division, and Lt. Col. Victor Bayani (Lt.
Col. Bayani) as Camp Commander of Camp Servillano Aquino of the Nolcom in
Tarlac City, was filed with the appellate court on January 24, 2008. Lt. Gen.
Alexander Yano (Lt. Gen. Yano), Commanding General of the Army, filed a Return
of the Writ upon his return from an official trip abroad.
In their Return, the military officers denied having custody of the
victims. They posited that the proper remedy of respondents was to file a petition
for the issuance of a Writ of Habeas Corpus, since the petitions ultimate objective
was the production of the bodies of the victims, as they were allegedly abducted
and illegally detained by military personnel;[11] that the petition failed to indicate
the matters required by paragraphs (c), (d) and (e), Section 5 of the Rule on the
Writ of Amparo, such that the allegations were incomplete to constitute a cause of

action, aside from being based on mere hearsay evidence, and are, at best,
speculative; that respondents failed to present the affidavits of some other
competent persons which would clearly validate their claim that the military
violated the victims right to life, liberty or security by abducting or detaining them;
and that the petition did not allege any specific action or inaction attributable to the
military officers with respect to their duties; or allege that respondents took any
action by filing a formal complaint or visiting the military camps adverted to in
order to verify Josephines claim that she saw the victims on two different
occasions inside the camps, or that they took efforts to follow up on the PNP Capas
Stations further action on their complaint.[12]
Denying he violated the victims right to life, liberty and
security, Gen. Esperon specifically asserted that, in compliance with the Defense
Secretarys directive in relation to cases of Writ of Amparo against the AFP, he
issued directives to the Nolcom Commander and the Armys Commanding General
to investigate and establish the circumstances surrounding reported disappearances
of victims insofar as the claim on the possible involvement of the military units
was concerned; and undertook to bring any military personnel involved, when
warranted by the evidence, to the bar of justice.[13]
Maj. Gen. Gomez likewise denied having custody or knowledge of the
whereabouts of the victims, stating that it was not army policy to abduct civilians
in his area of responsibility,[14] and that he was away on official business at the time
of the alleged disappearance of the victims.[15]
Lt. Col. Bayani attested that he was designated Camp Commander only on
September 1, 2007 and thus had no personal knowledge about the victims alleged
disappearance or abduction on September 18, 2006; that he was informed by his
immediate predecessor that no individuals were detained in the camp as it did not
even have detention facilities; and that in compliance with Gen. Esperons directive,
their command was conducting further investigation to verify the allegations in the
petition.[16]
Lt. Sumangil denied having spoken to Josephine inside the camp on
September 24, 2006, on which date civilians were not allowed to enter except on
official missions or when duly authorized to conduct transactions inside the

camp. He thus concluded that Josephine lied in claiming to have seen the two
victims inside the Camp of the Bravo Company of the 71st Infantry Batallion inside
Hacienda Luisita on September 24, 2006 or at any time thereafter. He instead
recounted that on September 24, 2006, he spoke for the first and only time, but
only at the gate of the camp, with a person who identified herself as Antonina
Galang, who informed him about the disappearance of the victims since September
18, 2006. Warning him that these men were members of the New Peoples Army
(NPA), she advised him not to entertain any queries or complaints relative to their
alleged disappearance.[17]
Sgt. Villalobos echoed Sumangils disclaimer about having any of the victims
in his custody or meeting anyone named Josephine Victoria, or about the latter
having entered the camps kitchen to drink water.
Lt. Gen. Yano stated that upon his return from his official functions
overseas, he immediately inquired on the actions taken on the case. He averred that
he had never participated directly or indirectly; or consented, permitted or
sanctioned any illegal or illegitimate military operations. He declared that it had
always been his policy to respect human rights and uphold the rule of law, and to
bring those who violated the law before the court of justice.
In opposing the request for issuance of inspection and production orders, the
military officers posited that apart from compromising national security should
entry into these military camps/bases be allowed, these orders partook of the nature
of a search warrant, such that the requisites for the issuance thereof must be
complied with prior to their issuance. They went on to argue that such request
relied solely on bare, self-serving and vague allegations contained in Josephines
affidavit, for aside from merely mentioning that she saw Nicolas and Heherson on
board an army truck near the Nolcom gate and, days later, inside the kitchen of the
71st Infantry Battalion Camp inside Hacienda Luisita and while logging outside
said camp, Josephine had stated nothing more to ascertain the veracity of the
places where she allegedly saw Nicolas and Heherson.[18]
On whether the impleaded military officers were either directly or indirectly
connected with the disappearance of the victims, the appellate court, after hearing,
absolved, by the assailed Decision of September 17, 2008,[19] Gen. Esperon, Lt.

Gen. Yano, Maj. Gen. Gomez, and Lt. Col. Bayani for lack of evidence linking
them to the disappearances, and further ruled as follows:
All said, this Court is convinced that petitioners have not
adequately and convincingly established any direct or indirect link
between respondents individual military officers and the disappearances
of Nicolas and Heherson. Neither did the concerned Philippine Army
Units have exerted fully their efforts to investigate and unearth the truth
and bring the culprits before the bar of justice.
The concerned Philippine Army units (such as the Northern
Command and the 7th Infantry Division, which had jurisdiction over the
place of disappearance of Nicolas and Heherson, should exert
extraordinary diligence to follow all possible leads to solve the
disappearances of Nicolas and Heherson. The Philippine Army should be
reminded of its constitutional mandate as the protector of the people and
the State.
RELIEFS
While as We stated hereinbefore that We could not find any link
between respondents individual military officers to the disappearance of
Nicolas and Heherson, nonetheless, the fact remains that the two men are
still missing. Hence, We find it equitable to grant petitioners some reliefs
in the interest of human rights and justice as follows:
1. Inspections of the following camps: Camp Servillano Aquino,
San Miguel, Tarlac City, any military camp of the 7 th Infantry Division
located in Aqua Farm, Hacienda Luisita, Tarlac City, within reasonable
working hours of any day except when the military camp is on red alert
status.
2. Thorough and Impartial Investigation for the appropriate
Investigating Unit of the Philippine Army at Camp Servillano Aquino
and the Philippine Army, 7th Infantry Division in Fort Magsaysay
to conduct their respective investigation of all angles pertaining to the
disappearances of Nicolas and Heherson and to immediately file charges
against those found guilty and submit their written report to this Court
within three (3) months from notice.
SO ORDERED.[20] (underscoring supplied)

The military officers filed a Motion for Partial Reconsideration (Motion),


arguing in the main that since respondents failed to prove the allegations in their
petition by substantial evidence, the appellate court should not have granted those
reliefs.[21]
The appellate court denied the Motion by the assailed Resolution of March
3, 2009.[22]
Taking up the cudgels for the military, Gen. Alexander Yano,[23] Lt. Gen.
Victor Ibrado,[24] and Maj. Gen. Ralph Villanueva[25] (petitioners) filed the present
petition for review of the appellate courts assailed issuances, faulting it for
. . . NOT CATEGORICALLY DENYING THE PRIVILEGE OF THE
WRIT OF AMPARO PURSUANT TO SECTION 18 OF THE RULE
ON THE WRIT OF AMPARO DESPITE ITS FINDING THAT
RESPONDENTS FAILED TO PROVE THEIR ALLEGATIONS IN
THEIR PETITION FOR AMPARO BY SUBSTANTIAL
EVIDENCE. . . . [AND] . . .DIRECTING PETITIONERS TO:
(A) ALLOW RESPONDENTS TO INSPECT CAMP
SERVILLANO AQUINO, NORTH LUZON COMMAND,
PHILIPPINE ARMY, SAN MIGUEL, TARLAC CITY
AND ANY MILITARY CAMP OF THE 7TH INFANTRY
DIVISION LOCATED IN AQUA FARM, HACIENDA
LUISITA, TARLAC CITY; AND.
(B) CONDUCT
THOROUGH
AND
IMPARTIAL
INVESTIGATION OF THE DISAPPEARANCE OF THE
AGGRIEVED PARTIES, FILE CHARGES AGAINST
THOSE FOUND GUILTY AND SUBMIT WRITTEN
REPORT WITHIN THREE MONTHS FROM NOTICE.
[26]
(emphasis and underscoring supplied)

The Court finds merit in the petition.

In ruling in favor of Lt. Sumangil and Sgt. Villalobos, the appellate


court resolved the case on the basis of the credibility of Josephine as a witness. It
arrived at the following findings:
To prove that these two military officers took or have custody of
Nicolas and Heherson, petitioners presented Josephine Galang Victoria,
also known as Antonina Galang, a niece of petitioner Cleofas Sanchez
neighbor, who allegedly saw Nicolas and Heherson inside Camp
Servillano Aquino on September 21, 2006 when she visited her uncle, a
certain Major Henry Galang, who is allegedly living inside the camp;
that a few days later, she again saw Nicolas and Heherson at Aqua Farm
at Hacienda Luisita, where the camp of Bravo Company of the
71stInfantry Battalion is located and where Heherson was seen sweeping
the floor and Nicolas was seen cooking, having wounds in their legs near
the feet as if sustained from a gunshot wound; that on November 1,
2006, she went back upon advice of Lt. Sumangil to give her a cellfone
which Tech. Sgt. Villalobos handed to her for her to know where Nicolas
and Heherson will be brought; that they [sic] saw the two outside getting
some woods under the watchful eye of a soldier when Sumangil kicked
Nicolas for being slow and thereafter, she did not see the two anymore.
While Josephine Galang Victorias story of how she saw the
subject two missing persons (Nicolas and Heherson) appeared initially as
plausible, however, her credibility as a witness had been successfully
destroyed by the following witnesses presented by the respondents.
1) Barangay Captain Rodolfo P. Supan of Cut-Cut II, Tarlac City,
attested that she knows a certain woman named Josephine Galang
Victoria who introduces herself as Antonina Galang, niece through the
cousin of his wife and a long-time resident of Cut-Cut II since birth until
she lived with her partner Philip Victoria and they still visit and goes to
her auntie or siblings house; that he knows the reputation of Josephine
Victoria as bad regarding her telling the truth, her truthfulness and
integrity, known to fool others and invents stories for money reasons,
that she cannot be trusted even if she is under oath before God and the
State.
2) As if that is not yet enough, Gloria Galang Mansalay testified
that she is a resident of Cut-Cut II since birth in 1964 and she knows
Josephine Galang Victoria because she is her niecebeing the daughter of
her older brother; that she even took care of Antonina as a child but her

general reputation in telling the truth, her fidelity and integrity is bad,
known to fool others, a liar and invent [sic] stories for reason of money.
3) Clarita Galang Ricafrente saying that she is a resident of Cutcut II and Antonina Galang is a niece and attested the same negative
reputations against Antonina.
It appears that said negative testimonies of Josephine
Galang Victorias relatives were never successfully rebutted by her and
the Court gives credence to them. No ill motive [sic] were established
against the said witnesses to testify against Antonina Galang.
Furthermore, Antonina Galang stated that she was in Camp
Servillano Aquino when she first saw Nicolas and Heherson riding in an
army truck because she was visiting her uncle, Major Henry Galang,
allegedly living in the camp. Parenthetically, this story of Antonina
Galang was put to doubt. TSG Edgard Reyes who attested that as a meter
reader in the camp, Major Galang was no longer residing there in
September 2006. This testimony and revelation of TSG Reyes only
bolstered the testimonies of the other witnesses on Antonina Galangs
penchant to invent stories or tell a lie.
In sum, We are not inclined to give credence to the claims of
Antonina Galang that the two missing person [ sic] she saw first in Camp
Servillano Aquino and later, in Aqua Farm, were Nicolas and Heherson.
Notably, Antonina Galang never did see the faces of the two but were
known to her through photographs. Certainly, there may be a difference
between photographs and the faces in person.
To be noted also is that even the two wives of Nicolas did not
make an express attestation that they saw Nicolas and Heherson in the
company of those armed men who passed their place in the early
morning of September 18, 2006.[27] (underscoring supplied)

NOTABLY, respondents neither moved for reconsideration nor appealed the


appellate courts September 17, 2008 Decision.
The entrenched procedural rule in this jurisdiction is that a party who did not
appeal cannot assign such errors as are designed to have the judgment

modified. All that said appellee can do is to make a counter-assignment of errors or


to argue on issues raised at the trial only for the purpose of sustaining the judgment
in his favor, even on grounds not included in the decision of the court a quo or
raised in the appellants assignment of errors or arguments.[28]
This tenet is enshrined as one of the basic principles in our rules of
procedure, specifically to avoid ambiguity in the presentation of issues, facilitate
the setting forth of arguments by the parties, and aid the court in making its
determinations. A party who fails to acquire complete relief from a decision of the
court has various remedies to correct an omission by the court. He may move for a
correction or clarification of judgment, or even seek its modification through
ordinary appeal. There is thus no basis for the Court to skip the rule and excuse
herein respondents for failure to properly avail themselves of the remedies in the
face of the parties contentions that have remained disputed.[29]
What is thus left for the Court to resolve is the issue of whether the grant of
the RELIEFS[30] by the appellate court after finding want of substantial evidence
are valid and proper.
Sections 17 and 18 of the Amparo Rule lay down the requisite standard of
proof necessary to prove either partys claim, viz:
SEC. 17. Burden of Proof and Standard of Diligence
Required. The parties shall establish their claim by substantial
evidence.
The respondent who is a private individual or entity 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 to evade
responsibility or liability.

SEC. 18. Judgment. The Court shall render judgment within ten
(10) days from the time the petition is submitted for decision. If the
allegations in the petition are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be proper and
appropriate; otherwise, the privilege shall be denied. (emphasis and
underscoring supplied)

The requisite standard of proof substantial evidence speaks of the clear


intent of the Rule to have the equivalent of an administrative proceeding, albeit
judicially conducted, in resolving amparo petitions.
To the appellate court, the evidence adduced in the present case failed to
measure up to that standard substantial evidence which a reasonable mind might
accept as adequate to support a conclusion. Since respondents did not avail of any
remedy against the adverse judgment, the appellate courts decision is, insofar as it
concerns them, now beyond the ambit of review.
Meanwhile, the requirement for a government official or employee to
observe extraordinary diligence in the performance of duty stresses the
extraordinary measures expected to be taken in safeguarding every citizens
constitutional rights as well as in the investigation of cases of extra-judicial killings
and enforced disappearances.[31]
The failure to establish that the public official observed extraordinary
diligence in the performance of duty does not result in the automatic grant of the
privilege of theamparo writ. It does not relieve the petitioner from establishing his
or her claim by substantial evidence. The omission or inaction on the part of the
public official provides, however, some basis for the petitioner to move and for the
court to grant certain interim reliefs.
In line with this, Section 14 of the Amparo Rule provides for interim or
provisional reliefs that the courts may grant in order to, inter alia, protect the
witnesses and the rights of the parties, and preserve all relevant evidence, viz:

SEC. 14. Interim Reliefs. Upon filing of the petition or at


anytime before final judgment, the court, justice or judge may grant
any of the following reliefs:
(a) Temporary Protection Order. The court, justice or judge, upon
motion or motu proprio, may order that the petitioner or the aggrieved
party and any member of the immediate family be protected in a
government agency or by an accredited person or private institution
capable of keeping and securing their safety. If the petitioner is an
organization, association or institution referred to in Section 3 (c) of this
Rule, the protection may be extended to the officers involved.
The Supreme Court shall accredit the persons and private
institutions that shall extend temporary protection to the petitioner or the
aggrieved party and any member of the immediate family, in accordance
with guidelines which it shall issue.
The accredited persons and private institutions shall comply with
the rules and conditions that may be imposed by the court, justice or
judge.
(b) Inspection Order. The court, justice or judge, upon verified
motion and after due hearing, may order any person in possession or
control of a designated land or other property, to permit entry for the
purpose of inspecting, measuring, surveying, or photographing the
property or any relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected.
It shall be supported by affidavits or testimonies of witnesses having
personal knowledge of the enforced disappearance or whereabouts of the
aggrieved party.
If the motion is opposed on the ground of national security or of
the privileged nature of the information, the court, justice or judge may
conduct a hearing in chambers to determine the merit of the opposition.
The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be threatened or
violated.

The inspection order shall specify the person or persons


authorized to make the inspection and the date, time, place and manner
of making the inspection and may prescribe other conditions to protect
the constitutional rights of all parties. The order shall expire five (5) days
after the date of its issuance, unless extended for justifiable reasons.
(c) Production Order. The court, justice, or judge, upon verified
motion and after due hearing, may order any person in possession,
custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or objects in
digitized or electronic form, which constitute or contain evidence
relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.
The motion may be opposed on the ground of national security or
of the privileged nature of the information, in which case the court,
justice or judge may conduct a hearing in chambers to determine the
merit of the opposition.
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties. (emphasis and
underscoring supplied)

These provisional reliefs are intended to assist the court before it arrives at a
judicious determination of the amparo petition. For the appellate court to, in the
present case, still order the inspection of the military camps and order the army
units to conduct an investigation into the disappearance of Nicolas and
Heherson after it absolved petitioners is thus not in order. The reliefs granted by
the appellate court to respondents are not in sync with a finding that petitioners
could not be held accountable for the disappearance of the victims.
Respondents posit that there appears to be some shared confusion as to
whether the reliefs granted by the appellate court are final or interlocutory. They
thus implore this Court to modify the appellate courts judgment by considering the
reliefs as temporary or interlocutory and by adding thereto an order for the
production of logbooks and reports.[32]

At this late stage, respondents can no longer avail themselves of their stale
remedies in the guise of praying for affirmative reliefs in their Comment. No
modification of judgment could be granted to a party who did not appeal.[33]
If respondents believed that the September 17, 2008 Decision of the
appellate court was merely interlocutory, they had every opportunity to question
the conclusion of said court, but they did not. They could have opposed petitioners
motion for reconsideration filed with the appellate court, it being a prohibited
pleading[34] under the Amparo Rule, but they did not.
WHEREFORE, the petition is GRANTED. The assailed September 17,
2008 Decision and March 3, 2009 Resolution of the Court of Appeals, insofar as it
grants the assailed earlier-quoted reliefs are SET ASIDE.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

GEN. AVELINO I. RAZON, G.R. No. 182498


JR., Chief, Philippine
National Police (PNP); Police Present:
Chief Superintendent RAUL
PUNO, C.J.,
CASTAEDA, Chief, Criminal
CARPIO,
Investigation and Detection
CORONA,
Group (CIDG); Police Senior
CARPIO MORALES,
Superintendent LEONARDO
CHICO-NAZARIO,
A. ESPINA, Chief, Police
VELASCO, JR.,
Anti-Crime and Emergency
NACHURA,
Response (PACER); and
LEONARDO-DE CASTRO,
GEN. JOEL R. GOLTIAO,
BRION,
Regional Director of ARMM,
PERALTA,
PNP,
BERSAMIN,
Petitioners,
DEL CASTILLO,
- versus ABAD, and
VILLARAMA, JR., JJ.
MARY JEAN B. TAGITIS,
herein represented by ATTY.
FELIPE P. ARCILLA, JR.,
Promulgated:
Attorney-in-Fact,
Respondent.
December 3, 2009
x-----------------------------------------------------------------------------------------x
DECISION
BRION, J.:
We review in this petition for review on certiorari[1] the decision dated
March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.
[2]
This CA decision confirmed the enforced disappearance of Engineer Morced N.
Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary
Jean B. Tagitis (respondent). The dispositive portion of the CA decision reads:
WHEREFORE,
premises
considered,
petition
is
hereby GRANTED. The Court hereby FINDS that this is an enforced
disappearance within the meaning of the United Nations instruments, as

used in the Amparo Rules. The privileges of the writ of amparo are
hereby extended to Engr. Morced Tagitis.
Consequently:
(1)
respondent GEN.
EDGARDO
M.
DOROMAL, Chief, Criminal Investigation and Detention Group
(CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9
Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP,
(b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS,
and (c) respondent SR. SUPERINTENDENT LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him
as their superior- are hereby DIRECTED to exert extraordinary
diligence and efforts, not only to protect the life, liberty and security of
Engr. Morced Tagitis, but also to extend the privileges of the writ
of amparo to Engr. Morced Tagitis and his family, and to submit a
monthly report of their actions to this Court, as a way ofPERIODIC
REVIEW to enable this Court to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT.
GEN. ALEXANDER YANO, Commanding General, Philippine Army,
and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task
Force Comet, Zamboanga City, both being with the military, which is a
separate and distinct organization from the police and the CIDG, in
terms of operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo a protective remedy against
violations or threats of violation against the rights to life, liberty and security.[3] It
embodies, as a remedy, the courts directive to police agencies to undertake
specified courses of action to address the disappearance of an individual, in this
case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at
least accountability, for the enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to have participated
in whatever way, by action or omission, in an enforced disappearance, as a measure
of the remedies this Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure of remedies that
should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of

responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who
carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the
Writ of Amparo is justified by our primary goal of addressing the disappearance, so
that the life of the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the considerations
and measures necessary to address these situations, may not at all be the same as
the standard measures and procedures in ordinary court actions and proceedings. In
this sense, the Rule on the Writ of Amparo[4] (Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They immediately checkedin at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his
return trip the following day to Zamboanga.When Kunnong returned from this
errand, Tagitis was no longer around.[5] The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his room key with
the desk.[6] Kunnong looked for Tagitis and even sent a text message to the latters
Manila-based secretary who did not know of Tagitis whereabouts and activities
either; she advised Kunnong to simply wait.[7]
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station. [8] On November 7, 2007,
Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a Petition
for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty.
Felipe P. Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano,
Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine
National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation
and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police AntiCrime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMMPNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively
referred to as petitioners]. After reciting Tagitis personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take
his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his student, Arsimin
Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension
house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be
contacted by phone and was not also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic] assisted
him to open the room of Engr. Tagitis, where they discovered that the personal
belongings of Engr. Tagitis, including cell phones, documents and other personal
belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter
to the police authorities in Jolo, he was immediately given a ready answer that
Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone
and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help
from some of their friends in the military who could help them find/locate the
whereabouts of her husband;

14. All of these efforts of the [respondent] did not produce any positive results except the
information from persons in the military who do not want to be identified that
Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr. Tagitis
is in the custody of police intelligence operatives, specifically with the CIDG,
PNP Zamboanga City,being held against his will in an earnest attempt of the
police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondents] request and pleadings failed to produce any positive
results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the
police that her husband, subject of the petition, was not missing but was with
another woman having good time somewhere, which is a clear indication of the
[petitioners] refusal to help and provide police assistance in locating her missing
husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subjects whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying [sic] to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons
that she should approach, but assured her not to worry because her husband is
[sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the [respondents]
request for help and failure and refusal of the [petitioners] to extend the needed
help, support and assistance in locating the whereabouts of Engr. Tagitis who had

been declared missing since October 30, 2007 which is almost two (2) months
now, clearly indicates that the [petitioners] are actually in physical possession and
custody of [respondents] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [the respondent] has no other plain, speedy
and adequate remedy to protect and get the release of subject Engr. Morced
Tagitis from the illegal clutches of the [petitioners], their intelligence operatives
and the like which are in total violation of the subjects human and constitutional
rights, except the issuance of a WRIT OF AMPARO. [Emphasis supplied]

On the same day the petition was filed, the CA immediately issued the Writ
of Amparo, set the case for hearing on January 7, 2008, and directed the petitioners
to file their verified return within seventy-two (72) hours from service of the writ.
[11]

In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged
abduction. They argued that the allegations of the petition were incomplete and did
not constitute a cause of action against them; were baseless, or at best speculative;
and were merely based on hearsay evidence. [12]
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return,
stated that: he did not have any personal knowledge of, or any participation in, the
alleged disappearance; that he had been designated by President Gloria Macapagal
Arroyo as the head of a special body called TASK FORCE USIG, to address
concerns about extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local police, held case
conferences, rendered legal advice in connection to these cases; and gave the
following summary:[13]
xxxx
4.
a)
On November 5, 2007, the Regional Director, Police Regional
Office ARMM submitted a report on the alleged disappearance of one Engr.
Morced Tagitis. According to the said report, the victim checked-in at ASY
Pension House on October 30, 2007 at about 6:00 in the morning and then roamed
around Jolo, Sulu with an unidentified companion. It was only after a few days
when the said victim did not return that the matter was reported to Jolo
MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to
trace and locate the whereabouts of the said missing person, but to no avail. The

said PPO is still conducting investigation that will lead to the immediate findings
of the whereabouts of the person.
b)
Likewise, the Regional Chief, 9RCIDU submitted a Progress
Report to the Director, CIDG. The said report stated among others that: subject
person attended an Education Development Seminar set on October 28, 2007
conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof.
Matli. On October 30, 2007, at around 5:00 oclock in the morning, Engr. Tagitis
reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then
billeted at ASY Pension House. At about 6:15 oclock in the morning of the same
date, he instructed his student to purchase a fast craft ticket bound for Zamboanga
City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00
oclock in the morning, Engr. Tagitis left the premises of ASY Pension House as
stated by the cashier of the said pension house. Later in the afternoon, the student
instructed to purchase the ticket arrived at the pension house and waited for Engr.
Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now
conducting a continuous case build up and information gathering to locate the
whereabouts of Engr. Tagitis.
c)
That the Director, CIDG directed the conduct of the search in all
divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or
illegally detained by covert CIDG-PNP Intelligence Operatives since October 30,
2007, but after diligent and thorough search, records show that no such person is
being detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible
efforts, steps and actions available under the circumstances and continuously
search and investigate [sic] the instant case. This immense mandate, however,
necessitates the indispensable role of the citizenry, as the PNP cannot stand alone
without the cooperation of the victims and witnesses to identify the perpetrators to
bring them before the bar of justice and secure their conviction in court.

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the
Writ ofAmparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable
Special Fourth Division of the Court of Appeals, I immediately directed the
Investigation Division of this Group [CIDG] to conduct urgent investigation on
the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at
around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his

student identified as Arsimin Kunnong of the Islamic Development Bank who


was also one of the participants of the said seminar. He checked in at ASY
pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with
[sic] unidentified companion. At around six oclock in the morning of even date,
Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga
City. In the afternoon of the same date, Kunnong arrived at the pension house
carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be
found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who
reported the incident to the police. The CIDG is not involved in the disappearance
of Engr. Morced Tagitis to make out a case of an enforced disappearance which
presupposes a direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for a person named
Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by
covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a
diligent and thorough research records show that no such person is being detained
in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons responsible
therefore.

Likewise attached to the Return of the Writ was PNP-PACER [15] Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:[16]
xxxx
That, I and our men and women in PACER vehemently deny any participation in
the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS
on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of PACER nor was there any
indication that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or
eradicating kidnap-for-ransom groups which until now continue to be one of the
menace of our society is a respondent in kidnapping or illegal detention
case. Simply put, our task is to go after kidnappers and charge them in court and
to abduct or illegally detain or kidnap anyone is anathema to our mission.

That right after I learned of the receipt of the WRIT OF AMPARO, I directed the
Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active
measures to investigate, locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related to the disappearance
of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or
persons responsible, to identify witnesses and obtain statements from them
concerning the disappearance and to determine the cause, manner, location and
time of disappearance as well as any pattern or practice that may have brought
about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the
disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax
his written report.
That the investigation and measures being undertaken to locate/search the subject
in coordination with Police Regional Office, Autonomous Region of Muslim
Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP
and PNP units/agencies in the area are ongoing with the instruction not to leave
any stone unturned so to speak in the investigation until the perpetrators in the
instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the
WRIT OF AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken upon
receipt of the report on Tagitis disappearance, viz:[17]
xxxx
3) For the record:
1.
I am the Regional Director of Police Regional Office ARMM now
and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of
reported enforced disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office
reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee

of Islamic Development Bank, appeared before the Office of the Chief of Police,
Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis,
scholarship coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken
by any member of the Philippine National Police but rather he just disappeared
from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu,
on October 30, 2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket at
the Office of Weezam Express, however, when the student returned back to ASY
Pension House, he no longer found Engr. Tagitis there and when he immediately
inquired at the information counter regarding his whereabouts [sic], the person in
charge in the counter informed him that Engr. Tagitis had left the premises on
October 30, 2007 around 1 oclock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and
text messages to conduct investigation [sic] to determine the whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the disappearance of Engr.
Tagitis, to identify witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his disappearance, to
identify and apprehend the person or persons involved in the disappearance so that
they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007
directing PD Sulu PPO to conduct joint investigation with CIDG and
CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007
directing PD Sulu PPO to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO
reiterating our series of directives for investigation and directing him to
undertake exhaustive coordination efforts with the owner of ASY Pension
House and student scholars of IDB in order to secure corroborative
statements regarding the disappearance and whereabouts of said
personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO
directing him to maximize efforts to establish clues on the whereabouts of

Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and


Arsimin Kunnong and/or whenever necessary, for them to voluntarily
submit for polygraph examination with the NBI so as to expunge all
clouds of doubt that they may somehow have knowledge or idea to his
disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief,
Criminal Investigation and Detection Group, Police Regional Office 9,
Zamboanga City, requesting assistance to investigate the cause and
unknown disappearance of Engr. Tagitis considering that it is within their
area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his disappearance and submitted the
following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No.
SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they
are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo
Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown
in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP
informing him of the facts of the disappearance and the action being taken by
our office;
b) Memorandum dated November 6, 2007 addressed to the Director, Directorate
for Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.

Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao
as the officer in command of the area of disappearance to form TASK FORCE
TAGITIS.[18]
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt.
Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set three
hearings to monitor whether TASK FORCE TAGITIS was exerting extraordinary
efforts in handling the disappearance of Tagitis. [20] As planned, (1) the first hearing
would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be
to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing
would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of
Zamboanga City and other police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA
an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo
Police Station, stating a possible motive for Tagitis disappearance. [22] The
intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic
Studies at the University of the Philippines and an Honorary Student Counselor of
the IDB Scholarship Program in the Philippines, who told the Provincial Governor
of Sulu that:[23]
[Based] on reliable information from the Office of Muslim Affairs in Manila,
Tagitis has reportedly taken and carried away more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by the
Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended
for the IDB Scholarship Fund.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to
be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention cells.
[24]
PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS
investigate the disappearance of Tagitis, persistently denied any knowledge or
complicity in any abduction.[25] He further testified that prior to the hearing, he had
already mobilized and given specific instructions to their supporting units to
perform their respective tasks; that they even talked to, but failed to get any lead
from the respondent in Jolo.[26] In his submitted investigation report dated January
16, 2008, PS Supt. Ajirim concluded:[27]

9. Gleaned from the undersigned inspection and observation at the Headquarters 9


RCIDU and the documents at hand, it is my own initial conclusion that the
9RCIDU and other PNP units in the area had no participation neither [sic]
something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last
October 30, 2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was reportedly deposited
in the personal account of Engr. Tagitis by the IDB central office in Jeddah,
Kingdom of Saudi Arabia.Secondly, it could might [sic] be done by resentment or
sour grape among students who are applying for the scholar [sic] and were denied
which was allegedly conducted/screened by the subject being the coordinator of
said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the
motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities
from the institution where he belong as well as to the Islamic student scholars
should the statement of Prof. Matli be true or there might be a professional
jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in the
area particularly the CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and investigation for the
early resolution of this instant case. But rest assured, our office, in coordination
with other law-enforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.

On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE


TAGITIS did not appear to be exerting extraordinary efforts in resolving Tagitis
disappearance on the following grounds:[28]
(1)
This Court FOUND that it was only as late as January 28, 2008,
after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had
requested for clear photographs when it should have been standard operating
procedure in kidnappings or disappearances that the first agenda was for the
police to secure clear pictures of the missing person, Engr. Morced Tagitis, for
dissemination to all parts of the country and to neighboring countries. It had been
three (3) months since GEN. JOEL GOLTIAO admitted having been informed on
November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged
bad elements of the CIDG. It had been more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It had been three (3) weeks when
battle formation was ordered through Task Force Tagitis, on January 17, 2008. It
was only on January 28, 2008 when the Task Force Tagitis requested for clear and
recent photographs of the missing person, Engr. Morced Tagitis, despite the Task
Force Tagitis claim that they already had an all points bulletin, since November 5,

2007, on the missing person, Engr. Morced Tagitis. How could the police look for
someone who disappeared if no clear photograph had been disseminated?
(2)
Furthermore, Task Force Tagitis COL. AHIROM AJIRIM
informed this Court that P/Supt KASIM was designated as Col. Ahirom Ajirims
replacement in the latters official designated post. Yet, P/Supt KASIMs subpoena
was returned to this Court unserved. Since this Court was made to understand that
it was P/Supt KASIM who was the petitioners unofficial source of the military
intelligence information that Engr. Morced Tagitis was abducted by bad elements
of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM
and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the
appearance of Col. KASIM in response to this courts subpoena and COL. KASIM
could have confirmed the military intelligence information that bad elements of
the CIDG had abducted Engr. Morced Tagitis.

Testimonies for the Respondent


On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her to
specify her allegations, particularly paragraph 15 of the petition.[29] This friend also
told her that her husband [was] in good hands. [30] The respondent also testified that
she sought the assistance of her former boss in Davao City, Land Bank Bajada
Branch Manager Rudy Salvador, who told her that PNP CIDG is holding [her
husband], Engineer Morced Tagitis.[31] The respondent recounted that she went to
Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col.
Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a
highly confidential report that contained the alleged activities of Engineer Tagitis
and informed her that her husband was abducted because he is under custodial
investigation for being a liaison for J.I. or Jemaah Islamiah.[32]
On January 17, 2008, the respondent on cross-examination testified that she is
Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.[33] She last communicated with her husband on
October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on
his way to Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husbands disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her
that she had not heard from her father since the time they arranged to meet in

Manila on October 31, 2007.[35] The respondent explained that it took her a few
days (or on November 5, 2007) to personally ask Kunnong to report her husbands
disappearance to the Jolo Police Station, since she had the impression that her
husband could not communicate with her because his cellular phones battery did
not have enough power, and that he would call her when he had fully-charged his
cellular phones battery.[36]
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr
(Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.
[37]
She also testified that she was with three other people, namely, Mrs. Marydel
Martin Talbin and her two friends from Mati City, Davao Oriental, when Col.
Kasim read to them the contents of the highly confidential report at Camp
Katitipan, Davao City. The respondent further narrated that the report indicated
that her husband met with people belonging to a terrorist group and that he was
under custodial investigation. She then told Col. Kasim that her husband was a
diabetic taking maintenance medication, and asked that the Colonel relay to the
persons holding him the need to give him his medication.[38]
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,[39] signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs.
Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning; we
arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched by the
two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao
Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed
me and got information about the personal background of Engr. Morced N.
Tagitis. After he gathered all information, he revealed to us the contents of text
messages they got from the cellular phone of the subject Engr. Tagitis. One of the
very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis
was that she was not allowed to answer any telephone calls in his condominium
unit.
While we were there he did not tell us any information of the whereabouts of
Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to
the city. His two staffs accompanied us to the mall to purchase our plane ticket
going back to Davao City on November 12, 2007.

When we arrived in Davao City on November 12, 2007 at 9:00 in the morning,
Col. Ancanan and I were discussing some points through phone calls. He assured
me that my husband is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet
I did not believe his given statements of the whereabouts of my husband, because
I contacted some of my friends who have access to the groups of MILF, MNLF
and ASG. I called up Col. Ancanan several times begging to tell me the exact
location of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because
the PNP, Jolo did not give me any information of the whereabouts of my
husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan ang
kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of dropping
by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason
that the Chief of Police of Jolo told me not to contact any AFP officials and he
promised me that he can solve the case of my husband (Engr. Tagitis) within nine
days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband
Engr. Morced Tagitis, yet failed to do so.

The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch,
Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I
asked him a favor to contact his connections in the military in Jolo, Sulu where
the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up
Camp Katitipan located in Davao City looking for high-ranking official who can
help me gather reliable information behind the abduction of subject Engineer
Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador
introduced me to Col. Kasim and we had a short conversation. And he assured me
that hell do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that
I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent,
confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three
friends. That was the time that Col. Kasim read to us the confidential report that
Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of
which he mentioned in the report was OMAR PATIK and a certain SANTOS - a
Balik Islam.

It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember. It
was written in a long bond paper with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.
He asked a favor to me that Please dont quote my Name! Because this is a raw
report. He assured me that my husband is alive and he is in the custody of the
military for custodial investigation.I told him to please take care of my husband
because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from
Kasim.

On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs.
Talbin testified that she was with the respondent when she went to Zamboanga to
see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages
from Tagitis cellular phone, which showed that Tagitis and his daughter would
meet in Manila on October 30, 2007.[43]
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that
Tagitis was in good hands, although he was not certain whether he was with the
PNP or with the Armed Forces of the Philippines (AFP). She further recounted that
based on the report Col. Kasim read in their presence, Tagitis was under custodial
investigation because he was being charged with terrorism; Tagitis in fact had been
under surveillance since January 2007 up to the time he was abducted when he was
seen talking to Omar Patik and a certain Santos of Bulacan, a Balik Islam charged
with terrorism. Col. Kasim also told them that he could not give a copy of the
report because it was a raw report.[45] She also related that the Col. Kasim did not
tell them exactly where Tagitis was being kept, although he mentioned Talipapao,
Sulu.Prof., lalabas din yan.[50] Prof. Matli also emphasized that despite what his January 4,
2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any accusation,
that Tagitis took away money entrusted to him. [52] Prof. Matli confirmed, however,
that that he had received an e-mail report[53] from Nuraya Lackian of the Office of

Muslim Affairs in Manila that the IDB was seeking assistance of the office in
locating the funds of IDB scholars deposited in Tagitis personal account.[54]
On cross-examination by the respondents counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to
sign it.[55]Prof Matli clarified that although he read the affidavit before signing it, he
was not so much aware of [its] contents.[56]
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had stated
that Tagitis was in the custody of either the military or the PNP.[57] Col. Kasim
categorically denied the statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for
the injured terrorists; (2) that Tagitis was under the custody of the military, since
he merely said to the respondent that your husband is in good hands and is
probably taken cared of by his armed abductors; and (3) that Tagitis was under
custodial investigation by the military, the PNP or the CIDG Zamboanga City.
[58]
Col. Kasim emphasized that the informal letter he received from his informant
in Sulu did not indicate that Tagitis was in the custody of the CIDG. [59] He also
stressed that the information he provided to the respondent was merely a raw
report sourced from barangay intelligence that still needed confirmation and
follow-up as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a civilian asset, through a
letter which he considered as unofficial.[61] Col. Kasim stressed that the letter was
only meant for his consumption and not for reading by others. [62] He testified
further that he destroyed the letter right after he read it to the respondent and her
companions because it was not important to him and also because the information
it contained had no importance in relation with the abduction of Tagitis. [63] He
explained that he did not keep the letter because it did not contain any information
regarding the whereabouts of Tagitis and the person(s) responsible for his
abduction.[64]
In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondents allegation that Tagitis was in the custody of CIDGZamboanga City.[65] Col. Pante clarified that the CIDG was the investigative arm of
the PNP, and that the CIDG investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU personnel

were involved in the disappearance of Tagitis was baseless, since they did not
conduct any operation in Jolo, Sulu before or after Tagitis reported disappearance.
[67]
Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had no
capability to conduct any operation, since they were only assigned to investigate
matters and to monitor the terrorism situation. [68] He denied that his office
conducted any surveillance on Tagitis prior to the latters disappearance. [69] Col.
Pante further testified that his investigation of Tagitis disappearance was
unsuccessful; the investigation was still facing a blank wall on the whereabouts of
Tagitis.[70]
THE CA RULING
On March 7, 2008, the CA issued its decision [71] confirming that the disappearance
of Tagitis was an enforced disappearance under the United Nations (UN)
Declaration on the Protection of All Persons from Enforced Disappearances. [72] The
CA ruled that when military intelligence pinpointed the investigative arm of the
PNP (CIDG) to be involved in the abduction, the missing-person case qualified as
an enforced disappearance. The conclusion that the CIDG was involved was based
on the respondents testimony, corroborated by her companion, Mrs. Talbin. The
CA noted that the information that the CIDG, as the police intelligence arm, was
involved in Tagitis abduction came from no less than the military an independent
agency of government. The CA thus greatly relied on the raw report from Col.
Kasims asset, pointing to the CIDGs involvement in Tagitis abduction.The CA held
that raw reports from an asset carried great weight in the intelligence world. It also
labeled as suspect Col. Kasims subsequent and belated retraction of his statement
that the military, the police, or the CIDG was involved in the abduction of Tagitis.
The CA characterized as too farfetched and unbelievable and a bedlam of
speculation police theories painting the disappearance as intentional on the part of
Tagitis. He had no previous brushes with the law or any record of overstepping the
bounds of any trust regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she did not get his
or her stipend. The CA also found no basis for the police theory that Tagitis was
trying to escape from the clutches of his second wife, on the basis of the
respondents testimony that Tagitis was a Muslim who could have many wives
under the Muslim faith, and that there was no issue at all when the latter divorced
his first wife in order to marry the second. Finally, the CA also ruled out
kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the
cause for Tagitis disappearance, since the respondent, the police and the military
noted that there was no acknowledgement of Tagitis abduction or demand for
payment of ransom the usualmodus operandi of these terrorist groups.

Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP
Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of
Tagitis, with the obligation to provide monthly reports of their actions to the
CA. At the same time, the CA dismissed the petition against the then respondents
from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the
finding that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the
CA denied the motion in its Resolution of April 9, 2008.[73]
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparo petition filed
before the CA; the sufficiency of the legal remedies the respondent took before
petitioning for the writ; the finding that the rights to life, liberty and security of
Tagitis had been violated; the sufficiency of evidence supporting the conclusion
that Tagitis was abducted; the conclusion that the CIDG Zamboanga was
responsible for the abduction; and, generally, the ruling that the respondent
discharged the burden of proving the allegations of the petition by substantial
evidence.[74]
THE COURTS RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the
respondents Amparo petition, the petitioners contend that the petition violated
Section 5(c), (d), and (e) of theAmparo Rule. Specifically, the petitioners allege
that the respondent failed to:

1) allege any act or omission the petitioners committed in violation of


Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondents source
of information;
3) allege that the abduction was committed at the petitioners instructions or
with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to
have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis disappearance;
and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall
allege, among others (in terms of the portions the petitioners cite):[75]
(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or omission
of the respondent, and how such threat or violation is committed
with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine
the fate or whereabouts of the aggrieved party and the identity of
the person responsible for the threat, act or omission; and

The framers of the Amparo Rule never intended Section 5(c) to be complete
in every detail in stating the threatened or actual violation of a victims rights. As in

any other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details. [76] In
an Amparo petition, however, this requirement must be read in light of the nature
and purpose of the proceeding, which addresses a situation of uncertainty; the
petitioner may not be able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where
the victim is detained, because these information may purposely be hidden or
covered up by those who caused the disappearance. In this type of situation, to
require the level of specificity, detail and precision that the petitioners apparently
want to read into the Amparo Rule is to make this Rule a token gesture of judicial
concern for violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the
unique Amparo situation, the test in reading the petition should be to determine
whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the
victims rights to life, liberty and security through State or private party action. The
petition should likewise be read in its totality, rather than in terms of its isolated
component parts, to determine if the required elements namely, of the
disappearance, the State or private action, and the actual or threatened violations of
the rights to life, liberty or security are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging in
normal activities, and thereafter was nowhere to be found despite efforts to locate
him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15
and 16, that according to reliable information, police operatives were the
perpetrators of the abduction. It also clearly alleged how Tagitis rights to life,
liberty and security were violated when he was forcibly taken and boarded on a
motor vehicle by a couple of burly men believed to be police intelligence

operatives, and then taken into custody by the respondents police intelligence
operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga
City, x x x held against his will in an earnest attempt of the police to involve and
connect [him] with different terrorist groups.[77]
These allegations, in our view, properly pleaded ultimate facts within the
pleaders knowledge about Tagitis disappearance, the participation by agents of the
State in this disappearance, the failure of the State to release Tagitis or to provide
sufficient information about his whereabouts, as well as the actual violation of his
right to liberty. Thus, the petition cannot be faulted for any failure in its statement
of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the
summary nature of the proceedings for the writ and to facilitate the resolution of
the petition, the Amparo Rule incorporated the requirement for supporting
affidavits, with the annotation that these can be used as the affiants direct
testimony.[78] This requirement, however, should not be read as an absolute one that
necessarily leads to the dismissal of the petition if not strictly followed. Where, as
in this case, the petitioner has substantially complied with the requirement by
submitting a verified petition sufficiently detailing the facts relied upon, the strict
need for the sworn statement that an affidavit represents is essentially fulfilled. We
note that the failure to attach the required affidavits was fully cured when the
respondent and her witness (Mrs. Talbin) personally testified in the CA hearings
held on January 7 and 17 and February 18, 2008 to swear to and flesh out the
allegations of the petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an
alleged disappearance must have been made, specifying the manner and results of
the investigation.Effectively, this requirement seeks to establish at the earliest

opportunity the level of diligence the public authorities undertook in relation with
the reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not
comply with the Section 5(d) requirements of the Amparo Rule, as the petition
specifies in its paragraph 11 that Kunnong and his companions immediately
reported Tagitis disappearance to the police authorities in Jolo, Sulu as soon as
they were relatively certain that he indeed had disappeared. The police, however,
gave them the ready answer that Tagitis could have been abducted by the Abu
Sayyaf group or other anti-government groups. The respondent also alleged in
paragraphs 17 and 18 of her petition that she filed a complaint with the PNP Police
Station in Cotobato and in Jolo, but she was told of an intriguing tale by the police
that her husband was having a good time with another woman. The disappearance
was alleged to have been reported, too, to no less than the Governor of the ARMM,
followed by the respondents personal inquiries that yielded the factual bases for
her petition.[80]
These allegations, to our mind, sufficiently specify that reports have been
made to the police authorities, and that investigations should have followed. That
the petition did not state the manner and results of the investigation that
the Amparo Rule requires, but rather generally stated the inaction of the police,
their failure to perform their duty to investigate, or at the very least, their reported
failed efforts, should not be a reflection on the completeness of the petition. To
require the respondent to elaborately specify the names, personal circumstances,
and addresses of the investigating authority, as well the manner and conduct of the
investigation is an overly strict interpretation of Section 5(d), given the
respondents frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the allegations of the
petition on the investigations undertaken are sufficiently complete for purposes of
bringing the petition forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition that
otherwise is not supported by sufficient allegations to constitute a proper cause of
action as a means to fish for evidence. [81] The petitioners contend that the
respondents petition did not specify what legally available efforts were taken by
the respondent, and that there was an undue haste in the filing of the petition when,
instead of cooperating with authorities, the respondent immediately invoked the
Courts intervention.
We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in
the present case) allege the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission. The following allegations of the respondents petition
duly outlined the actions she had taken and the frustrations she encountered, thus
compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take
his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter
to the police authorities in Jolo, he was immediately given a ready answer that
Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other
groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong
reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other
responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines who alerted the office of the Governor of ARMM who was then
preparing to attend the OIC meeting in Jeddah, Saudi Arabia;

13. [The respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis
is in the custody of police intelligence operatives, specifically with the CIDG,
PNP Zamboanga City, being held against his will in an earnest attempt of the
police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [the respondents] request and pleadings failed to produce any
positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM
Police Headquarters again in Cotobato City and also to the different Police
Headquarters including the police headquarters in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and all these places have been
visited by the [respondent] in search for her husband, which entailed expenses for
her trips to these places thereby resorting her to borrowings and beggings [sic] for
financial help from friends and relatives only to try complying to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to
no avail, and under the circumstances, [respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis
from the illegal clutches of [the petitioners], their intelligence operatives and the
like which are in total violation of the subjects human and constitutional rights,
except the issuance of a WRIT OF AMPARO.

Based on these considerations, we rule that the respondents petition for the
Writ of Amparo is sufficient in form and substance and that the Court of Appeals
had every reason to proceed with its consideration of the case.

The Desaparecidos
The present case is one of first impression in the use and application of the
Rule on the Writ of Amparo in an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an enforced disappearance situation,
a brief look at the historical context of the writ and enforced disappearances would
be very helpful.
The phenomenon of enforced disappearance arising from State action first
attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of
December 7, 1941.[82] The Third Reichs Night and Fog Program, a State policy,
was directed at persons in occupied territories endangering German security; they
were transported secretly to Germany where they disappeared without a trace. In
order to maximize the desired intimidating effect, the policy prohibited
government officials from providing information about the fate of these targeted
persons.[83]
In the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have disappeared during the military regime in
Argentina. Enforced disappearances spread in Latin America, and the issue became
an international concern when the world noted its widespread and systematic use
by State security forces in that continent under Operation Condor [84] and during the
Dirty War[85] in the 1970s and 1980s. The escalation of the practice saw political
activists secretly arrested, tortured, and killed as part of governments counterinsurgency campaigns. As this form of political brutality became routine elsewhere
in the continent, the Latin American media standardized the term disappearance to
describe the phenomenon. The victims of enforced disappearances were called
the desaparecidos,[86] which literally means the disappeared ones.[87] In general,
there are three different kinds of disappearance cases:

1) those of people arrested without witnesses or without positive identification


of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant
and held in complete isolation for weeks or months while their families are
unable to discover their whereabouts and the military authorities deny having
them in custody until they eventually reappear in one detention center or
another; and
3) those of victims of salvaging who have disappeared until their lifeless bodies
are later discovered.[88]

In the Philippines, enforced disappearances generally fall within the first two
categories,[89] and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C. Aquinos term, 820
people were reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were
found dead. The number of enforced disappearances dropped during former
President Fidel V. Ramos term when only 87 cases were reported, while the threeyear term of former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization, reports that as of
March 31, 2008, the records show that there were a total of 193 victims of enforced
disappearance under incumbent President Gloria M. Arroyos administration. The
Commission on Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined
status.[90] Currently, the United Nations Working Group on Enforced or Involuntary
Disappearance[91] reports 619 outstanding cases of enforced or involuntary
disappearances covering the period December 1, 2007 to November 30, 2008.[92]
Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover extralegal
killings and enforced disappearances or threats thereof.[93] We note that although
the writ specifically covers enforced disappearances, this concept is neither defined
nor penalized in this jurisdiction. The records of the Supreme Court Committee on
the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule
initially considered providing an elemental definition of the concept of enforced
disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the rules,
definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is no law penalizing
extrajudicial killings and enforced disappearances so initially also we have to
[come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings
and disappearances will define the jurisdiction of the courts. So well have to
agree among ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state actors. That is an element
incorporated in their concept of extrajudicial killings and enforced
disappearances. In other jurisdictions, the concept includes acts and omissions not
only of state actors but also of non state actors. Well, more specifically in the case
of the Philippines for instance, should these rules include the killings, the
disappearances which may be authored by let us say, the NPAs or the leftist
organizations and others. So, again we need to define the nature of the
extrajudicial killings and enforced disappearances that will be covered by these
rules. [Emphasis supplied] [95]

In the end, the Committee took cognizance of several bills filed in the House
of Representatives[96] and in the Senate[97] on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these
terms in the Rule. The Committee instead focused on the nature and scope of the
concerns within its power to address and provided the appropriate remedy therefor,
mindful that an elemental definition may intrude into the ongoing legislative
efforts.[98]

As the law now stands, extra-judicial killings and enforced disappearances in


this jurisdiction are not crimes penalized separately from the component criminal
acts undertaken to carry out these killings and enforced disappearances and are
now penalized under the Revised Penal Code and special laws.[99] The simple
reason is that the Legislature has not spoken on the matter; the determination of
what acts are criminal and what the corresponding penalty these criminal acts
should carry are matters of substantive law that only the Legislature has the power
to enact under the countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on 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 Courts power is strictly procedural and as such does not
diminish, increase or modify substantive rights, the legal protection that the Court
can provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set theprocedural standards and thereby directly compel the
public authorities to act on actual or threatened violations of constitutional rights.
To state the obvious, judicial intervention can make a difference even if only
procedurally in a situation when the very same investigating public authorities may
have had a hand in the threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we
do not rule on any issue of criminal culpability for the extrajudicial killing or
enforced disappearance. This is an issue that requires criminal action before our
criminal courts based on our existing penal laws. Our intervention is in

determining whether an enforced disappearance has taken place and who is


responsible or accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public authorities to
discharge in these situations, under the Rule on the Writ of Amparo, is
twofold. The first is to ensure that all efforts at disclosure and investigation are
undertaken under pain of indirect contempt from this Court when governmental
efforts are less than what the individual situations require. The second is to address
the disappearance, so that the life of the victim is preserved and his or her liberty
and security restored. In these senses, our orders and directives relative to the writ
are continuing efforts that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete determination of the fate
and the whereabouts of the victim, by the production of the disappeared person and
the restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights. [101] It does not
only violate the right to life, liberty and security of the desaparecido; it affects their
families as well through the denial of their right to information regarding the
circumstances of the disappeared family member. Thus, enforced disappearances
have been said to be a double form of torture, with doubly paralyzing impact for
the victims, as they are kept ignorant of their own fates, while family members are
deprived of knowing the whereabouts of their detained loved ones and suffer as
well the serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner.[102]

The UN General Assembly first considered the issue of Disappeared Persons


in December 1978 under Resolution 33/173. The Resolution expressed the General
Assemblys deep concern arising from reports from various parts of the world
relating to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations.[103]
In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted theDeclaration on the Protection of All Persons from Enforced
Disappearance (Declaration).[104] This Declaration, for the first time, provided in
its third preambular clause a working description of enforced disappearance, as
follows:
Deeply concerned that in many countries, often in a persistent manner,
enforced disappearances occur, in the sense that persons are arrested, detained
or abducted against their will or otherwise deprived of their liberty by
officials of different branches or levels of Government, or by organized
groups or private individuals acting on behalf of, or with the support, direct
or indirect, consent or acquiescence of the Government, followed by a refusal
to disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside
the protection of the law. [Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).[105] The Convention was opened for
signature in Paris, France on February 6, 2007. [106] Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, enforced disappearance is
considered to be the arrest, detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or

whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is
a right not to be subject to enforced disappearance [107] and that this right is nonderogable.[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 rulemaking 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 abelief 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 InterAmerican Convention on Enforced Disappearance of Persons in June 1994.
[122]
State parties undertook under this Convention not to practice, permit, or
tolerate the forced disappearance of persons, even in states of emergency or
suspension of individual guarantees.[123] One of the key provisions includes the
States obligation to enact the crime of forced disappearance in their respective
national criminal laws and to establish jurisdiction over such cases when the crime
was committed within their jurisdiction, when the victim is a national of that State,
and when the alleged criminal is within its territory and it does not proceed to
extradite him, which can be interpreted as establishing universal jurisdiction
among the parties to the Inter-American Convention. [124] At present, Colombia,
Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined activities
involving enforced disappearance to be criminal.[125]
Second, in Europe, the European Convention on Human Rights has no
explicit provision dealing with the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however, has applied the Convention in

a way that provides ample protection for the underlying rights affected by enforced
disappearance through the Conventions Article 2 on the right to life; Article 3 on
the prohibition of torture; Article 5 on the right to liberty and security; Article 6,
paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective
remedy. A leading example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,[126] where the ECHR found a violation of the right to
liberty and security of the disappeared person when the applicants son disappeared
after being taken into custody by Turkish forces in the Kurdish village of Agilli in
November 1993. It further found the applicant (the disappeared persons mother) to
be a victim of a violation of Article 3, as a result of the silence of the authorities
and the inadequate character of the investigations undertaken. The ECHR also saw
the lack of any meaningful investigation by the State as a violation of Article 13.
[127]

Third, in the United States, the status of the prohibition on enforced


disappearance as part of customary international law is recognized in the most
recent edition ofRestatement 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. PenaIrala[130] that the prohibition on torture had attained the status of customary
international law. The court further elaborated on the significance of UN
declarations, as follows:
These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that they do not know what human
rights they promised in the Charter to promote. Moreover, a U.N. Declaration is,
according to one authoritative definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great and lasting importance are
being enunciated. Accordingly, it has been observed that the Universal
Declaration of Human Rights "no longer fits into the dichotomy of binding treaty

against non-binding pronouncement,' but is rather an authoritative statement of the


international community." Thus, a Declaration creates an expectation of
adherence, and "insofar as the expectation is gradually justified by State practice,
a declaration may by custom become recognized as laying down rules binding
upon the States." Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary international law.
[Citations omitted]

Fourth, in interpreting Article 2 (right to an effective domestic remedy) of


the International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment) and
9 (right to liberty and security of the person) of the ICCPR, and the act may also
amount to a crime against humanity.[131]
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances insofar as
they are defined as crimes against humanity,[132] i.e., crimes committed as part of a
widespread or systematic attack against any civilian population, with knowledge of
the attack. While more than 100 countries have ratified the Rome Statute, [133] the
Philippines is still merely a signatory and has not yet ratified it. We note that
Article 7(1) of the Rome Statute has been incorporated in the statutes of other
international and hybrid tribunals, including Sierra Leone Special Court, the
Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary Chambers
in the Courts of Cambodia.[134] In addition, the implementing legislation of State
Parties to the Rome Statute of the ICC has given rise to a number of national
criminal provisions also covering enforced disappearance.[135]
While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of the Rome
Statute) and has not formally declared enforced disappearance as a specific crime,
the above recital shows that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it is now
a generally accepted principle of international law, which we should consider a

part of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of
Human Rights, the ICCPR and the International Convention on Economic, Social
and Cultural Rights (ICESR) may be infringed in the course of a disappearance:[136]
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and
compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party,


provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for
by the legal system of the State, and to develop the possibilities of
judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies
when granted. [Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the obligation
of the State to investigate ICCPR violations promptly, thoroughly, and
effectively, viz:[137]
15. Article 2, paragraph 3, requires that in addition to effective protection
of Covenant rights, States Parties must ensure that individuals also
have accessible and effective remedies to vindicate those rights The
Committee attaches importance to States Parties' establishing appropriate
judicial and administrative mechanisms for addressing claims of rights
violations under domestic law Administrative mechanisms are
particularly required to give effect to the general obligation to
investigate allegations of violations promptly, thoroughly and
effectivelythrough independent and impartial bodies. A failure by a
State Party to investigate allegations of violations could in and of itself
give rise to a separate breach of the Covenant. Cessation of an ongoing
violation is an essential element of the right to an effective remedy.
[Emphasis supplied]

The UN Human Rights Committee further stated in the same General


Comment No. 31 that failure to investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:[138]
18. Where the investigations referred to in paragraph 15 reveal violations
of certain Covenant rights, States Parties must ensure that those
responsible are brought to justice. As with failure to investigate,
failure to bring to justice perpetrators of such violations could in
and of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as
criminal under either domestic or international law, such as torture
and similar cruel, inhuman and degrading treatment (article 7), summary
and arbitrary killing (article 6) and enforced disappearance (articles 7
and 9 and, frequently, 6). Indeed, the problem of impunity for these
violations, a matter of sustained concern by the Committee, may well be
an important contributing element in the recurrence of the violations.
When committed as part of a widespread or systematic attack on a
civilian population, these violations of the Covenant are crimes against
humanity (see Rome Statute of the International Criminal Court, article
7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the


right to security of persons is a guarantee of the protection of ones right by the
government, held that:
The right to security of person in this third sense is a corollary of the
policy that the State guarantees full respect for human rights under
Article II, Section 11 of the 1987 Constitution. As the government is the
chief guarantor of order and security, the Constitutional guarantee of
the rights to life, liberty and security of person is rendered ineffective if
government does not affordprotection to these rights especially when
they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez
Rodriguez Case, viz:
(The duty to investigate) must be undertaken in
a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have
an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for the
truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the right
to security not only as a prohibition on the State against arbitrary deprivation of
liberty, but also as the imposition of a positive duty to afford protection to the right
to liberty. The Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law but
must equally be in keeping with the very purpose of Article 5, namely to
protect the individual from arbitrariness... Having assumed control over
that individual, it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the

authorities to take effective measures to safeguard against the risk of


disappearance and to conduct a prompt effective investigation into
an arguable claim that a person has been taken into custody and has
not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ
of Amparo, which the Court made effective on October 24, 2007. Although
the Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of enforced
disappearance, the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule, the
Court can provide remedies and protect the constitutional rights to life,
liberty and security that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the
burden of proving the allegations of the petition for the Writ of Amparo by the
degree of proof required by the Amparo Rule, we shall discuss briefly the unique
evidentiary difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of the Amparo Rule
shall encounter.
These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past experiences in
other jurisdictions show that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.[141] Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus:

The victim is generally arrested by the security forces or by persons


acting under some form of governmental authority. In many countries the
units that plan, implement and execute the program are generally
specialized, highly-secret bodies within the armed or security forces.
They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent
any interference by the "legal" police forces. These authorities take their
victims to secret detention centers where they subject them to
interrogation and torture without fear of judicial or other controls. [142]

In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the disappearance
out of fear for their own lives. [143] We have had occasion to note this difficulty
in Secretary of Defense v. Manalo[144] when we acknowledged that where powerful
military officers are implicated, the hesitation of witnesses to surface and testify
against them comes as no surprise.
Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of evidence in an enforced
disappearance i.e., thecorpus delicti or the victims body is usually concealed to
effectively thwart the start of any investigation or the progress of one that may
have begun.[145] The problem for the victims family is the States virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human Rights (IACHR)
observed in the landmark case of Velasquez Rodriguez[146] that inherent to the
practice of enforced disappearance is the deliberate use of the States power to
destroy the pertinent evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.[147]
Third is the element of denial; in many cases, the State authorities
deliberately deny that the enforced disappearance ever occurred.[148] Deniability is
central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards ensuring
the victims human rights.[149]Experience shows that government officials typically
respond to requests for information about desaparecidos by saying that they are not
aware of any disappearance, that the missing people may have fled the country, or
that their names have merely been invented.[150]

These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the parties to the case
carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The
parties shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that
ordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty.
The respondent who is a public official or employee must prove
that extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or evade
responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate;otherwise, the privilege
shall be denied. [Emphasis supplied]

These characteristics namely, of being summary and the use of substantial


evidence as the required level of proof (in contrast to the usual preponderance of
evidence or proof beyond reasonable doubt in court proceedings) reveal the clear

intent of the framers of the Amparo Rule to have the equivalent of an


administrative
proceeding,
albeit
judicially
conducted,
in
addressing Amparo situations. The standard of diligence required the duty of public
officials and employees to observe extraordinary diligence point, too, to the
extraordinary measures expected in the protection of constitutional rights and in
the consequent handling and investigation of extra-judicial killings and enforced
disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly
comply with the substance and form requirements of a Writ of Amparo petition, as
discussed above, and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then respond and prove their
defenses based on the standard of diligence required. The rebuttable case, of
course, must show that an enforced disappearance took place under circumstances
showing a violation of the victims constitutional rights to life, liberty or security,
and the failure on the part of the investigating authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided
the Court its first opportunity to define the substantial evidence required to arrive
at a valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that the rules of evidence
prevailing in courts of law and equity shall not be controlling. The obvious
purpose of this and similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis supplied]

In Secretary of Defense v. Manalo,[152] which was the Courts first petition for
a Writ of Amparo, we recognized that the full and exhaustive proceedings that the

substantial evidence standard regularly requires do not need to apply due to the
summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it
partakes of a summary proceeding that requires only substantial evidence to make
the appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring
substantial
evidence
that
will
require
full
and
exhaustive
proceedings. [Emphasis supplied]

Not to be forgotten in considering the evidentiary aspects


of Amparo petitions are the unique difficulties presented by the nature of enforced
disappearances, heretofore discussed, which difficulties this Court must frontally
meet if the Amparo Rule is to be given a chance to achieve its objectives. These
evidentiary difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a lack
of direct evidence that the government of Honduras was involved in Velasquez
Rodriguez disappearance adopted a relaxed and informal evidentiary standard, and
established the rule that presumes governmental responsibility for a disappearance
if it can be proven that the government carries out a general practice of enforced
disappearances and the specific case can be linked to that practice. [154] The IACHR
took note of the realistic fact that enforced disappearances could be proven only
through circumstantial or indirect evidence or by logical inference; otherwise, it
was impossible to prove that an individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct
evidence, whether testimonial or documentary, is not the only type of
evidence that may be legitimately considered in reaching a
decision. Circumstantial evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions consistent with the
facts.

131. Circumstantial or presumptive evidence is especially important


in allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the
kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR relied
on circumstantial evidence including the hearsay testimony of Zenaida
Velsquez, the victims sister, who described Manfredos kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped by men in
civilian clothes in broad daylight. She also told the Court that a former Honduran
military official had announced that Manfredo was kidnapped by a special military
squadron acting under orders of the Chief of the Armed Forces.[155] The IACHR
likewise considered the hearsay testimony of a second witness who asserted that he
had been told by a Honduran military officer about the disappearance, and a third
witness who testified that he had spoken in prison to a man who identified himself
as Manfredo.[156]

Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the problem if a wrong is
addressed by the commission of another wrong. On the other hand, we cannot be
very strict in our evidentiary rules and cannot consider evidence the way we do in
the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not strictly
observed. Thus, while we must follow the substantial evidence rule, we must
observe flexibility in considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of
reason i.e., to the relevance of the evidence to the issue at hand and its

consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is
not at all novel in the Philippine legal system. In child abuse cases, Section 28 of
the Rule on Examination of a Child Witness [157] is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the right
of cross-examination by the adverse party. The admission of the statement is
determined by the court in light of specified subjective and objective
considerations that provide sufficient indicia of reliability of the child witness.
[158]
These requisites for admission find their counterpart in the present case under
the above-described conditions for the exercise of flexibility in the consideration of
evidence, including hearsay evidence, in extrajudicial killings and enforced
disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we have
cited?
The Convention defines enforced disappearance as the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or acquiescence
of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law.[159] Under this definition, the
elements that constitute enforced disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons acting
with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the
fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]

We find no direct evidence indicating how the victim actually


disappeared. The direct evidence at hand only shows that Tagitis went out of the
ASY Pension House after depositing his room key with the hotel desk and was
never seen nor heard of again. The undisputed conclusion, however, from all
concerned the petitioner, Tagitis colleagues and even the police authorities is that
Tagistis disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition and testimony, as
we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondents allegation
that Tagistis was under CIDG Zamboanga custody stands on record, but it is not
supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information
as her bases for her allegation that Tagistis had been placed under government
custody (in contrast with CIDG Zamboanga custody). The first was an unnamed
friend in Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis was in good
hands. Nothing came out of this claim, as both the respondent herself and her
witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part,
admitted the meeting with the respondent but denied giving her any information
about the disappearance.

The more specific and productive source of information was Col.


Kasim, whom the respondent, together with her witness Mrs. Talbin, met in Camp
Katitipan in Davao City. To quote the relevant portions of the respondents
testimony:
Q: Were you able to speak to other military officials regarding the
whereabouts of your husband particularly those in charge of any
records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer,
Col. Casim, told me that my husband is being abducted
[sic] because he is under custodial investigation because he is
allegedly parang liason ng J.I., sir.
Q: What is J.I.?
A: Jemaah Islamiah, sir.
Q: Was there any information that was read to you during one of those
visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he
said those reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a
copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:


Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, maam.

Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?
A: Yes, maam.
Q: And you mentioned that he showed you a report?
A: Yes, maam.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those
[sic] were highly confidential. That is a military report, maam.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, maam.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao
Oriental, maam.[162]
xxxx
Q: When you were told that your husband is in good hands, what was
your reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with
other people na parang mga terorista na mga tao. Tapos at the
end of the report is [sic] under custodial investigation.So I told
him Colonel, my husband is sick. He is diabetic at nagmemaintain
yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan
siya ng gamot, maam.[163]
xxxx

Q: You mentioned that you received information that Engineer Tagitis is


being held by the CIDG in Zamboanga, did you go to CIDG
Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal
instead. Enough na yun na effort ko because I know that they
would deny it, maam.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate


her testimony that her husband was abducted and held under custodial
investigation by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime
November 24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan
during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?

A: The first time we met with [him] I asked him if he knew of the exact
location, if he can furnish us the location of Engr. Tagitis. And he
was reading this report. He told us that Engr. Tagitis is in good
hands. He is with the military, but he is not certain whether he
is with the AFP or PNP. He has this serious case. He was
charged of terrorism because he was under surveillance from
January 2007 up to the time that he was abducted. He told us
that he was under custodial investigation. As Ive said earlier,
he was seen under surveillance from January. He was seen
talking to Omar Patik, a certain Santos of Bulacan who is also
a Balik Islam and charged with terrorism. He was seen
carrying boxes of medicines.Then we asked him how long will
he be in custodial investigation. He said until we can get some
information. But he also told us that he cannot give us that report
because it was a raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in document
form, in a piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I dont know
if it was computerized but Im certain that it was typewritten. Im
not sure if it used computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he
was reading in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.[165]
xxxx
Q: Were you informed as to the place where he was being kept during
that time?
A: He did not tell us where he [Tagitis] was being kept. But he
mentioned this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as Ive mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial
investigation, Engineer Tagitis will be released. [Emphasis
supplied][166]

Col. Kasim never denied that he met with the respondent and her friends,
and that he provided them information based on the input of an unnamed asset. He
simply claimed in his testimony that the informal letter he received from his
informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He
also stressed that the information he provided the respondent was merely a raw
report from barangay intelligence that still needed confirmation and follow up as
to its veracity.[167]
To be sure, the respondents and Mrs. Talbins testimonies were far from
perfect, as the petitioners pointed out. The respondent mistakenly characterized
Col. Kasim as a military officer who told her that her husband is being abducted
because he is under custodial investigation because he is allegedly parang liason
ng J.I. The petitioners also noted that Mrs. Talbins testimony imputing certain
statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not
certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim
is a high ranking police officer who would certainly know that the PNP is not part
of the military.
Upon deeper consideration of these inconsistencies, however, what appears
clear to us is that the petitioners never really steadfastly disputed or presented
evidence to refute the credibility of the respondent and her witness, Mrs.
Talbin. The inconsistencies the petitioners point out relate, more than anything
else, to details that should not affect the credibility of the respondent and Mrs.
Talbin; the inconsistencies are not on material points.[168] We note, for example, that
these witnesses are lay people in so far as military and police matters are
concerned, and confusion between the police and the military is not unusual. As a
rule, minor inconsistencies such as these indicate truthfulness rather than
prevarication[169]and only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the latter cannot

but generate suspicion that the material circumstances they testified to were
integral parts of a well thought of and prefabricated story.[170]
Based on these considerations and the unique evidentiary situation in
enforced disappearance cases, we hold it duly established that Col. Kasim
informed the respondent and her friends, based on the informants letter, that
Tagitis, reputedly a liaison for the JI and who had been under surveillance
since January 2007, was in good hands and under custodial investigation for
complicity with the JI after he was seen talking to one Omar Patik and a
certain Santos of Bulacan, a Balik Islam charged with terrorism. The
respondents and Mrs. Talbins testimonies cannot simply be defeated by Col.
Kasims plain denial and his claim that he had destroyed his informants letter, the
critical piece of evidence that supports or negates the parties conflicting claims.
Col. Kasims admitted destruction of this letter effectively, a suppression of this
evidence raises the presumption that the letter, if produced, would be proof of what
the respondent claimed.[171] For brevity, we shall call the evidence of what Col.
Kasim reported to the respondent to be the Kasim evidence.
Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was
due to action with government participation, knowledge or consent and that he
was held for custodial investigation. We note in this regard that Col. Kasim was
never quoted to have said that the custodial investigation was by the CIDG
Zamboanga. The Kasim evidence only implies government intervention through
the use of the term custodial investigation, and does not at all point to CIDG
Zamboanga as Tagitis custodian.
Strictly speaking, we are faced here with a classic case of hearsay
evidence i.e., evidence whose probative value is not based on the personal
knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself)

but on the knowledge of some other person not on the witness stand (the
informant).[172]
To say that this piece of evidence is incompetent and inadmissible evidence
of what it substantively states is to acknowledge as the petitioners effectively
suggest that in the absence of any direct evidence, we should simply dismiss the
petition. To our mind, an immediate dismissal for this reason is no different from a
statement that the Amparo Rule despite its terms is ineffective, as it cannot allow
for the special evidentiary difficulties that are unavoidably present
in Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with the
intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we have no choice but
to meet the evidentiary difficulties inherent in enforced disappearances with the
flexibility that these difficulties demand.
To give full meaning to our Constitution and the rights it protects, we hold
that, as in Velasquez, we should at least take a close look at the available evidence
to determine the correct import of every piece of evidence even of those usually
considered inadmissible under the general rules of evidence taking into account the
surrounding circumstances and the test of reason that we can use as basic minimum
admissibility requirement. In the present case, we should at least determine
whether the Kasim evidence before us is relevant and meaningful to the
disappearance of Tagistis and reasonably consistent with other evidence in the
case.
The evidence about Tagitis personal circumstances surrounded him with an
air of mystery. He was reputedly a consultant of the World Bank and a Senior

Honorary Counselor for the IDB who attended a seminar in Zamboanga and
thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he arrived
in Jolo. Nothing in the records indicates the purpose of his overnight sojourn in
Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that
Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli
later on stated that he never accused Tagitis of taking away money held in trust,
although he confirmed that the IDB was seeking assistance in locating funds of
IDB scholars deposited in Tagitis personal account. Other than these pieces of
evidence, no other inform