SECOND DIVISION

G.R. No. 197597 April 8, 2015

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF DATUKAN MALANG SALIBO,
DATUKAN MALANG SALIBO, Petitioner,
vs.
WARDEN, QUEZON CITY JAIL ANNEX, BJMP BUILDING, CAMP BAGONG DIWA, TAGUIG CITY
and all other persons acting on his behalf and/or having custody of DATUKAN MALANG
SALIBO, Respondents.

DECISION

LEONEN, J.:

Habeas corpus is the proper remedy for a person deprived of liberty due to mistaken identity. In such
cases, the person is not under any lawful process and is continuously being illegally detained.

This is a Petition for Review on Certiorari of the Court of Appeals Decision reversing the
1 2

Decision of the Regional Trial Court, Branch 153, Pasig City (Taguig Hall of Justice) granting
3

Datukan Malang Salibos Petition for Habeas Corpus.

From November 7, 2009 to December 19, 2009, Datukan Malang Salibo (Salibo) and other Filipinos
were allegedly in Saudi Arabia for the Hajj Pilgrimage. "While in Saudi Arabia, . . . Salibo visited and
4

prayed in the cities of Medina, Mecca, Arpa, Mina and Jeddah." He returned to the Philippines on
5

December 20, 2009. 6

On August 3, 2010, Salibo learned that police officers of Datu Hofer Police Station in Maguindanao
suspected him to be Butukan S. Malang. 7

Butukan S. Malang was one of the 197 accused of 57 counts of murder for allegedly participating in
the November 23, 2009 Maguindanao Massacre. He had a pending warrant of arrest issued by the
trial court in People of the Philippines v. Datu Andal Ampatuan, Jr., et al.
8

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

To support his allegations, Salibo presented to the police "pertinent portions of his passport,
boarding passes and other documents" tending to prove that a certain Datukan Malang Salibo was
10

in Saudi Arabia from November 7 to December 19, 2009. 11

The police officers initially assured Salibo that they would not arrest him because he was not
Butukan S. Malang. 12

Afterwards, however, the police officers apprehended Salibo and tore off page two of his passport
that evidenced his departure for Saudi Arabia on November 7, 2009. They then detained Salibo at
the Datu Hofer Police Station for about three (3) days. 13
The police officers transferred Salibo to the Criminal Investigation and Detection Group in Cotabato
City, where he was detained for another 10 days. While in Cotabato City, the Criminal Investigation
and Detention Group allegedly made him sign and affix his thumbprint on documents. 14

On August 20, 2010, Salibo was finally transferred to the Quezon City Jail Annex, Bureau of Jail
Management and Penology Building, Camp Bagong Diwa, Taguig City, where he is currently
detained. 15

On September 17, 2010, Salibo filed before the Court of Appeals the Urgent Petition for Habeas
Corpus questioning the legality of his detention and deprivation of his liberty. He maintained that he
16 17

is not the accused Butukan S. Malang. 18

In the Resolution dated September 21, 2010,the Court of Appeals issued a Writ of Habeas Corpus,
19

making the Writ returnable to the Second Vice Executive Judge of the Regional Trial Court, Pasig
City (Taguig Hall of Justice). The Court of Appeals ordered the Warden of the Quezon City Jail
20

Annex to file a Return of the Writ one day before the scheduled hearing and produce the person of
Salibo at the 10:00 a.m. hearing set on September 27, 2010. Proceedings before the trial court
21

On September 27, 2010, the jail guards of the Quezon City Jail Annex brought Salibo before the trial
court. The Warden, however, failed to file a Return one day before the hearing. He also appeared
without counsel during the hearing.22

Thus, the trial court canceled the hearing and reset it to September 29, 2010 at 2:00 p.m. 23

On September 28, 2010, the Warden filed the Return of the Writ. However, during the September 29,
2010 hearing on the Return, the Warden appeared with Atty. Romeo L. Villante, Jr., Legal
Officer/Administering Officer of the Bureau of Jail Management and Penology. Salibo questioned
24

the appearance of Atty. Romeo L. Villante, Jr. on behalf of the Warden and argued that only the
Office of the Solicitor General has the authority to appear on behalf of a respondent in a habeas
corpus proceeding. 25

The September 29, 2010 hearing, therefore, was canceled. The trial court reset the hearing on the
Return to October 1, 2010 at 9:00 a.m. 26

The Return was finally heard on October 1, 2010. Assistant Solicitors Noel Salo and Isar Pepito
appeared on behalf of the Warden of the Quezon City Jail Annex and argued that Salibos Petition
for Habeas Corpus should be dismissed. Since Salibo was charged under a valid Information and
Warrant of Arrest, a petition for habeas corpus was "no longer availing." Salibo countered that the
27

Information, Amended Information, Warrant of Arrest, and Alias Warrant of Arrest referred to by the
Warden all point to Butukan S. Malang, not Datukan Malang Salibo, as accused. Reiterating that he
was not Butukan S. Malang and that he was in Saudi Arabia on the day of the Maguindanao
Massacre, Salibo pleaded the trial court to order his release from detention. 28

The trial court found that Salibo was not "judicially charged" under any resolution, information, or
29

amended information. The Resolution, Information, and Amended Information presented in court did
not charge Datukan Malang Salibo as an accused. He was also not validly arrested as there was no
Warrant of Arrest or Alias Warrant of Arrest against Datukan Malang Salibo. Salibo, the trial court
ruled, was not restrained of his liberty under process issued by a court.
30

The trial court was likewise convinced that Salibo was not the Butukan S. Malang charged with
murder in connection with the Maguindanao Massacre. The National Bureau of Investigation
Clearance dated August 27, 2009 showed that Salibo has not been charged of any crime as of the
date of the certificate. A Philippine passport bearing Salibos picture showed the name "Datukan
31

Malang Salibo." 32

Moreover, the trial court said that Salibo "established that [he] was out of the country" from
33

November 7, 2009 to December 19, 2009. This fact was supported by a Certification from Saudi
34

Arabian Airlines confirming Salibos departure from and arrival in Manila on board its flights. A Flight
35

Manifest issued by the Bureau of Immigration and Saudi Arabian Airlines Ticket No. 0652113 also
showed this fact. 36

Thus, in the Decision dated October 29, 2010, the trial court granted Salibos Petition for Habeas
Corpus and ordered his immediate release from detention.

Proceedings before the Court of Appeals

On appeal by the Warden, however, the Court of Appeals reversed and set aside the trial courts
37

Decision. Through its Decision dated April 19, 2011, the Court of Appeals dismissed Salibos Petition
38

for Habeas Corpus.

Contrary to the trial courts finding, the Court of Appeals found that Salibos arrest and subsequent
detention were made under a valid Information and Warrant of Arrest. Even assuming that Salibo
39

was not the Butukan S. Malang named in the Alias Warrant of Arrest, the Court of Appeals said that
"[t]he orderly course of trial must be pursued and the usual remedies exhausted before the writ [of
habeas corpus] may be invoked[.]" According to the Court of Appeals, Salibos proper remedy was
40

a Motion to Quash Information and/or Warrant of Arrest. 41

Salibo filed a Motion for Reconsideration, which the Court of Appeals denied in the
42

Resolution dated July 6, 2011.

43

Proceedings before this court

On July 28, 2011, petitioner Salibo filed before this court the Petition for Review (With Urgent
44

Application for a Writ of Preliminary Mandatory Injunction). Respondent Warden filed a

Comment, after which petitioner Salibo filed a Reply.
45 46

Petitioner Salibo maintains that he is not the Butukan S. Malang charged with 57 counts of murder
before the Regional Trial Court, Branch 221, Quezon City. Thus, contrary to the Court of Appeals
finding, he, Datukan Malang Salibo, was not duly charged in court. He is being illegally deprived of
his liberty and, therefore, his proper remedy is a Petition for Habeas Corpus. Petitioner Salibo adds
47

that respondent Warden erred in appealing the Decision of the Regional Trial Court, Branch 153,
Pasig City before the Court of Appeals. Although the Court of Appeals delegated to the trial court the
authority to hear respondent Warden on the Return, the trial courts Decision should be deemed a
Decision of the Court of Appeals. Therefore, respondent Warden should have directly filed his appeal
before this court. 48

As for respondent Warden, he maintains that petitioner Salibo was duly charged in court. Even
assuming that he is not the Butukan S. Malang named in the Alias Warrant of Arrest, petitioner
Salibo should have pursued the ordinary remedy of a Motion to Quash Information, not a Petition for
Habeas Corpus. 49

The issues for our resolution are:

First, whether the Decision of the Regional Trial Court, Branch 153, Pasig City on petitioner Salibos
Petition for Habeas Corpus was appealable to the Court of Appeals; and

Second, whether petitioner Salibos proper remedy is to file a Petition for Habeas Corpus.

We grant the Petition.

Contrary to petitioner Salibos claim, respondent Warden correctly appealed before the Court of
Appeals.

An application for a writ of habeas corpus may be made through a petition filed before this court or
any of its members, the Court of Appeals or any of its members in instances authorized by law, or
50 51

the Regional Trial Court or any of its presiding judges. The court or judge grants the writ and
52

requires the officer or person having custody of the person allegedly restrained of liberty to file a
return of the writ. A hearing on the return of the writ is then conducted.
53 54

The return of the writ may be heard by a court apart from that which issued the writ. Should the
55

court issuing the writ designate a lower court to which the writ is made returnable, the lower court
shall proceed to decide the petition of habeas corpus. By virtue of the designation, the lower court
"acquire[s] the power and authority to determine the merits of the [petition for habeas
corpus.]" Therefore, the decision on the petition is a decision appealable to the court that has
56

appellate jurisdiction over decisions of the lower court. 57

In Saulo v. Brig. Gen. Cruz, etc, "a petition for habeas corpus was filed before this Court . . . [o]n
58

behalf of . . . Alfredo B. Saulo [(Saulo)]." This court issued a Writ of Habeas Corpus and ordered
59

respondent Commanding General of the Philippine Constabulary to file a Return of the Writ. This
court made the Writ returnable to the Court of First Instance of Manila. 60

After hearing the Commanding General on the Return, the Court of First Instance denied Saulos
Petition for Habeas Corpus. 61

Saulo appealed before this court, arguing that the Court of First Instance heard the Petition for
Habeas Corpus "not by virtue of its original jurisdiction but merely delegation[.]" Consequently, "this
62

Court should have the final say regarding the issues raised in the petition, and only [this courts
decision] . . . should be regarded as operative." 63

This court rejected Saulos argument and stated that his "logic is more apparent than real." It ruled
64

that when a superior court issues a writ of habeas corpus, the superior court only resolves whether
the respondent should be ordered to show cause why the petitioner or the person in whose behalf
the petition was filed was being detained or deprived of his or her liberty. However, once the
65

superior court makes the writ returnable to a lower court as allowed by the Rules of Court, the lower
court designated "does not thereby become merely a recommendatory body, whose findings and
conclusion[s] are devoid of effect[.]" The decision on the petition for habeas corpus is a decision of
66

the lower court, not of the superior court.

In Medina v. Gen. Yan, Fortunato Medina (Medina) filed before this court a Petition for Habeas
67

Corpus. This court issued a Writ of Habeas Corpus, making it returnable to the Court of First
Instance of Rizal, Quezon City. After trial on the merits, the Court of First Instance granted Medinas
Petition for Habeas Corpus and ordered that Medina be released from detention. The Office of the
68
Solicitor General filed a Notice of Appeal before the Court of Appeals. Atty. Amelito Mutuc, counsel
69

for Medina, filed before the Court of Appeals a "Motion for Certification of Appeal to the Supreme
Court." The Court of Appeals, however, denied the Motion. 70

This court ruled that the Court of Appeals correctly denied the "Motion for Certification of Appeal to
the Supreme Court," citing Saulo as legal basis. The Court of First Instance of Rizal, in deciding
71

Medinas Petition for Habeas Corpus, "acquired the power and authority to determine the merits of
the case[.]" Consequently, the decision of the Court of First Instance of Rizal on Medinas Petition
72

for Habeas Corpus was appealable to the Court of Appeals. 73

In this case, petitioner Salibo filed his Petition for Habeas Corpus before the Court of Appeals. The
Court of Appeals issued a Writ of Habeas Corpus, making it returnable to the Regional Trial Court,
Branch 153, Pasig City. The trial court then heard respondent Warden on his Return and decided the
Petition on the merits.

Applying Saulo and Medina, we rule that the trial court "acquired the power and authority to
determine the merits" of petitioner Salibos Petition. The decision on the Petition for Habeas
74

Corpus, therefore, was the decision of the trial court, not of the Court of Appeals. Since the Court of
Appeals is the court with appellate jurisdiction over decisions of trial courts, respondent Warden
75

correctly filed the appeal before the Court of Appeals.

II

Called the "great writ of liberty[,]" the writ of habeas corpus "was devised and exists as a speedy
76

and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient
defense of personal freedom." The remedy of habeas corpus is extraordinary and summary in
77 78 79

nature, consistent with the laws "zealous regard for personal liberty." Under Rule 102, Section 1 of
80

the Rules of Court, the writ of habeas corpus "shall extend to all cases of llegal 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." The primary purpose of the writ "is to inquire
81

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
82

sufficient."
83

The nature of the restraint of liberty need not be related to any offense so as to entitle a person to
the efficient remedy of habeas corpus. It may be availed of as a post-conviction remedy or when 84

there is an alleged violation of the liberty of abode. In other words, habeas corpus effectively
85

substantiates the implied autonomy of citizens constitutionally protected in the right to liberty in
Article III, Section 1 of the Constitution. Habeas corpus being a remedy for a constitutional right,
86

courts must apply a conscientious and deliberate level of scrutiny so that the substantive right to
liberty will not be further curtailed in the labyrinth of other processes. 87

In Gumabon, et al. v. Director of the Bureau of Prisons, Mario Gumabon (Gumabon), Blas
88

Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito), Epifanio Padua (Padua), and Paterno
Palmares (Palmares) were convicted of the complex crime of rebellion with murder. They
commenced serving their respective sentences of reclusion perpetua. 89

While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving their sentences, this court
promulgated People v. Hernandez in 1956, ruling that the complex crime of rebellion with murder
90

does not exist. 91

Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and Palmares filed a
Petition for Habeas Corpus. They prayed for their release from incarceration and argued that the
Hernandez doctrine must retroactively apply to them. 92

This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares properly availed of a
petition for habeas corpus. Citing Harris v. Nelson, this court said:
93 94

[T]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom
against arbitrary and lawless state action. . . . The scope and flexibility of the writ its capacity to
reach all manner of illegal detention its ability to cut through barriers of form and procedural
mazes have always been emphasized and jealously guarded by courts and lawmakers. The very
nature of the writ demands that it be administered with the initiative and flexibility essential to insure
that miscarriages of justice within its reach are surfaced and corrected. 95

In Rubi v. Provincial Board of Mindoro, the Provincial Board of Mindoro issued Resolution No. 25,
96

Seriesof 1917. The Resolution ordered the Mangyans removed from their native habitat and
compelled them to permanently settle in an 800-hectare reservation in Tigbao. Under the Resolution,
Mangyans who refused to establish themselves in the Tigbao reservation were imprisoned. 97

An application for habeas corpus was filed before this court on behalf of Rubi and all the other
Mangyans being held in the reservation. Since the application questioned the legality of deprivation
98

of liberty of Rubi and the other Mangyans, this court issued a Writ of Habeas Corpus and ordered
the Provincial Board of Mindoro to make a Return of the Writ. 99

A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban. "[T]o exterminate
100

vice," Mayor Justo Lukban of Manila ordered the brothels in Manila closed. The female sex workers
101

previously employed by these brothels were rounded up and placed in ships bound for Davao. The
women were expelled from Manila and deported to Davao without their consent. 102

On application by relatives and friends of some of the deported women, this court issued a Writ of
Habeas Corpus and ordered Mayor Justo Lukban, among others, to make a Return of the Writ.
Mayor Justo Lukban, however, failed to make a Return, arguing that he did not have custody of the
women. 103

This court cited Mayor Justo Lukban in contempt of court for failure to make a Return of the
Writ. As to the legality of his acts, this court ruled that Mayor Justo Lukban illegally deprived the
104

women he had deported to Davao of their liberty, specifically, of their privilege of domicile. It said
105

that the women, "despite their being in a sense lepers of society[,] are nevertheless not chattels but
Philippine citizens protected by the same constitutional guaranties as are other citizens[.]" The 106

women had the right "to change their domicile from Manila to another locality." 107

The writ of habeas corpus is different from the final decision on the petition for the issuance of the
writ. It is the writ that commands the production of the body of the person allegedly restrained of his
or her liberty. On the other hand, it is in the final decision where a court determines the legality of the
restraint.

Between the issuance of the writ and the final decision on the petition for its issuance, it is the
issuance of the writ that is essential. The issuance of the writ sets in motion the speedy judicial
inquiry on the legality of any deprivation of liberty. Courts shall liberally issue writs of habeas corpus
even if the petition for its issuance "on [its] face [is] devoid of merit[.]" Although the privilege of the
108

writ of habeas corpus may be suspended in cases of invasion, rebellion, or when the public safety
requires it, the writ itself may not be suspended.
109 110
 III

It is true that a writ of habeas corpus may no longer be issued if the person allegedly deprived of
liberty is restrained under a lawful process or order of the court. The restraint then has become
111

legal, and the remedy of habeas corpus is rendered moot and academic.
112 113

Rule 102, Section 4 of the Rules of Court provides:

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 Ilagan v. Hon. Ponce Enrile, elements of the Philippine Constabulary-Integrated National Police
114

arrested Atty. Laurente C. Ilagan (Atty. Ilagan) by virtue of a Mission Order allegedly issued by then
Minister of National Defense, Juan Ponce Enrile (Minister Enrile). On the day of Atty. Ilagans arrest,
15 from the Integrated Bar of the Philippines Davao Chapter visited Atty. Ilagan in Camp Catitipan,
where he was detained. 115

Among Atty. Ilagans visitors was Atty. Antonio Arellano (Atty. Arellano). Atty. Arellano, however, no
longer left Camp Catitipan as the military detained and arrested him based on an unsigned Mission
Order.116

Three (3) days after the arrest of Attys. Ilagan and Arellano, the military informed the Integrated Bar
of the Philippines Davao Chapter of the impending arrest of Atty. Marcos Risonar (Atty. Risonar). To
verify his arrest papers, Atty. Risonar went to Camp Catitipan. LikeAtty. Arellano, the military did not
allow Atty. Risonar toleave. He was arrested based on a Mission Order signed by General
Echavarria, Regional Unified Commander. 117

The Integrated Bar of the Philippines, the Free Legal Assistance Group, and the Movement of
Attorneys for Brotherhood, Integrity and Nationalism filed before this court a Petition for Habeas
Corpus in behalf of Attys. Ilagan, Arellano, and Risonar. 118

This court issued a Writ of Habeas Corpus and required Minister Enrile, Armed Forces of the
Philippines Acting Chief of Staff Lieutenant General Fidel V. Ramos (General Ramos), and Philippine
Constabulary-Integrated National Police Regional Commander Brigadier General Dionisio Tan-
Gatue (General Tan-Gatue) to make a Return of the Writ. This court set the hearing on the Return
119

on May 23, 1985. 120

In their Return, Minister Enrile, General Ramos, and General Tan-Gatue contended that the privilege
of the Writ of Habeas Corpus was suspended as to Attys. Ilagan, Arellano, and Risonar by virtue of
Proclamation No. 2045-A. The lawyers, according to respondents, allegedly "played active roles in
121

organizing mass actions of the Communist Party of the Philippines and the National Democratic
Front."122
After hearing respondents on their Return, this court ordered the temporary release of Attys. Ilagan,
Arellano, and Risonar on the recognizance of their counsels, retired Chief Justice Roberto
Concepcion and retired Associate Justice Jose B.L. Reyes. 123

Instead of releasing Attys. Ilagan, Arellano, and Risonar, however, Minister Enrile, General Ramos,
and General Tan-Gatue filed a Motion for Reconsideration. They filed an Urgent
124

Manifestation/Motion stating that Informations for rebellion were filed against Attys. Ilagan, Arellano,
and Risonar. They prayed that this court dismiss the Petition for Habeas Corpus for being moot and
academic. 125

The Integrated Bar of the Philippines, the Free Legal Assistance Group, and the Movement of
Attorneys for Brotherhood, Integrity and Nationalism opposed the motion. According to them, no
preliminary investigation was conducted before the filing of the Information. Attys. Ilagan, Arellano,
and Risonar were deprived of their right to due process. Consequently, the Information was void. 126

This court dismissed the Petition for Habeas Corpus, ruling that it became moot and academic with
the filing of the Information against Attys. Ilagan, Arellano, and Risonar in court:127

As contended by respondents, the petition herein has been rendered moot and academic by virtue
of the filing of an Information against them for Rebellion, a capital offense, before the Regional Trial
Court of Davao City and the issuance of a Warrant of Arrest against them. The function of the special
proceeding of habeas corpusis to inquire into the legality of ones detention. Now that the detained
attorneys incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed
against them before the Regional Trial Court of Davao City, the remedy of habeas corpus no longer
lies. The Writ had served its purpose. (Citations omitted)
128

This court likewise dismissed the Petitions for habeas corpus in Umil v. Ramos. Roberto Umil,
129

Rolando Dural,Renato Villanueva, Amelia Roque, Wilfredo Buenaobra, Atty. Domingo Anonuevo,
Ramon Casiple, Vicky A. Ocaya, Deogracias Espiritu, and Narciso B. Nazareno were all arrested
without a warrant for their alleged membership in the Communist Party of the Philippines/New
Peoples Army. 130

During the pendency of the habeas corpus proceedings, however, Informations against them were
filed before this court. The filing of the Informations, according to this court, rendered the Petitions for
habeas corpus moot and academic, thus: 131

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. (Emphasis in the original) In such cases,
132

instead of availing themselves of the extraordinary remedy of a petition for habeas corpus, persons
restrained under a lawful process or order of the court must pursue the orderly course of trial and
exhaust the usual remedies. This ordinary remedy is to file a motion to quash the information or the
133

warrant of arrest. 134

At any time before a plea is entered, the accused may file a motion to quash complaint or
135

information based on any of the grounds enumerated in Rule 117, Section 3 of the Rules of Court:

SEC. 3. Grounds.The accused may move to quash the complaint or information on any of the
following grounds:
 (a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

(e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for various
offenses is prescribed by law;

(g) That the criminal action or liability has been extinguished;

(h) That it contains averments which, if true, would constitute a legal excuse or justification;
and (i) That the accused has been previously convicted or acquitted of the offense charged,
or the case against him was dismissed or otherwise terminated without his express consent.

In filing a motion to quash, the accused "assails the validity of a criminal complaint or information
filed against him [or her] for insufficiency on its face in point of law, or for defects which are apparent
in the face of the information." If the accused avails himself or herself of a motion to quash, the
136

accused "hypothetical[ly] admits the facts alleged in the information." "Evidence aliunde or matters
137

extrinsic from the information are not to be considered." 138

"If the motion to quash is based on an alleged defect of the complaint or information which can be
cured by amendment, the court shall order [the] amendment [of the complaint or information]." If 139

the motion to quash is based on the ground that the facts alleged in the complaint or information do
not constitute an offense, the trial court shall give the prosecution "an opportunity to correct the
defect by amendment." If after amendment, the complaint or information still suffers from the same
140

defect, the trial court shall quash the complaint or information. 141

IV

However, Ilagan and Umil do not apply to this case. Petitioner Salibo was not arrested by virtue of
142

any warrant charging him of an offense. He was not restrained under a lawful process or an order of
a court. He was illegally deprived of his liberty, and, therefore, correctly availed himself of a Petition
for Habeas Corpus.

The Information and Alias Warrant of Arrest issued by the Regional Trial Court, Branch 221, Quezon
City in People of the Philippines v. Datu Andal Ampatuan, Jr., et al.charged and accused Butukan S.
Malang, not Datukan Malang Salibo, of57 counts of murder in connection with the Maguindanao
Massacre.

Furthermore, petitioner Salibo was not validly arrested without a warrant. Rule 113, Section 5 of the
Rules of Court enumerates the instances when a warrantless arrest may be made:

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 just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances 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 is 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) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police Station to clear
his name and to prove that he is not the accused Butukan S. Malang. When petitioner Salibo was in
the presence of the police officers of Datu Hofer Police Station, he was neither committing nor
attempting to commit an offense. The police officers had no personal knowledge of any offense that
he might have committed. Petitioner Salibo was also not an escapee prisoner.

The police officers, therefore, had no probable cause to arrest petitioner Salibo without a warrant.
They deprived him of his right to liberty without due process of law, for which a petition for habeas
corpus may be issued.

The arrest of petitioner Salibo is similar to the arrest of Atty. Risonar in the "disturbing" case of
143

Ilagan. Like petitioner Salibo, Atty. Risonar went to Camp Catitipan to verify and contest any arrest
144

papers against him. Then and there, Atty. Risonar was arrested without a warrant. In his dissenting
opinion in Ilagan, Justice Claudio Teehankee stated that the lack of preliminary investigation
145

deprived Atty. Risonar, together with Attys. Ilagan and Arellano, of his right to due process of law a
ground for the grant of a petition for habeas corpus: The majority decision holds that the filing of the
146

information without preliminary investigation falls within the exceptions of Rule 112, sec. 7 and Rule
113, sec. 5 of the 1985 Rules on Criminal Procedure. Again, this is erroneous premise. The fiscal
misinvoked and misapplied the cited rules. The petitioners are not persons "lawfully arrested without
a warrant." The fiscal could not rely on the stale and inoperative PDA of January 25, 1985.
Otherwise, the rules would be rendered nugatory, if all that was needed was to get a PDA and then
serve it at ones 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 citizens 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. (Emphasis in the
147

original, citation omitted)

Petitioner Salibos proper remedy is not a Motion to Quash Information and/or Warrant of Arrest.
None of the grounds for filing a Motion to Quash Information apply to him. Even if petitioner Salibo
filed a Motion to Quash, the defect he alleged could not have been cured by mere amendment of the
Information and/or Warrant of Arrest. Changing the name of the accused appearing in the
Information and/or Warrant of Arrest from "Butukan S. Malang" to "Datukan Malang Salibo" will not
cure the lack of preliminary investigation in this case.

A motion for reinvestigation will not cure the defect of lack of preliminary investigation. The
Information and Alias Warrant of Arrest were issued on the premise that Butukan S. Malang and
Datukan Malang Salibo are the same person. There is evidence, however, that the person detained
by virtue of these processes is not Butukan S. Malang but another person named Datukan Malang
Salibo.

Petitioner Salibo presented in evidence his Philippine passport, his identification card from the
148

Office on Muslim Affairs, his Tax Identification Number card, and clearance from the National
149 150

Bureau of Investigation all bearing his picture and indicating the name "Datukan Malang Salibo."
151

None of these government-issued documents showed that petitioner Salibo used the alias "Butukan
S. Malang."

Moreover, there is evidence that petitioner Salibo was not in the country on November 23, 2009
when the Maguindanao Massacre occurred. 1wphi1

A Certification from the Bureau of Immigration states that petitioner Salibo departed for Saudi
152

Arabia on November 7, 2009 and arrived in the Philippines only on December 20, 2009. A
Certification from Saudi Arabian Airlines attests that petitioner Salibo departed for Saudi Arabia on
153

board Saudi Arabian Airlines Flight SV869 on November 7, 2009 and that he arrived in the
Philippines on board Saudi Arabian Airlines SV870 on December 20, 2009.

People of the Philippines v. Datu Andal Ampatuan, Jr., et al. is probably the most complex case
pending in our courts. The case involves 57 victims and 197 accused, two (2) of which have
154

become state witnesses. As of November 23, 2014, 111 of the accused have been arraigned, and
155

70 have filed petitions for bail of which 42 have already been resolved. To require petitioner Salibo
156

to undergo trial would be to further illegally deprive him of his liberty. Urgency dictates that we
resolve his Petition in his favor given the strong evidence that he is not Butukan S. Malang.

In ordering petitioner Salibos release, we are prejudging neither his guilt nor his innocence.
However, between a citizen who has shown that he was illegally deprived of his liberty without due
process of law and the government that has all the "manpower and the resources at [its]
command" to properly indict a citizen but failed to do so, we will rule in favor of the citizen. Should
157

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

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The Court of Appeals Decision
dated April 19, 2011 is REVERSED and SET ASIDE. Respondent Warden, Quezon City Jail Annex,
Bureau of Jail Management and Penology Building,Camp Bagong Diwa, Taguig, is ORDERED to
immediately RELEASE petitioner Datukan Malang Salibo from detention.

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

SO ORDERED.
XVI.2 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 of amparo 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) on August 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 AmparoReliefs. 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 OF THE WRIT OF
AMPARO is GRANTED.

The respondents SECRETARY OF NATIONAL DEFENSE and AFP

CHIEF OF STAFF are hereby REQUIRED:

1. To furnish to the petitioners and to this Court within five days from
notice of this decision all official and unofficial reports of the
investigation undertaken in connection with their case, except those
already on file herein;

2. To confirm in writing the present places of official assignment of

M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days
from notice of this decision.

3. To cause to be produced to this Court all medical reports, records and

charts, reports of any treatment given or recommended and medicines
prescribed, if any, to the petitioners, to include a list of medical and
(sic) personnel (military and civilian) who attended to them from
February 14, 2006 until August 12, 2007 within five days from notice
of this decision.
 The compliance with this decision shall be made under the signature and
oath of respondent AFP Chief of Staff or his duly authorized deputy, the
latters authority to be express and made apparent on the face of the
sworn compliance with this directive.

SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first unfurl the facts as
alleged by herein respondents:

Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San
Idelfonso, Bulacan. Respondents were not able to attend as they were not informed
of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.[11]

On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga,
San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts,
fatigue pants and army boots, entered their house and roused him. They asked him
if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not
Bestre. The armed soldier slapped him on both cheeks and nudged him in the
stomach. He was then handcuffed, brought to the rear of his house, and forced to
the ground face down. He was kicked on the hip, ordered to stand and face up to
the light, then forcibly brought near the road. He told his mother to follow him, but
three soldiers stopped her and told her to stay.[12]

Among the men who came to take him, Raymond recognized brothers Michael de
la Cruz, Madning de la Cruz, Puti de la Cruz, and Pula de la Cruz, who all acted as
lookout. They were all members of the CAFGU and residing in Manuzon, San
Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy
Mendoza, also members of the CAFGU. While he was being forcibly taken, he
also saw outside of his house two barangay councilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and armed men.[13]

The men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who took
him.Later, in his 18 months of captivity, he learned their names. The one who
drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about
40 years of age or older. The leader of the team who entered his house and
abducted him was Ganata. He was tall, thin, curly-haired and a bit old. Another
one of his abductors was George who was tall, thin, white-skinned and about 30
years old.[14]

The van drove off, then came to a stop. A person was brought inside the van and
made to sit beside Raymond. Both of them were beaten up. On the road, he
recognized the voice of the person beside him as his brother Reynaldos. The van
stopped several times until they 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 FortMagsaysay.
[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 the bartolina. The house was near the firing
range, helipad and mango trees. At dawn, soldiers marched by their house. They
were also sometimes detained in what he only knew as the DTU.[24]
At the DTU, a male doctor came to examine respondents. He checked their body
and eyes, took their urine samples and marked them. When asked how they were
feeling, they replied that they had a hard time urinating, their stomachs were
aching, and they felt other pains in their body. The next day, two ladies in white
arrived. They also examined respondents and gave them medicines, including
orasol, amoxicillin and mefenamic acid. They brought with them the results of
respondents urine test and advised them to drink plenty of water and take their
medicine. The two ladies returned a few more times. Thereafter, medicines were
sent through the master of the DTU, Master Del Rosario alias Carinyoso at
Puti. Respondents were kept in the DTU for about two weeks.While there, he met a
soldier named Efren who said that Gen. Palparan ordered him to monitor and take
care of them.[25]

One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with
Efren and several other armed men wearing fatigue suits, went to a detachment in
Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks
in a big two-storey house. Hilario and Efren stayed with them. While there,
Raymond was beaten up by Hilarios men.[26]

From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Bulacan on board the Revo. They were detained in a big unfinished house inside
the compound of Kapitan for about three months. When they arrived in Sapang,
Gen. Palparan talked to them. They were brought out of the house to a basketball
court in the center of the compound and made to sit. Gen. Palparan was already
waiting, seated. He was about two arms length away from respondents. He began
by asking if respondents felt well already, to which Raymond replied in the
affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He
then asked Raymond if he would be scared if he were made to face Gen.
Palparan. Raymond responded that he would not be because he did not believe that
Gen. Palparan was an evil man.[27]

Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin?

Sumagot akong, Siyempre po, natatakot din

 Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang pagkakataon na
mabuhay, bastat sundin nyo ang lahat ng sasabihin ko sabihin mo sa
magulang mo huwag pumunta sa mga rali, sa hearing, sa Karapatan at
sa Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat
sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre
na sumuko na sa gobyerno.[28]
Respondents agreed to do as Gen. Palparan told them as they felt they could
not do otherwise. At about 3:00 in the morning, Hilario, Efren and the formers men
- the same group that abducted them - brought them to their parents
house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told him. As they were afraid,
Raymonds parents acceded. Hilario threatened Raymonds parents that if they
continued to join human rights rallies, they would never see their children
again. The respondents were then brought back to Sapang.[29]

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

leave. He was talking with the four masters who were there: Arman, Ganata,
Hilario and Cabalse.[30] When Gen. Palparan saw Raymond, he called for him. He
was in a big white vehicle. Raymond stood outside the vehicle as Gen. Palparan
told him to gain back his strength and be healthy and to take the medicine he left
for him and Reynaldo. He said the medicine was expensive at Php35.00 each, and
would make them strong. He also said that they should prove that they are on the
side of the military and warned that they would not be given another chance.
[31]
During his testimony, Raymond identified Gen. Palparan by his picture.[32]

One of the soldiers named Arman made Raymond take the medicine left by Gen.
Palparan. The medicine, named Alive, was green and yellow. Raymond and
Reynaldo were each given a box of this medicine and instructed to take one
capsule a day. Arman checked if they were getting their dose of the medicine.The
Alive made them sleep each time they took it, and they felt heavy upon waking up.
[33]

After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as Oscar, a military trainee from Sariaya, Quezon, assigned in
Bulacan. While there, he saw again Ganata, one of the men who abducted him
from his house, and got acquainted with other military men and civilians.[34]

After about three months in Sapang, Raymond was brought to Camp Tecson under
the 24th Infantry Battalion. He was fetched by three unidentified men in a big white
vehicle. Efren went with them. Raymond was then blindfolded. After a 30-minute
ride, his blindfold was removed. Chains were put on him and he was kept in the
barracks.[35]

The next day, Raymonds chains were removed and he was ordered to clean outside
the barracks. It was then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna. She told him that she was a student of the University of
the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home
and be with her parents. During the day, her chains were removed and she was
made to do the 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 thInfantry
Battalion. Raymond and Reynaldo were put in the adjoining room. At times,
Raymond and Reynaldo were threatened, and Reynaldo was beaten up.In the
daytime, their chains were removed, but were put back on at night. They were
threatened that if they escaped, their families would all be killed.[37]

On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the

detainees that they should be thankful they were still alive and should continue
along their renewed life. Before the hearing of November 6 or 8, 2006, respondents
were brought to their parents to instruct them not to attend the hearing.However,
their parents had already left for Manila. Respondents were brought back
to Camp Tecson. They stayed in that camp from September 2006 to November
2006, and Raymond was instructed to continue using the name Oscar and holding
himself out as a military trainee. He got acquainted with soldiers of the
24th Infantry Battalion whose names and descriptions he stated in his affidavit.[38]
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel,
were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan.There
were many huts in the camp. They stayed in that camp until May 8, 2007. Some
soldiers of the battalion stayed with them. While there, battalion soldiers whom
Raymond knew as Mar and Billy beat him up and hit him in the stomach with their
guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all
made to clean, cook, and help in raising livestock.[39]

Raymond recalled that when Operation Lubog was launched, Caigas and some
other soldiers brought him and Manuel with them to take and kill all sympathizers
of the NPA. They were brought to Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA members
in his house.[40] Another time, in another Operation Lubog, Raymond was brought
to Barangay Orion in a house where NPA men stayed. When they arrived, only the
old man of the house who was sick was there. They spared him and killed only his
son right before Raymonds eyes.[41]

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house. Like in Limay, the five
detainees were made to do errands and chores. They stayed in Zambales from May
8 or 9, 2007 until June 2007.[42]

In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na
kami. Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng
silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig,
walang nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa
mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at
itoy sinunog. Masansang ang amoy.

Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga

unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng
kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga
bangkay. Naamoy ko iyon nang nililinis ang bakas.
 Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang
Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na
binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng
sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila
iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.

Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa

kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang mga
bangkay sa labas ng bakod.Kinaumagahan nakita kong mayroong
sinilaban, at napakamasangsang ang amoy.

May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain

ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas
sila at hindi ko na sila nakita.

xxx xxx xxx

Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel

dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala
siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog
na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o
ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.

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

o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay
dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o
hindi.

Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami

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

Respondents started to plan their escape. They could see the highway from where
they stayed. They helped farm adjoining lands for which they were paid Php200.00
or Php400.00 and they saved their earnings. When they had saved Php1,000.00
each, Raymond asked a neighbor how he could get a cellular phone as he wanted
to exchange text messages with a girl who lived nearby. A phone was pawned to
him, but he kept it first and did not use it. They earned some more until they had
saved Php1,400.00 between them.

There were four houses in the compound. Raymond and Reynaldo were housed in
one of them while their guards lived in the other three. Caigas entrusted
respondents to Nonong, the head of the guards. Respondents house did not have
electricity. They used a lamp. There was no television, but they had a radio.In the
evening of August 13, 2007, Nonong and his cohorts had a drinking session. At
about 1:00 a.m., Raymond turned up the volume of the radio. When none of the
guards awoke and took notice, Raymond and Reynaldo proceeded towards the
highway, leaving behind their sleeping guards and barking dogs.They boarded a
bus bound for Manila and were thus freed from captivity.[45]

Reynaldo also executed an affidavit affirming the contents of Raymonds affidavit

insofar as they related to matters they witnessed together. Reynaldo added that
when they were taken from their house on February 14, 2006, he saw the faces of
his abductors before he was blindfolded with his shirt. He also named the soldiers
he got acquainted with in the 18 months he was detained. When Raymond
attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and
told that they were indeed members of the NPA because Raymond escaped. With
a .45 caliber pistol, Reynaldo was hit on the back and punched in the face until he
could no longer bear the pain.

At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal
Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a mountainous
area. He was instructed to use the name Rodel and to represent himself as a
military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along
Reynaldo in his trips. One time, he was brought to a market in San Jose, del
Monte, Bulacan and made to wait in the vehicle while Hilario was buying. He was
also brought to Tondo, Manila where Hilario delivered boxes of Alive in different
houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was
blindfolded while still in Bulacan, but allowed to remove the blindfold once
outside the province. In one of their trips, they passed
by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board,
Welcome to CampTecson.[46]

Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected
with the Medical Action Group, an organization handling cases of human rights
violations, particularly cases where torture was involved. He was requested by an
NGO to conduct medical examinations on the respondents after their escape. He
first asked them about their ordeal, then proceeded with the physical
examination. His findings showed that the scars borne by respondents were
consistent with their account of physical injuries inflicted upon them.The
examination was conducted on August 15, 2007, two days after respondents
escape, and the results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul Protocol in
conducting the examination.[47]

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

compliance with the October 25, 2007 Resolution of the Court, they filed a Return
of the Writ of Amparo admitting the abduction but denying any involvement
therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time
arrested, forcibly abducted, detained, held incommunicado, disappeared
or under the custody by the military. This is a settled issue laid to rest in
the habeas corpus case filed in their behalf by petitioners parents before
the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal
Hilario aka Rollie Castillo, as head of the 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 amparocase 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 Fort Magsaysay, 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; ex-
CAA 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 fact-
based 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 amparoonly 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 of Marbury v.
Madison.[89]

While constitutional rights can be protected under the Grave Abuse Clause through
remedies of injunction or prohibition under Rule 65 of the Rules of Court and a
petition for habeas corpus under Rule 102,[90] these remedies may not be adequate
to address the pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a petition for a
writ of amparo through summary proceedings and the availability of appropriate
interim and permanent reliefs under the Amparo Rule, 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 AmparoRule came into effect
on October 24, 2007, they moved to have their petition treated as
an amparo petition as it would be more effective and suitable to the circumstances
of the Manalo brothers enforced disappearance. The Court granted their motion.

With this backdrop, we now come to the arguments of the petitioner. Petitioners
first argument in disputing the Decision of the Court of Appeals states, viz:
 The Court of Appeals seriously and grievously erred in believing and
giving full faith and credit to the incredible uncorroborated, contradicted,
and obviously scripted, rehearsed and self-serving affidavit/testimony of
herein respondent Raymond Manalo.[94]

In delving into the veracity of the evidence, we need to mine and refine the
ore of petitioners cause of action, to determine whether the evidence presented is
metal-strong to satisfy the degree of proof required.

Section 1 of the Rule on the Writ of Amparo provides for the following
causes of action, viz:
Section 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission of
a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or

threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof
required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. The
parties shall establish their claims by substantial evidence.

xxx xxx xxx

Sec. 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied. (emphases supplied)

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

mind might accept as adequate to support a conclusion.[95]

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

We affirm the factual findings of the appellate court, largely based on respondent
Raymond Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who were sufficiently
identified by the petitioners (herein respondents) to be military personnel
and CAFGU auxiliaries.Raymond recalled that the six armed men who
barged into his house through the rear door were military men based on
their attire of fatigue pants and army boots, and the CAFGU auxiliaries,
namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and
Pula de la Cruz, all members of the CAFGU and residents of Muzon, San
Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during the
abduction. Raymond was sure that three of the six military men were
Ganata, who headed the abducting team, Hilario, who drove the van, and
George. Subsequent incidents of their long captivity, as narrated by the
petitioners, validated their assertion of the participation of the elements of
the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries.

We are convinced, too, that the reason for the abduction was the suspicion
that the petitioners were either members or sympathizers of the NPA,
considering that the abductors were looking for Ka Bestre, who turned out
to be Rolando, the brother of petitioners.

The efforts exerted by the Military Command to look into the abduction
were, at best, merely superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on the one-sided version of
the CAFGU auxiliaries involved. This one-sidedness might be due to the
fact that the Provost Marshall could delve only into the participation of
military personnel, but even then the Provost Marshall should have
refrained from outrightly exculpating the CAFGU auxiliaries he
perfunctorily investigated

Gen. Palparans participation in the abduction was also established. At the

very least, he was aware of the petitioners captivity at the hands of men in
uniform assigned to his command. In fact, he or any other officer
tendered no controversion to the firm claim of Raymond that he (Gen.
Palparan) met them in person in a safehouse in Bulacan and told them
what he wanted them and their parents to do or not to be doing. Gen.
Palparans direct and personal role in the abduction might not have been
shown but his knowledge of the dire situation of the petitioners during
their long captivity at the hands of military personnel under his command
bespoke of his indubitable command policy that unavoidably encouraged
and not merely tolerated the abduction of civilians without due process of
law and without probable cause.

In the habeas proceedings, the Court, through the Former Special Sixth
Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had anything to do with
the abduction or the detention. Hilarios involvement could not, indeed, be
then established after Evangeline Francisco, who allegedly saw Hilario
drive the van in which the petitioners were boarded and ferried following
the abduction, did not testify. (See the decision of the habeas proceedings
at rollo, p. 52)

However, in this case, Raymond attested that Hilario drove the white L-
300 van in which the petitioners were brought away from their houses
on February 14, 2006.Raymond also attested that Hilario participated in
subsequent incidents during the captivity of the petitioners, one of which
was when Hilario fetched them from Fort Magsaysay on board a Revo
and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan
where they were detained for at least a week in a house of strong
materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren)
brought them to Sapang, San Miguel, Bulacan on board the Revo, to an
unfinished house inside the compound of Kapitan where they were kept
for more or less three months. (Exhibit D, rollo, p. 205) It was there
where the petitioners came face to face with Gen. Palparan. Hilario and
Efren also brought the petitioners one early morning to the house of the
petitioners parents, where only Raymond was presented to the parents to
 relay the message from Gen. Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they would not again see their
sons should they join any rallies to denounce human rights violations.
(Exhibit D, rollo, pp. 205-206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen.
Palparan conversed on the occasion when Gen. Palparan required
Raymond to take the medicines for his health. (Exhibit D, rollo, p.
206)There were other occasions when the petitioners saw that Hilario had
a direct hand in their torture.

It is clear, therefore, that the participation of Hilario in the abduction and

forced disappearance of the petitioners was established. The participation
of other military personnel like Arman, Ganata, Cabalse and Caigas,
among others, was similarly established.

xxx xxx xxx

As to the CAFGU auxiliaries, the habeas Court found them personally

involved in the abduction. We also do, for, indeed, the evidence of their
participation is overwhelming.[101]
We reject the claim of petitioners that respondent Raymond Manalos statements
were not corroborated by other independent and credible pieces of evidence.
[102]
Raymonds affidavit and testimony were corroborated by the affidavit of
respondent Reynaldo Manalo. The testimony and medical reports prepared by
forensic specialist Dr. Molino, and the pictures of the scars left by the physical
injuries inflicted on respondents,[103] also corroborate respondents accounts of the
torture they endured while in detention. Respondent Raymond Manalos familiarity
with the facilities in Fort Magsaysay such as the DTU, as shown in his testimony
and confirmed by Lt. Col. Jimenez to be the Division Training Unit, [104] firms up
respondents story that they were detained for some time in said military facility.

In Ortiz v. Guatemala,[105] a case decided by the Inter-American Commission on

Human Rights, the Commission considered similar evidence, among others, in
finding that complainant Sister Diana Ortiz was abducted and tortured by agents of
the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured
in early November 1989. The Commissions findings of fact were mostly based on
the consistent and credible statements, written and oral, made by Sister Ortiz
regarding her ordeal.[106] These statements were supported by her recognition of
portions of the route they took when she was being driven out of the military
installation where she was detained.[107] She was also examined by a medical
doctor whose findings showed that the 111 circular second degree burns on her
back and abrasions on her cheek coincided with her account of cigarette burning
and torture she suffered while in detention.[108]

With the secret nature of an enforced disappearance and the torture perpetrated on
the victim during detention, it logically holds that much of the information and
evidence of the ordeal will come from the victims themselves, and the veracity of
their account will depend 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 the Philippines 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 person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge
At the core of this guarantee is the immunity of ones person, including the
extensions of his/her person houses, papers, and effects against government
intrusion. Section 2 not only limits the states power over a persons home and
possessions, but more importantly, protects the privacy and sanctity of the person
himself.[117] The purpose of this provision was enunciated by the Court in People v.
CFI of Rizal, Branch IX, Quezon City, viz: [118]
The purpose of the constitutional guarantee against unreasonable searches
and seizures is to prevent violations of private security in person and
property and unlawful invasion of the security of the home by officers of
the law acting under legislative or judicial sanction and to give remedy
against such usurpation when attempted. (Adams v. New York,
192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy
is an essential condition to the dignity and happiness and to the peace
and security of every individual, whether it be of home or of persons
and correspondence. (Taada and Carreon, Political Law of the
 Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable searches and seizures must
be deemed absolute as nothing is closer to a mans soul than the
serenity of his privacy and the assurance of his personal security. Any
interference allowable can only be for the best causes and reasons.
[119]
(emphases supplied)
While the right to life under Article III, Section 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 well-
founded as people react differently. The degree of fear can vary from one person to
another with the variation of the prolificacy of their imagination, strength of
character or past experience with the stimulus. Thus, in the amparo context, it is
more correct to say that the right to security is actually the freedom from
threat. Viewed in this light, the threatened with violation Clause in the latter part of
Section 1 of the Amparo Rule is a form of violation of the right to security
mentioned in the earlier part of the provision.[127]

Second, the right to security of person is a guarantee of bodily and

psychological integrity or security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, ones body cannot be searched or invaded without
a search warrant.[128] Physical injuries inflicted in the context of extralegal killings
and enforced disappearances constitute more than a search or invasion of the
body. It may constitute dismemberment, physical disabilities, and painful physical
intrusion. As the degree of physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical injuries constitute a crime against
persons because they are an affront to the bodily integrity or security of a person.[129]

Physical torture, force, and violence are a severe invasion of bodily

integrity. When employed to vitiate the free will such as to force the victim to
admit, reveal or fabricate incriminating information, it constitutes an invasion of
both bodily and psychological integrity as the dignity of the human person
includes the exercise of free will. Article III, Section 12 of the 1987 Constitution
more specifically proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means
which vitiate the free will shall be used against him (any person under
investigation for the commission of an offense). Secret detention places,
 solitary, incommunicado or other similar forms of detention are
prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will
- although not involving invasion of bodily integrity - nevertheless constitute a
violation of the right to security in the sense of freedom from threat as afore-
discussed.

Article III, Section 12 guarantees freedom from dehumanizing abuses of

persons under investigation for the commission of an offense. Victims of enforced
disappearances who are not even under such investigation should all the more be
protected from these degradations.

An overture to an interpretation of the right to security of person as a right

against torture was made by the European Court of Human Rights (ECHR) in the
recent case of Popov v. Russia.[130] In this case, the claimant, who was lawfully
detained, alleged that the state authorities had physically abused him in prison,
thereby violating his right to security of person. Article 5(1) of the European
Convention on Human Rights provides, viz: Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law ...
(emphases supplied) Article 3, on the other hand, provides that (n)o one shall be
subjected to torture or to inhuman or degrading treatment or punishment.Although
the application failed on the facts as the alleged ill-treatment was found baseless,
the ECHR relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of
domestic authorities at the time when they could reasonably have been
expected to take measures in order to ensure his security and to
investigate the circumstances in question.

xxx xxx xxx

... the authorities failed to ensure his security in custody or to comply

with the procedural obligation under Art.3 to conduct an effective
investigation into his allegations.[131] (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women has also
made a statement that the protection of the bodily integrity of women may also be
related to the right to security and liberty, viz:
gender-based violence which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general
international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against Women). These
rights and freedoms include . . . the right to liberty and security of
person.[132]
Third, the right to security of person is a guarantee of protection of
ones rights by the government. In the context of the writ of amparo, this right
is built into the guarantees of the right to life and liberty under Article III,
Section 1 of the 1987 Constitution and the right to security of person(as freedom
from threat and guarantee of bodily and psychological integrity) under Article III,
Section 2. The right to security of person in this third sense is a corollary of the
policy that the State guarantees full respect for human rights under Article II,
Section 11 of the 1987 Constitution.[133] As the government is the chief guarantor
of order and security, the Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government does not afford protection
to these rights especially when they are under threat. Protection includes
conducting effective investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez 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 7thInfantry 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.

XVI.3 BRION, J.:

We review in this petition for review on certiorari[1] the decision dated

March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.
[2]
This CA decision confirmed the enforced disappearance of Engineer Morced N.
Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary
Jean B. Tagitis (respondent). The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, petition is

hereby GRANTED. The Court hereby FINDS that this is an enforced
disappearance within the meaning of the United Nations instruments, as
used in the Amparo Rules. The privileges of the writ of amparo are
hereby extended to Engr. Morced Tagitis.

Consequently: (1) respondent GEN. EDGARDO M.

DOROMAL, Chief, Criminal Investigation and Detention Group
(CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9
Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a)
 respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP,
(b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS,
and (c) respondent SR. SUPERINTENDENT LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him
as their superior- are hereby DIRECTED to exert extraordinary
diligence and efforts, not only to protect the life, liberty and security of
Engr. Morced Tagitis, but also to extend the privileges of the writ
of amparo to Engr. Morced Tagitis and his family, and to submit a
monthly report of their actions to this Court, as a way of PERIODIC
REVIEW to enable this Court to monitor the action of respondents.

This amparo case is hereby DISMISSED as to respondent LT.

GEN. ALEXANDER YANO, Commanding General, Philippine Army,
and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task
Force Comet, Zamboanga City, both being with the military, which is a
separate and distinct organization from the police and the CIDG, in
terms of operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo a protective remedy against
violations or threats of violation against the rights to life, liberty and security.[3] It
embodies, as a remedy, the courts directive to police agencies to undertake
specified courses of action to address the disappearance of an individual, in this
case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at
least accountability, for the enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to have participated
in whatever way, by action or omission, in an enforced disappearance, as a measure
of the remedies this Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure of remedies that
should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who
carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the
Writ of Amparo is justified by our primary goal of addressing the disappearance, so
that the life of the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the considerations
and measures necessary to address these situations, may not at all be the same as
the standard measures and procedures in ordinary court actions and proceedings. In
this sense, the Rule on the Writ of Amparo[4] (Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.

THE FACTUAL ANTECEDENTS

The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They immediately checked-
in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his
return trip the following day to Zamboanga. When Kunnong returned from this
errand, Tagitis was no longer around.[5] The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his room key with
the desk.[6] Kunnong looked for Tagitis and even sent a text message to the latters
Manila-based secretary who did not know of Tagitis whereabouts and activities
either; she advised Kunnong to simply wait.[7]

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP

professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station. [8] On November 7, 2007,
Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a Petition
for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty.
Felipe P. Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano,
Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine
National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation
and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-
Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-
PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively
referred to as petitioners]. After reciting Tagitis personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take
his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his student, Arsimin
Kunnong;

8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension
house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be
contacted by phone and was not also around and his room was closed and locked;

9. Kunnong requested for the key from the desk of the pension house who [sic] assisted
him to open the room of Engr. Tagitis, where they discovered that the personal
belongings of Engr. Tagitis, including cell phones, documents and other personal
belongings were all intact inside the room;

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter
to the police authorities in Jolo, he was immediately given a ready answer that
Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;

12. Being scared with [sic] these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone
and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;

13. [Respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help
from some of their friends in the military who could help them find/locate the
whereabouts of her husband;

14. All of these efforts of the [respondent] did not produce any positive results except the
information from persons in the military who do not want to be identified that
Engr. Tagitis is in the hands of the uniformed men;

15. According to reliable information received by the [respondent], subject Engr. Tagitis
is in the custody of police intelligence operatives, specifically with the CIDG,
PNP Zamboanga City, being held against his will in an earnest attempt of the
police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondents] request and pleadings failed to produce any positive
results;

18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the
police that her husband, subject of the petition, was not missing but was with
another woman having good time somewhere, which is a clear indication of the
[petitioners] refusal to help and provide police assistance in locating her missing
husband;

19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent]of the subjects whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;

20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying [sic] to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;

21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons
that she should approach, but assured her not to worry because her husband is
[sic] in good hands;

22. The unexplained uncooperative behavior of the [petitioners] to the [respondents]

request for help and failure and refusal of the [petitioners] to extend the needed
help, support and assistance in locating the whereabouts of Engr. Tagitis who had
been declared missing since October 30, 2007 which is almost two (2) months
now, clearly indicates that the [petitioners] are actually in physical possession and
custody of [respondents] husband, Engr. Tagitis;

xxxx

25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [the respondent] has no other plain, speedy
and adequate remedy to protect and get the release of subject Engr. Morced
 Tagitis from the illegal clutches of the [petitioners], their intelligence operatives
and the like which are in total violation of the subjects human and constitutional
rights, except the issuance of a WRIT OF AMPARO. [Emphasis supplied]

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

In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged
abduction. They argued that the allegations of the petition were incomplete and did
not constitute a cause of action against them; were baseless, or at best speculative;
and were merely based on hearsay evidence. [12]

The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return,
stated that: he did not have any personal knowledge of, or any participation in, the
alleged disappearance; that he had been designated by President Gloria Macapagal
Arroyo as the head of a special body called TASK FORCE USIG, to address
concerns about extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local police, held case
conferences, rendered legal advice in connection to these cases; and gave the
following summary:[13]

xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional
Office ARMM submitted a report on the alleged disappearance of one Engr.
Morced Tagitis. According to the said report, the victim checked-in at ASY
Pension House on October 30, 2007 at about 6:00 in the morning and then roamed
around Jolo, Sulu with an unidentified companion. It was only after a few days
when the said victim did not return that the matter was reported to Jolo
MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to
trace and locate the whereabouts of the said missing person, but to no avail. The
said PPO is still conducting investigation that will lead to the immediate findings
of the whereabouts of the person.

b) Likewise, the Regional Chief, 9RCIDU submitted a Progress

Report to the Director, CIDG. The said report stated among others that: subject
person attended an Education Development Seminar set on October 28, 2007
conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof.
Matli. On October 30, 2007, at around 5:00 oclock in the morning, Engr. Tagitis
reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then
 billeted at ASY Pension House.At about 6:15 oclock in the morning of the same
date, he instructed his student to purchase a fast craft ticket bound for Zamboanga
City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00
oclock in the morning, Engr. Tagitis left the premises of ASY Pension House as
stated by the cashier of the said pension house. Later in the afternoon, the student
instructed to purchase the ticket arrived at the pension house and waited for Engr.
Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now
conducting a continuous case build up and information gathering to locate the
whereabouts of Engr. Tagitis.

c) That the Director, CIDG directed the conduct of the search in all
divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or
illegally detained by covert CIDG-PNP Intelligence Operatives since October 30,
2007, but after diligent and thorough search, records show that no such person is
being detained in CIDG or any of its department or divisions.

5. On this particular case, the Philippine National Police exhausted all possible
efforts, steps and actions available under the circumstances and continuously
search and investigate [sic] the instant case. This immense mandate, however,
necessitates the indispensable role of the citizenry, as the PNP cannot stand alone
without the cooperation of the victims and witnesses to identify the perpetrators to
bring them before the bar of justice and secure their conviction in court.

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the
Writ of Amparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable
Special Fourth Division of the Court of Appeals, I immediately directed the
Investigation Division of this Group [CIDG] to conduct urgent investigation on
the alleged enforced disappearance of Engineer Morced Tagitis.

That based on record, Engr. Morced N. Tagitis attended an Education

Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at
around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his
student identified as Arsimin Kunnong of the Islamic Development Bank who
was also one of the participants of the said seminar. He checked in at ASY
pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with
[sic] unidentified companion. At around six oclock in the morning of even date,
Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga
City. In the afternoon of the same date, Kunnong arrived at the pension house
carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be
found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who
reported the incident to the police. The CIDG is not involved in the disappearance
 of Engr. Morced Tagitis to make out a case of an enforced disappearance which
presupposes a direct or indirect involvement of the government.

That herein [petitioner] searched all divisions and departments for a person named
Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by
covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a
diligent and thorough research records show that no such person is being detained
in CIDG or any of its department or divisions.

That nevertheless, in order to determine the circumstances surrounding Engr.

Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons responsible
therefore.

Likewise attached to the Return of the Writ was PNP-PACER [15] Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:[16]

xxxx

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

That right after I learned of the receipt of the WRIT OF AMPARO, I directed the
Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active
measures to investigate, locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related to the disappearance
of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or
persons responsible, to identify witnesses and obtain statements from them
concerning the disappearance and to determine the cause, manner, location and
time of disappearance as well as any pattern or practice that may have brought
about the disappearance.
 That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the
disappearance of ENGR. MORCED.

That in compliance with my directive, the chief of PACER-MOR sent through fax
his written report.

That the investigation and measures being undertaken to locate/search the subject
in coordination with Police Regional Office, Autonomous Region of Muslim
Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP
and PNP units/agencies in the area are ongoing with the instruction not to leave
any stone unturned so to speak in the investigation until the perpetrators in the
instant case are brought to the bar of justice.

That I have exercised EXTRAORDINARY DILIGENCE in dealing with the

WRIT OF AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken upon
receipt of the report on Tagitis disappearance, viz:[17]
xxxx

3) For the record:

1. I am the Regional Director of Police Regional Office ARMM now

and during the time of the incident;

xxxx

4. It is my duty to look into and take appropriate measures on any cases of

reported enforced disappearances and when they are being alluded to my office;

5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office

reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee
of Islamic Development Bank, appeared before the Office of the Chief of Police,
Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis,
scholarship coordinator of Islamic Development Bank, Manila;

6. There was no report that Engr. Tagibis was last seen in the company of or taken
by any member of the Philippine National Police but rather he just disappeared
from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu,
on October 30, 2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket at
the Office of Weezam Express, however, when the student returned back to ASY
Pension House, he no longer found Engr. Tagitis there and when he immediately
inquired at the information counter regarding his whereabouts [sic], the person in
charge in the counter informed him that Engr. Tagitis had left the premises on
October 30, 2007 around 1 oclock p.m. and never returned back to his room;

8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and
text messages to conduct investigation [sic] to determine the whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the disappearance of Engr.
Tagitis, to identify witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his disappearance, to
identify and apprehend the person or persons involved in the disappearance so that
they shall be brought before a competent court;

9. Thereafter, through my Chief of the Regional Investigation and Detection

Management Division, I have caused the following directives:

a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007

directing PD Sulu PPO to conduct joint investigation with CIDG and
CIDU ARMM on the matter;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007

directing PD Sulu PPO to expedite compliance to my previous directive;

c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO

reiterating our series of directives for investigation and directing him to
undertake exhaustive coordination efforts with the owner of ASY Pension
House and student scholars of IDB in order to secure corroborative
statements regarding the disappearance and whereabouts of said
personality;

d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO

directing him to maximize efforts to establish clues on the whereabouts of
Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
Arsimin Kunnong and/or whenever necessary, for them to voluntarily
submit for polygraph examination with the NBI so as to expunge all
clouds of doubt that they may somehow have knowledge or idea to his
disappearance;

e) Memorandum dated December 27, 2007 addressed to the Regional Chief,

Criminal Investigation and Detection Group, Police Regional Office 9,
Zamboanga City, requesting assistance to investigate the cause and
 unknown disappearance of Engr. Tagitis considering that it is within their
area of operational jurisdiction;

f) Memorandum from Chief, Intelligence Division, PRO ARMM dated

December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;

10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his disappearance and submitted the
following:

a) Progress Report dated November 6, 2007 through Radio Message Cite No.
SPNP3-1106-10-2007;

b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they
are still monitoring the whereabouts of Engr. Tagitis;

c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo
Police Station, Sulu PPO;

11. This incident was properly reported to the PNP Higher Headquarters as shown
in the following:

a) Memorandum dated November 6, 2007 addressed to the Chief, PNP

informing him of the facts of the disappearance and the action being taken by
our office;

b) Memorandum dated November 6, 2007 addressed to the Director, Directorate

for Investigation and Detection Management, NHQ PNP;

c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be

determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.

Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao
as the officer in command of the area of disappearance to form TASK FORCE
TAGITIS.[18]

Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt.
Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set three
hearings to monitor whether TASK FORCE TAGITIS was exerting extraordinary
efforts in handling the disappearance of Tagitis. [20] As planned, (1) the first hearing
would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be
to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing
would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of
Zamboanga City and other police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA
an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo
Police Station, stating a possible motive for Tagitis disappearance. [22] The
intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic
Studies at the University of the Philippines and an Honorary Student Counselor of
the IDB Scholarship Program in the Philippines, who told the Provincial Governor
of Sulu that:[23]

[Based] on reliable information from the Office of Muslim Affairs in Manila,

Tagitis has reportedly taken and carried away more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by the
Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended
for the IDB Scholarship Fund.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to
be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention cells.
[24]
PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS
investigate the disappearance of Tagitis, persistently denied any knowledge or
complicity in any abduction.[25] He further testified that prior to the hearing, he had
already mobilized and given specific instructions to their supporting units to
perform their respective tasks; that they even talked to, but failed to get any lead
from the respondent in Jolo.[26] In his submitted investigation report dated January
16, 2008, PS Supt. Ajirim concluded:[27]
9. Gleaned from the undersigned inspection and observation at the Headquarters 9
RCIDU and the documents at hand, it is my own initial conclusion that the
9RCIDU and other PNP units in the area had no participation neither [sic]
something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last
October 30, 2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was reportedly deposited
in the personal account of Engr. Tagitis by the IDB central office in Jeddah,
Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or
 sour grape among students who are applying for the scholar [sic] and were denied
which was allegedly conducted/screened by the subject being the coordinator of
said program.

20. It is also premature to conclude but it does or it may and [sic] presumed that the
motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities
from the institution where he belong as well as to the Islamic student scholars
should the statement of Prof. Matli be true or there might be a professional
jealousy among them.

xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in the
area particularly the CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and investigation for the
early resolution of this instant case. But rest assured, our office, in coordination
with other law-enforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.

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

TAGITIS did not appear to be exerting extraordinary efforts in resolving Tagitis
disappearance on the following grounds:[28]

(1) This Court FOUND that it was only as late as January 28, 2008,
after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had
requested for clear photographs when it should have been standard operating
procedure in kidnappings or disappearances that the first agenda was for the
police to secure clear pictures of the missing person, Engr. Morced Tagitis, for
dissemination to all parts of the country and to neighboring countries. It had been
three (3) months since GEN. JOEL GOLTIAO admitted having been informed on
November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged
bad elements of the CIDG. It had been more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It had been three (3) weeks when
battle formation was ordered through Task Force Tagitis, on January 17, 2008. It
was only on January 28, 2008 when the Task Force Tagitis requested for clear and
recent photographs of the missing person, Engr. Morced Tagitis, despite the Task
Force Tagitis claim that they already had an all points bulletin, since November 5,
2007, on the missing person, Engr. Morced Tagitis. How could the police look for
someone who disappeared if no clear photograph had been disseminated?

(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM

informed this Court that P/Supt KASIM was designated as Col. Ahirom Ajirims
replacement in the latters official designated post. Yet, P/Supt KASIMs subpoena
was returned to this Court unserved. Since this Court was made to understand that
it was P/Supt KASIM who was the petitioners unofficial source of the military
 intelligence information that Engr. Morced Tagitis was abducted by bad elements
of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM
and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the
appearance of Col. KASIM in response to this courts subpoena and COL. KASIM
could have confirmed the military intelligence information that bad elements of
the CIDG had abducted Engr. Morced Tagitis.

Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her to
specify her allegations, particularly paragraph 15 of the petition.[29] This friend also
told her that her husband [was] in good hands. [30] The respondent also testified that
she sought the assistance of her former boss in Davao City, Land Bank Bajada
Branch Manager Rudy Salvador, who told her that PNP CIDG is holding [her
husband], Engineer Morced Tagitis.[31] The respondent recounted that she went to
Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col.
Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a
highly confidential report that contained the alleged activities of Engineer Tagitis
and informed her that her husband was abducted because he is under custodial
investigation for being a liaison for J.I. or Jemaah Islamiah.[32]

On January 17, 2008, the respondent on cross-examination testified that she is

Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.[33] She last communicated with her husband on
October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on
his way to Jolo, Sulu, from Zamboanga City.[34]

The respondent narrated that she learned of her husbands disappearance on

October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her
that she had not heard from her father since the time they arranged to meet in
Manila on October 31, 2007.[35] The respondent explained that it took her a few
days (or on November 5, 2007) to personally ask Kunnong to report her husbands
disappearance to the Jolo Police Station, since she had the impression that her
husband could not communicate with her because his cellular phones battery did
not have enough power, and that he would call her when he had fully-charged his
cellular phones battery.[36]
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr
(Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.
[37]
She also testified that she was with three other people, namely, Mrs. Marydel
Martin Talbin and her two friends from Mati City, Davao Oriental, when Col.
Kasim read to them the contents of the highly confidential report at Camp
Katitipan, Davao City. The respondent further narrated that the report indicated
that her husband met with people belonging to a terrorist group and that he was
under custodial investigation. She then told Col. Kasim that her husband was a
diabetic taking maintenance medication, and asked that the Colonel relay to the
persons holding him the need to give him his medication.[38]

On February 11, 2008, TASK FORCE TAGITIS submitted two narrative

reports,[39] signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs.
Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning; we
arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched by the
two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao
Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed
me and got information about the personal background of Engr. Morced N.
Tagitis.After he gathered all information, he revealed to us the contents of text
messages they got from the cellular phone of the subject Engr. Tagitis. One of the
very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis
was that she was not allowed to answer any telephone calls in his condominium
unit.

While we were there he did not tell us any information of the whereabouts of
Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to
the city.His two staffs accompanied us to the mall to purchase our plane ticket
going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning,
Col. Ancanan and I were discussing some points through phone calls. He assured
me that my husband is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet
I did not believe his given statements of the whereabouts of my husband, because
I contacted some of my friends who have access to the groups of MILF, MNLF
and ASG. I called up Col. Ancanan several times begging to tell me the exact
location of my husband and who held him but he refused.

While I was in Jolo, Sulu on November 30, 2007, I called him up again because
the PNP, Jolo did not give me any information of the whereabouts of my
 husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan ang
kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of dropping
by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason
that the Chief of Police of Jolo told me not to contact any AFP officials and he
promised me that he can solve the case of my husband (Engr. Tagitis) within nine
days.

I appreciate the effort of Col. Ancanan on trying to solve the case of my husband
Engr. Morced Tagitis, yet failed to do so.

The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch,
Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I
asked him a favor to contact his connections in the military in Jolo, Sulu where
the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up
Camp Katitipan located in Davao City looking for high-ranking official who can
help me gather reliable information behind the abduction of subject Engineer
Tagitis.

On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador
introduced me to Col. Kasim and we had a short conversation. And he assured me
that hell do the best he can to help me find my husband.

After a few weeks, Mr. Salvador called me up informing me up informing me that

I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent,
confidential information to reveal.

On November 24, 2007, we went back to Camp Katitipan with my three

friends. That was the time that Col. Kasim read to us the confidential report that
Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of
which he mentioned in the report was OMAR PATIK and a certain SANTOS - a
Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember. It
was written in a long bond paper with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.

He asked a favor to me that Please dont quote my Name! Because this is a raw
report. He assured me that my husband is alive and he is in the custody of the
military for custodial investigation. I told him to please take care of my husband
because he has aliments and he recently took insulin for he is a diabetic patient.
 In my petition for writ of amparo, I emphasized the information that I got from
Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs.
Talbin testified that she was with the respondent when she went to Zamboanga to
see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.[42]

In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages
from Tagitis cellular phone, which showed that Tagitis and his daughter would
meet in Manila on October 30, 2007.[43]

She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that
Tagitis was in good hands, although he was not certain whether he was with the
PNP or with the Armed Forces of the Philippines (AFP). She further recounted that
based on the report Col. Kasim read in their presence, Tagitis was under custodial
investigation because he was being charged with terrorism; Tagitis in fact had been
under surveillance since January 2007 up to the time he was abducted when he was
seen talking to Omar Patik and a certain Santos of Bulacan, a Balik Islam charged
with terrorism. Col. Kasim also told them that he could not give a copy of the
report because it was a raw report.[45] She also related that the Col. Kasim did not
tell them exactly where Tagitis was being kept, although he mentioned Talipapao,
Sulu.Prof., lalabas din yan.[50] Prof. Matli also emphasized that despite what his January 4,
2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any accusation,
that Tagitis took away money entrusted to him. [52] Prof. Matli confirmed, however,
that that he had received an e-mail report[53] from Nuraya Lackian of the Office of
Muslim Affairs in Manila that the IDB was seeking assistance of the office in
locating the funds of IDB scholars deposited in Tagitis personal account.[54]

On cross-examination by the respondents counsel, Prof. Matli testified that his

January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to
sign it.[55] Prof Matli clarified that although he read the affidavit before signing it,
he was not so much aware of [its] contents.[56]

On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had stated
that Tagitis was in the custody of either the military or the PNP.[57] Col. Kasim
categorically denied the statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for
the injured terrorists; (2) that Tagitis was under the custody of the military, since
he merely said to the respondent that your husband is in good hands and is
probably taken cared of by his armed abductors; and (3) that Tagitis was under
custodial investigation by the military, the PNP or the CIDG Zamboanga City.
[58]
Col. Kasim emphasized that the informal letter he received from his informant
in Sulu did not indicate that Tagitis was in the custody of the CIDG. [59] He also
stressed that the information he provided to the respondent was merely a raw
report sourced from barangay intelligence that still needed confirmation and
follow-up as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a civilian asset, through a
letter which he considered as unofficial.[61] Col. Kasim stressed that the letter was
only meant for his consumption and not for reading by others. [62] He testified
further that he destroyed the letter right after he read it to the respondent and her
companions because it was not important to him and also because the information
it contained had no importance in relation with the abduction of Tagitis. [63] He
explained that he did not keep the letter because it did not contain any information
regarding the whereabouts of Tagitis and the person(s) responsible for his
abduction.[64]

In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondents allegation that Tagitis was in the custody of CIDG-
Zamboanga City.[65] Col. Pante clarified that the CIDG was the investigative arm of
the PNP, and that the CIDG investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU personnel
were involved in the disappearance of Tagitis was baseless, since they did not
conduct any operation in Jolo, Sulu before or after Tagitis reported disappearance.
[67]
Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had no
capability to conduct any operation, since they were only assigned to investigate
matters and to monitor the terrorism situation. [68] He denied that his office
conducted any surveillance on Tagitis prior to the latters disappearance. [69] Col.
Pante further testified that his investigation of Tagitis disappearance was
unsuccessful; the investigation was still facing a blank wall on the whereabouts of
Tagitis.[70]
 THE CA RULING
On March 7, 2008, the CA issued its decision [71] confirming that the disappearance
of Tagitis was an enforced disappearance under the United Nations (UN)
Declaration on the Protection of All Persons from Enforced Disappearances. [72] The
CA ruled that when military intelligence pinpointed the investigative arm of the
PNP (CIDG) to be involved in the abduction, the missing-person case qualified as
an enforced disappearance. The conclusion that the CIDG was involved was based
on the respondents testimony, corroborated by her companion, Mrs. Talbin. The
CA noted that the information that the CIDG, as the police intelligence arm, was
involved in Tagitis abduction came from no less than the military an independent
agency of government. The CA thus greatly relied on the raw report from Col.
Kasims asset, pointing to the CIDGs involvement in Tagitis abduction. The CA
held that raw reports from an asset carried great weight in the intelligence world. It
also labeled as suspect Col. Kasims subsequent and belated retraction of his
statement that the military, the police, or the CIDG was involved in the abduction
of Tagitis.

The CA characterized as too farfetched and unbelievable and a bedlam of

speculation police theories painting the disappearance as intentional on the part of
Tagitis. He had no previous brushes with the law or any record of overstepping the
bounds of any trust regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she did not get his
or her stipend. The CA also found no basis for the police theory that Tagitis was
trying to escape from the clutches of his second wife, on the basis of the
respondents testimony that Tagitis was a Muslim who could have many wives
under the Muslim faith, and that there was no issue at all when the latter divorced
his first wife in order to marry the second. Finally, the CA also ruled out
kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the
cause for Tagitis disappearance, since the respondent, the police and the military
noted that there was no acknowledgement of Tagitis abduction or demand for
payment of ransom the usual modus operandi of these terrorist groups.

Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP
Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of
Tagitis, with the obligation to provide monthly reports of their actions to the
CA. At the same time, the CA dismissed the petition against the then respondents
from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the
finding that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the
CA denied the motion in its Resolution of April 9, 2008.[73]

THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparopetition filed
before the CA; the sufficiency of the legal remedies the respondent took before
petitioning for the writ; the finding that the rights to life, liberty and security of
Tagitis had been violated; the sufficiency of evidence supporting the conclusion
that Tagitis was abducted; the conclusion that the CIDG Zamboanga was
responsible for the abduction; and, generally, the ruling that the respondent
discharged the burden of proving the allegations of the petition by substantial
evidence.[74]

THE COURTS RULING

We do not find the petition meritorious.

Sufficiency in Form and Substance

In questioning the sufficiency in form and substance of the

respondents Amparo petition, the petitioners contend that the petition violated
Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege
that the respondent failed to:

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

Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondents source
of information;
3) allege that the abduction was committed at the petitioners instructions or
with their consent;
 4) implead the members of CIDG regional office in Zamboanga alleged to
have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis disappearance;
and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.

A petition for the Writ of Amparo shall be signed and verified and shall
allege, among others (in terms of the portions the petitioners cite):[75]

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

(d) The investigation conducted, if any, specifying the names,

personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of the
investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine

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

The framers of the Amparo Rule never intended Section 5(c) to be complete
in every detail in stating the threatened or actual violation of a victims rights. As in
any other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details. [76] In
an 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 counter-
insurgency campaigns. As this form of political brutality became routine elsewhere
in the continent, the Latin American media standardized the term disappearance to
describe the phenomenon. The victims of enforced disappearances were called
the desaparecidos,[86] which literally means the disappeared ones.[87] In general,
there are three different kinds of disappearance cases:

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

of the arresting agents and are never found again;

2) those of prisoners who are usually arrested without an appropriate warrant

and held in complete isolation for weeks or months while their families are
unable to discover their whereabouts and the military authorities deny having
them in custody until they eventually reappear in one detention center or
another; and

3) those of victims of salvaging who have disappeared until their lifeless bodies
are later discovered.[88]
 In the Philippines, enforced disappearances generally fall within the first two
categories,[89] and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C. Aquinos term, 820
people were reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were
found dead. The number of enforced disappearances dropped during former
President Fidel V. Ramos term when only 87 cases were reported, while the three-
year term of former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization, reports that as of
March 31, 2008, the records show that there were a total of 193 victims of enforced
disappearance under incumbent President Gloria M. Arroyos administration. The
Commission on Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined
status.[90] Currently, the United Nations Working Group on Enforced or Involuntary
Disappearance[91] reports 619 outstanding cases of enforced or involuntary
disappearances covering the period December 1, 2007 to November 30, 2008.[92]

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover extralegal
killings and enforced disappearances or threats thereof.[93] We note that although
the writ specifically covers enforced disappearances, this concept is neither defined
nor penalized in this jurisdiction. The records of the Supreme Court Committee on
the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule
initially considered providing an elemental definition of the concept of enforced
disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
 disappearances.From that definition, then we can proceed to formulate the rules,
definite rules concerning the same.

CHIEF JUSTICE PUNO: As things stand, there is no law penalizing

extrajudicial killings and enforced disappearances so initially also we have to
[come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings
and disappearances will define the jurisdiction of the courts. So well have to
agree among ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state actors. That is an element
incorporated in their concept of extrajudicial killings and enforced
disappearances. In other jurisdictions, the concept includes acts and omissions not
only of state actors but also of non state actors. Well, more specifically in the case
of the Philippines for instance, should these rules include the killings, the
disappearances which may be authored by let us say, the NPAs or the leftist
organizations and others. So, again we need to define the nature of the
extrajudicial killings and enforced disappearances that will be covered by these
rules. [Emphasis supplied] [95]

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

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

this jurisdiction are not crimes penalized separately from the component criminal
acts undertaken to carry out these killings and enforced disappearances and are
now penalized under the Revised Penal Code and special laws. [99]The simple
reason is that the Legislature has not spoken on the matter; the determination of
what acts are criminal and what the corresponding penalty these criminal acts
should carry are matters of substantive law that only the Legislature has the power
to enact under the countrys constitutional scheme and power structure.
 Even without the benefit of directly applicable substantive laws on extra-
judicial killings and enforced disappearances, however, the Supreme Court is not
powerless to act under its own constitutional mandate to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts, [100] since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and
security. Although the Courts power is strictly procedural and as such does not
diminish, increase or modify substantive rights, the legal protection that the Court
can provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel the
public authorities to act on actual or threatened violations of constitutional rights.
To state the obvious, judicial intervention can make a difference even if only
procedurally in a situation when the very same investigating public authorities may
have had a hand in the threatened or actual violations of constitutional rights.

Lest this Court intervention be misunderstood, we clarify once again that we

do not rule on any issue of criminal culpability for the extrajudicial killing or
enforced disappearance. This is an issue that requires criminal action before our
criminal courts based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken place and who is
responsible or accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public authorities to
discharge in these situations, under the Rule on the Writ of Amparo, is
twofold.The first is to ensure that all efforts at disclosure and investigation are
undertaken under pain of indirect contempt from this Court when governmental
efforts are less than what the individual situations require. The second is to address
the disappearance, so that the life of the victim is preserved and his or her liberty
and security restored. In these senses, our orders and directives relative to the writ
are continuing efforts that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete determination of the fate
and the whereabouts of the victim, by the production of the disappeared person and
the restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.

Enforced Disappearance
Under International Law

From the International Law perspective, involuntary or enforced

disappearance is considered a flagrant violation of human rights. [101] It does not
only violate the right to life, liberty and security of the desaparecido; it affects their
families as well through the denial of their right to information regarding the
circumstances of the disappeared family member. Thus, enforced disappearances
have been said to be a double form of torture, with doubly paralyzing impact for
the victims, as they are kept ignorant of their own fates, while family members are
deprived of knowing the whereabouts of their detained loved ones and suffer as
well the serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner.[102]

The UN General Assembly first considered the issue of Disappeared Persons

in December 1978 under Resolution 33/173. The Resolution expressed the General
Assemblys deep concern arising from reports from various parts of the world
relating to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations.[103]

In 1992, in response to the reality that the insidious practice of enforced

disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).[104] This Declaration, for the first time, provided in
its third preambular clause a working description of enforced disappearance, as
follows:

Deeply concerned that in many countries, often in a persistent manner,

enforced disappearances occur, in the sense that persons are arrested, detained
or abducted against their will or otherwise deprived of their liberty by
officials of different branches or levels of Government, or by organized
groups or private individuals acting on behalf of, or with the support, direct
or indirect, consent or acquiescence of the Government, followed by a refusal
to disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside
the protection of the law. [Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).[105] The Convention was opened for
signature in Paris, France on February 6, 2007. [106] Article 2 of the Convention
defined enforced disappearance as follows:

For the purposes of this Convention, enforced disappearance is

considered to be the arrest, detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is
a right not to be subject to enforced disappearance [107] and that this right is non-
derogable.[108] It provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political instability, or any
other public emergency. It obliges State Parties to codify enforced disappearance as
an offense punishable with appropriate penalties under their criminal law.[109] It also
recognizes the right of relatives of the disappeared persons and of the society as a
whole to know the truth on the fate and whereabouts of the disappeared and on the
progress and results of the investigation.[110] Lastly, it classifies enforced
disappearance as a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established.[111]
Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance
as a crime. The absence of a specific penal law, however, is not a stumbling block
for action from this Court, as heretofore mentioned; underlying every enforced
disappearance is a violation of the constitutional rights to life, liberty and security
that the Supreme Court is mandated by the Constitution to protect through its rule-
making powers.

Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a member
of the UN, bound by its Charter and by the various conventions we signed and
ratified, particularly the conventions touching on humans rights.Under the UN
Charter, the Philippines pledged to promote universal respect for, and observance
of, human rights and fundamental freedoms for all without distinctions as to race,
sex, language or religion.[112] Although no universal agreement has been reached on
the precise extent of the human rights and fundamental freedoms guaranteed to all
by the Charter,[113] it was the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states:[114]

Any act of enforced disappearance is an offence to dignity. It is condemned as

a denial of the purposes of the Charter of the United Nations and as a grave
and flagrant violation of human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights and reaffirmed and
developed in international instruments in this field. [Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter made
in a UN Declaration, the ban on enforced disappearance cannot but have its effects
on the country, given our own adherence to generally accepted principles of
international law as part of the law of the land.[115]

In the recent case of Pharmaceutical and Health Care Association of the

Philippines v. Duque III,[116] we held that:

Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. [Emphasis
supplied]

We characterized generally accepted principles of international law as norms of

general or customary international law that are binding on all states. We held
further:[117]

[G]enerally accepted principles of international law, by virtue of the

incorporation clause of the Constitution, form part of the laws of the land even if
they do not derive from treaty obligations. The classical formulation in
international law sees those customary rules accepted as binding result from
the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known
as the opinion juris sive necessitates(opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered obligatory
by the existence of a rule of law requiring it. [Emphasis in the original]

The most widely accepted statement of sources of international law today is

Article 38(1) of the Statute of the International Court of Justice, which provides
that the Court shall apply international custom, as evidence of a general practice
accepted as law.[118] The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same form, the practice
of international organs, and resolutions relating to legal questions in the UN
General Assembly.[119] Sometimes referred to as evidence of international law,
[120]
these sources identify the substance and content of the obligations of States and
are indicative of the State practice and opinio juris requirements of international
law.[121] We note the following in these respects:

First, barely two years from the adoption of the Declaration, the
Organization of American States (OAS) General Assembly adopted the Inter-
American Convention on Enforced Disappearance of Persons in June 1994.
[122]
State parties undertook under this Convention not to practice, permit, or
tolerate the forced disappearance of persons, even in states of emergency or
suspension of individual guarantees.[123] One of the key provisions includes the
States obligation to enact the crime of forced disappearance in their respective
national criminal laws and to establish jurisdiction over such cases when the crime
was committed within their jurisdiction, when the victim is a national of that State,
and when the alleged criminal is within its territory and it does not proceed to
extradite him, which can be interpreted as establishing universal jurisdiction
among the parties to the Inter-American Convention. [124] At present, Colombia,
Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined activities
involving enforced disappearance to be criminal.[125]

Second, in Europe, the European Convention on Human Rights has no

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

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

disappearance as part of customary international law is recognized in the most
recent edition of Restatement of the Law: The Third, [128] which provides that [a]
State violates international law if, as a matter of State policy, it practices,
encourages, or condones (3) the murder or causing the disappearance of
individuals.[129] We significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture the United States
Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-
Irala[130] that the prohibition on torture had attained the status of customary
international law. The court further elaborated on the significance of UN
declarations, as follows:

These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that they do not know what human
rights they promised in the Charter to promote. Moreover, a U.N. Declaration is,
according to one authoritative definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great and lasting importance are
being enunciated. Accordingly, it has been observed that the Universal
Declaration of Human Rights "no longer fits into the dichotomy of binding treaty
against non-binding pronouncement,' but is rather an authoritative statement of the
international community." Thus, a Declaration creates an expectation of
adherence, and "insofar as the expectation is gradually justified by State practice,
a declaration may by custom become recognized as laying down rules binding
upon the States." Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary international law.
[Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of
the International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment) and
9 (right to liberty and security of the person) of the ICCPR, and the act may also
amount to a crime against humanity.[131]

Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the

International Criminal Court (ICC) also covers enforced disappearances insofar as
they are defined as crimes against humanity,[132] i.e., crimes committed as part of a
widespread or systematic attack against any civilian population, with knowledge of
the attack. While more than 100 countries have ratified the Rome Statute, [133] the
Philippines is still merely a signatory and has not yet ratified it. We note that
Article 7(1) of the Rome Statute has been incorporated in the statutes of other
international and hybrid tribunals, including Sierra Leone Special Court, the
Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary Chambers
in the Courts of Cambodia.[134] In addition, the implementing legislation of State
Parties to the Rome Statute of the ICC has given rise to a number of national
criminal provisions also covering enforced disappearance.[135]

While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of the Rome
Statute) and has not formally declared enforced disappearance as a specific crime,
the above recital shows that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it is now
a generally accepted principle of international law, which we should consider a
part of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of
Human Rights, the ICCPR and the International Convention on Economic, Social
and Cultural Rights (ICESR) may be infringed in the course of a disappearance:[136]

1) the right to recognition as a person before the law;

2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
 4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and
compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

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

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

In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the obligation
of the State to investigate ICCPR violations promptly, thoroughly, and
effectively, viz:[137]

15. Article 2, paragraph 3, requires that in addition to effective protection

of Covenant rights, States Parties must ensure that individuals also
have accessible and effective remedies to vindicate those rights The
Committee attaches importance to States Parties' establishing appropriate
judicial and administrative mechanisms for addressing claims of rights
violations under domestic law Administrative mechanisms are
particularly required to give effect to the general obligation to
 investigate allegations of violations promptly, thoroughly and
effectively through independent and impartial bodies. A failure by a
State Party to investigate allegations of violations could in and of itself
give rise to a separate breach of the Covenant. Cessation of an ongoing
violation is an essential element of the right to an effective remedy.
[Emphasis supplied]

The UN Human Rights Committee further stated in the same General

Comment No. 31 that failure to investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:[138]

18. Where the investigations referred to in paragraph 15 reveal violations

of certain Covenant rights, States Parties must ensure that those
responsible are brought to justice. As with failure to investigate,
failure to bring to justice perpetrators of such violations could in
and of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as
criminal under either domestic or international law, such as torture
and similar cruel, inhuman and degrading treatment (article 7), summary
and arbitrary killing (article 6) and enforced disappearance (articles 7
and 9 and, frequently, 6).Indeed, the problem of impunity for these
violations, a matter of sustained concern by the Committee, may well be
an important contributing element in the recurrence of the violations.
When committed as part of a widespread or systematic attack on a
civilian population, these violations of the Covenant are crimes against
humanity (see Rome Statute of the International Criminal Court, article
7). [Emphasis supplied]

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

right to security of persons is a guarantee of the protection of ones right by the
government, held that:

The right to security of person in this third sense is a corollary of the

policy that the State guarantees full respect for human rights under
Article II, Section 11 of the 1987 Constitution. As the government is the
chief guarantor of order and security, the Constitutional guarantee of
the rights to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective
 investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez
Rodriguez Case, viz:

(The duty to investigate) must be undertaken in

a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have
an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for the
truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the right
to security not only as a prohibition on the State against arbitrary deprivation of
liberty, but also as the imposition of a positive duty to afford protection to the right
to liberty. The Court notably quoted the following ECHR ruling:

[A]ny deprivation of liberty must not only have been effected in

conformity with the substantive and procedural rules of national law but
must equally be in keeping with the very purpose of Article 5, namely to
protect the individual from arbitrariness... Having assumed control over
that individual, it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into
an arguable claim that a person has been taken into custody and has
not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ
of Amparo, which the Court made effective on October 24, 2007. Although
the Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of enforced
disappearance, the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule, the
Court can provide remedies and protect the constitutional rights to life,
liberty and security that underlie every enforced disappearance.

Evidentiary Difficulties Posed

by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged the
burden of proving the allegations of the petition for the Writ of Amparo by the
degree of proof required by the Amparo Rule, we shall discuss briefly the unique
evidentiary difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of the Amparo Rule
shall encounter.

These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past experiences in
other jurisdictions show that the evidentiary difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of the direct

perpetrators.[141] Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus:

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

acting under some form of governmental authority. In many countries the
units that plan, implement and execute the program are generally
specialized, highly-secret bodies within the armed or security forces.
They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent
any interference by the "legal" police forces. These authorities take their
victims to secret detention centers where they subject them to
interrogation and torture without fear of judicial or other controls. [142]
 In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the disappearance
out of fear for their own lives. [143] We have had occasion to note this difficulty
in Secretary of Defense v. Manalo[144] when we acknowledged that where powerful
military officers are implicated, the hesitation of witnesses to surface and testify
against them comes as no surprise.

Second, deliberate concealment of pertinent evidence of the

disappearance is a distinct possibility; the central piece of evidence in an enforced
disappearance i.e., the corpus delicti or the victims body is usually concealed to
effectively thwart the start of any investigation or the progress of one that may
have begun.[145] The problem for the victims family is the States virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human Rights (IACHR)
observed in the landmark case of Velasquez Rodriguez[146] that inherent to the
practice of enforced disappearance is the deliberate use of the States power to
destroy the pertinent evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.[147]

Third is the element of denial; in many cases, the State authorities

deliberately deny that the enforced disappearance ever occurred.[148] Deniability is
central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards ensuring
the victims human rights.[149] Experience shows that government officials typically
respond to requests for information about desaparecidos by saying that they are not
aware of any disappearance, that the missing people may have fled the country, or
that their names have merely been invented.[150]

These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.

Evidence and Burden of Proof in

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

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

evidence as the required level of proof (in contrast to the usual preponderance of
evidence or proof beyond reasonable doubt in court proceedings) reveal the clear
intent of the framers of the Amparo Rule to have the equivalent of an
administrative proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required the duty of public
officials and employees to observe extraordinary diligence point, too, to the
extraordinary measures expected in the protection of constitutional rights and in
the consequent handling and investigation of extra-judicial killings and enforced
disappearance cases.
 Thus, in these proceedings, the Amparo petitioner needs only to properly
comply with the substance and form requirements of a Writ of Amparopetition, 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 information exists in the records relating to the personal
circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal

circumstances. While the Amparo petition recited that he was taken away by burly
men believed to be police intelligence operatives, no evidence whatsoever was
introduced to support this allegation. Thus, the available direct evidence is that
Tagitis was last seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo
and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were never
looked into and clarified by police investigation. It is the evidence, too, that colors
a simple missing person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into question how
the State reacted to the disappearance.

Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police arrived at
this conclusion. The respondents own inquiry in Jolo yielded the answer that he
was not missing but was with another woman somewhere. Again, no evidence
exists that this explanation was arrived at based on an investigation. As already
related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the inquiry from Col.
Kasim that yielded positive results. Col. Kasims story, however, confirmed only
the fact of his custodial investigation (and, impliedly, his arrest or abduction),
without identifying his abductor/s or the party holding him in custody. The more
significant part of Col. Kasims story is that the abduction came after Tagitis was
seen talking with Omar Patik and a certain Santos of Bulacan, a Balik Islam
charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at
Talipapao, Sulu. None of the police agencies participating in the investigation ever
pursued these leads.Notably, TASK FORCE TAGITIS to which this information
was relayed did not appear to have lifted a finger to pursue these aspects of the
case.

More denials were manifested in the Returns on the writ to the CA made by
the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the
directives he sent to the ARMM Regional Director and the Regional Chief of the
CIDG on Tagitis, and these reports merely reiterated the open-ended initial report
of the disappearance. The CIDG directed a search in all of its divisions with
negative results. These, to the PNP Chief, constituted the exhaustion of all possible
efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported
negative results after searching all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and thorough
research, records show that no such person is being detained in the CIDG or any of
its department or divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and
PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no
better in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested when the
CA constituted TASK FORCE TAGITIS, with specific directives on what to
do. The negative results reflected in the Returns on the writ were again replicated
during the three hearings the CA scheduled. Aside from the previously mentioned
retraction that Prof. Matli made to correct his accusation that Tagitis took money
held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG
consistently denied any knowledge or complicity in any abduction and said that
there was no basis to conclude that the CIDG or any police unit had anything to do
with the disappearance of Tagitis; he likewise considered it premature to conclude
that Tagitis simply ran away with the money in his custody. As already noted
above, the TASK FORCE notably did not pursue any investigation about the
personal circumstances of Tagitis, his background in relation to the IDB and the
background and activities of this Bank itself, and the reported sighting of Tagistis
with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to
have ever been made to look into the alleged IDB funds that Tagitis held in trust, or
to tap any of the assets who are indispensable in investigations of this nature.
These omissions and negative results were aggravated by the CA findings that it
was only as late as January 28, 2008 or three months after the disappearance that
the police authorities requested for clear pictures of Tagitis. Col. Kasim could not
attend the trial because his subpoena was not served, despite the fact that he was
designated as Ajirims replacement in the latters last post. Thus, Col. Kasim was not
then questioned. No investigation even an internal one appeared to have been made
to inquire into the identity of Col. Kasims asset and what he indeed wrote.

We glean from all these pieces of evidence and developments a

consistency in the governments denial of any complicity in the disappearance
of Tagitis, disrupted only by the report made by Col. Kasim to the respondent
at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever
made the disclosure that Tagitis was under custodial investigation for complicity in
terrorism. Another distinctive trait that runs through these developments is the
governments dismissive approach to the disappearance, starting from the initial
response by the Jolo police to Kunnongs initial reports of the disappearance, to the
responses made to the respondent when she herself reported and inquired about her
husbands disappearance, and even at TASK FORCE TAGITIS itself.
 As the CA found through TASK FORCE TAGITIS, the investigation was at
best haphazard since the authorities were looking for a man whose picture they
initially did not even secure. The returns and reports made to the CA fared no
better, as the CIDG efforts themselves were confined to searching for custodial
records of Tagitis in their various departments and divisions. To point out the
obvious, if the abduction of Tagitis was a black operation because it was
unrecorded or officially unauthorized, no record of custody would ever appear in
the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG
detention places. In sum, none of the reports on record contains any
meaningful results or details on the depth and extent of the investigation
made. To be sure, reports of top police officials indicating the personnel and units
they directed to investigate can never constitute exhaustive and meaningful
investigation, or equal detailed investigative reports of the activities undertaken to
search for Tagitis. Indisputably, the police authorities from the very beginning
failed to come up to the extraordinary diligence that the Amparo Rule requires.

CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasims disclosure,

made in an unguarded moment, unequivocally point to some government
complicity in the disappearance. The consistent but unfounded denials and the
haphazard investigations cannot but point to this conclusion. For why would the
government and its officials engage in their chorus of concealment if the intent had
not been to deny what they already knew of the disappearance? Would not an in-
depth and thorough investigation that at least credibly determined the fate of
Tagitis be a feather in the governments cap under the circumstances of the
disappearance? From this perspective, the evidence and developments, particularly
the Kasim evidence, already establish a concrete case of enforced disappearance
that the Amparo Rule covers. From the prism of the UN Declaration, heretofore
cited and quoted,[173] the evidence at hand and the developments in this case
confirm the fact of the enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and haphazard
handling. The disappearance as well effectively placed Tagitis outside the
protection of the law a situation that will subsist unless this Court acts.

This kind of fact situation and the conclusion reached are not without
precedent in international enforced disappearance rulings. While the facts are not
exactly the same, the facts of this case run very close to those of Timurtas v.
Turkey,[174] a case decided by ECHR. The European tribunal in that case acted on
the basis of the photocopy of a post-operation report in finding that Abdulvahap
Timurtas (Abdulvahap) was abducted and later detained by agents (gendarmes) of
the government of Turkey. The victim's father in this case brought a claim against
Turkey for numerous violations of the European Convention, including the right to
life (Article 2) and the rights to liberty and security of a person (Article 5). The
applicant contended that on August 14, 1993, gendarmes apprehended his son,
Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi
region. The petition was filed in southeast Turkey nearly six and one half years
after the apprehension. According to the father, gendarmes first detained
Abdulvahap and then transferred him to another detainment facility. Although
there was no eyewitness evidence of the apprehension or subsequent
detainment, the applicant presented evidence corroborating his version of
events, including a photocopy of a post-operation report signed by the
commander of gendarme operations in Silopi, Turkey. The report included a
description of Abdulvahap's arrest and the result of a subsequent interrogation
during detention where he was accused of being a leader of the PKK in the Silopi
region. On this basis, Turkey was held responsible for Abdulvahaps enforced
disappearance.

Following the lead of this Turkish experience - adjusted to the

Philippine legal setting and the Amparo remedy this Court has established, as
applied to the unique facts and developments of this case we believe and so
hold that the government in general, through the PNP and the PNP-CIDG,
and in particular, the Chiefs of these organizations together with Col. Kasim,
should be held fully accountable for the enforced disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of Republic Act No.
6975, otherwise known as the PNP Law,[175] specifies the PNP as the governmental
office with the mandate to investigate and prevent crimes, effect the arrest of
criminal offenders, bring offenders to justice and assist in their prosecution. The
PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is
the investigative arm of the PNP and is mandated to investigate and prosecute all
cases involving violations of the Revised Penal Code, particularly those considered
as heinous crimes.[176] Under the PNP organizational structure, the PNP-CIDG is
tasked to investigate all major crimes involving violations of the Revised Penal
Code and operates against organized crime groups, unless the President assigns the
case exclusively to the National Bureau of Investigation (NBI).[177] No indication
exists in this case showing that the President ever directly intervened by assigning
the investigation of Tagitis disappearance exclusively to the NBI.

Given their mandates, the PNP and PNP-CIDG officials and members were
the ones who were remiss in their duties when the government completely failed to
exercise the extral'>To fully enforce the Amparo remedy, we refer this case back to
the CA for appropriate proceedings directed at the monitoring of the PNP and the
PNP-CIDG investigations and actions, and the validation of their results through
hearings the CA may deem appropriate to conduct. For purposes of these
investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of action
for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf of this Court, the
CA shall pass upon: the need for the PNP and the PNP-CIDG to make disclosures
of matters known to them as indicated in this Decision and as further CA hearings
may indicate; the petitioners submissions; the sufficiency of their investigative
efforts; and submit to this Court a quarterly report containing its actions and
recommendations, copy furnished the petitioners and the respondent, with the first
report due at the end of the first quarter counted from the finality of this
Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake
their investigation. The CA shall submit its full report for the consideration of this
Court at the end of the 4th quarter counted from the finality of this Decision.

WHEREFORE, premises considered, we DENY the petitioners petition for

review on certiorari for lack of merit, and AFFIRM the decision of the Court of
Appeals dated March 7, 2008 under the following terms:

a. Recognition that the disappearance of Engineer Morced N. Tagitis is

an enforced disappearance covered by the Rule on the Writ
of Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the
PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the
enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of
Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material
facts known to the government and to their offices regarding the
disappearance of Engineer Morced N. Tagitis, and for the conduct of
proper investigations using extraordinary diligence, with the
obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and
holding him accountable with the obligation to disclose information
known to him and to his assets in relation with the enforced
disappearance of Engineer Morced N. Tagitis;
 f. Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and
the PNP-CIDG shall initially present to the Court of Appeals a plan of
action for further investigation, periodically reporting their results to
the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly
report with its recommendations, copy furnished the incumbent PNP
and PNP-CIDG Chiefs as petitioners and the respondent, with the first
report due at the end of the first quarter counted from the finality of
this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake
their investigations; the Court of Appeals shall submit its full report
for the consideration of this Court at the end of the 4 th quarter counted
from the finality of this Decision;

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

The dismissal of the Amparo petition with respect to General Alexander

Yano, Commanding General, Philippine Army, and General Ruben Rafael, Chief,
Anti-Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
XVI.4

BRION, J.:

We review,[1] in light of the latest developments in this case,

the decision[2] dated July 17, 2008 of the Court of Appeals (CA) in
the consolidated petitions for Habeas Corpus,[3] Contempt[4] and
Writ of Amparo[5] filed by Edita T. Burgos (petitioner). The assailed
CA decision dismissed the petition for the issuance of the Writ
of Habeas Corpus; denied the petitioners motion to declare the
respondents in Contempt; and partially granted the privilege of
the Writ of Amparo.[6]

On June 22, 2010, we issued a Resolution[7] referring the

present case to the Commission on Human Rights (CHR), as the
Courts directly commissioned agency tasked with the continuation
of the investigation of Jonas Joseph T. Burgos abduction and the
gathering of evidence, with the obligation to report its factual
findings and recommendations to this Court. We found the
referral necessary as the investigation by the PNP-CIDG, by the
AFP Provost Marshal, and even by the CHR had been less than
complete; for one, there were very significant lapses in the
handling of the investigation. In particular, we highlighted the
PNP-CIDGs failure to identify the cartographic sketches of two
(one male and one female) of the five abductors of Jonas, based
on their interview of eyewitnesses to the abduction. [8] We held:

Considering the findings of the CA and our review of the records

of the present case, we conclude that the PNP and the AFP have so far
failed to conduct an exhaustive and meaningful investigation into the
disappearance of Jonas Burgos, and to exercise the extraordinary
diligence (in the performance of their duties) that the Rule on the Writ
of Amparo requires. Because of these investigative shortcomings, we
cannot rule on the case until a more meaningful investigation, using
extraordinary diligence, is undertaken.

From the records, we note that there are very significant

lapses in the handling of the investigation - among them the
PNP-CIDGs failure to identify the cartographic sketches of two (one
male and one female) of the five abductors of Jonas based on their
interview of eyewitnesses to the abduction. This lapse is based on the
information provided to the petitioner by no less than State Prosecutor
Emmanuel Velasco of the DOJ who identified the persons who were
possibly involved in the abduction, namely: T/Sgt. Jason Roxas
(Philippine Army), Cpl. Maria Joana Francisco (Philippine Air Force),
M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all
reportedly assigned with Military Intelligence Group 15 of Intelligence
Service of the AFP. No search and certification were ever made on
whether these persons were AFP personnel or in other branches of the
service, such as the Philippine Air Force. As testified to by the
petitioner, no significant follow through was also made by the PNP-
CIDG in ascertaining the identities of the cartographic sketches of two
of the abductors despite the evidentiary leads provided by State
Prosecutor Velasco of the DOJ. Notably, the PNP-CIDG, as the lead
investigating agency in the present case, did not appear to have lifted
a finger to pursue these aspects of the case.

We note, too, that no independent investigation appeared to

have been made by the PNP-CIDG to inquire into the veracity of Lipios
and Manuels claims that Jonas was abducted by a certain @KA DANTE
and a certain @KA ENSO of the CPP/NPA guerilla unit RYG. The
records do not indicate whether the PNP-CIDG conducted a follow-up
investigation to determine the identities and whereabouts of @KA
Dante and @KA ENSO. These omissions were aggravated by the CA
finding that the PNP has yet to refer any case for preliminary
investigation to the DOJ despite its representation before the CA that
it had forwarded all pertinent and relevant documents to the DOJ for
the filing of appropriate charges against @KA DANTE and @KA ENSO.

While significant leads have been provided to investigators, the

investigations by the PNP-CIDG, the AFP Provost Marshal, and even
the Commission on Human Rights (CHR) have been less than
complete. The PNP-CIDGs investigation particularly leaves much to be
 desired in terms of the extraordinary diligence that the Rule on the
Writ of Amparo requires.

Following the CHRs legal mandate, we gave the Commission the

following specific directives:[9]

(a) ascertaining the identities of the persons appearing in the cartographic

sketches of the two alleged abductors as well as their whereabouts;

(b) determining based on records, past and present, the identities and
locations of the persons identified by State Prosecutor Velasco alleged to be
involved in the abduction of Jonas, namely: T/Sgt. Jason Roxas (Philippine
Army); Cpl. Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo
(Philippine Air Force), and an alias T.L., all reportedly assigned with Military
Intelligence Group 15 of Intelligence Service of the AFP; further proceedings
and investigations, as may be necessary, should be made to pursue the lead
allegedly provided by State Prosecutor Velasco on the identities of the possible
abductors;

(c) inquiring into the veracity of Lipios and Manuels claims that Jonas was
abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla
unit RYG;

(d) determining based on records, past and present, as well as further

investigation, the identities and whereabouts of @KA DANTE and @KA ENSO;
and

(e) undertaking all measures, in the investigation of the Burgos abduction,

that may be necessary to live up to the extraordinary measures we require in
addressing an enforced disappearance under the Rule on the Writ of Amparo.
 In this same Resolution, we also affirmed the CAs dismissal
of the petitions for Contempt and for the issuance of a Writ
of Amparo with respect to President Macapagal-Arroyo, as she is
entitled as President to immunity from suit. [10]

On March 15, 2011, the CHR submitted to the Court

its Investigation Report on the Enforced Disappearance of Jonas
Burgos (CHR Report), in compliance with our June 22, 2010
Resolution.[11] In this Report, the CHR recounted the investigations
undertaken, whose pertinent details we quote below:

On June 26, 2010, the CHR issued Resolution CHR IV No. A2010-
100 to intensify the investigation of the case of the Burgos enforced
disappearance; and for this purpose, created a Special Investigation
Teamheaded by Commissioner Jose Manuel S. Mamauag.

xxx

In compliance with the directive mentioned in the above-

quoted En Banc Resolution of the Supreme Court, the Team conducted
field investigations by: (1) interviewing a) civilian authorities involved
in the first investigation of the instant case; b) military men under
detention for alleged violations of Articles of War; c) Security Officers
of Ever Gotesco Mall, Commonwealth Avenue, Quezon City; d) two (2)
of the three (3) CIDG witnesses; e) two (2) eyewitnesses who
described to the police sketch artist two (2) faces of a male and
female abductors of Jonas Burgos; f) Rebel-Returnees (RRs); g) officers
and men in the military and police service; h) local officials and other
government functionaries; and i) ordinary citizens; (2) inquiring into
the veracity of CIDG witnesses Lipios and Manuels claims that Jonas
was abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA
guerilla unit RYG; (3) securing case records from the prosecution
service and courts of law; (4) visiting military and police units. Offices,
camps, detention centers, and jails and requesting copies of
documents and records in their possession that are relevant to the
instant case; (5) searching for and interviewing witnesses and
informants; and (6) pursuing leads provided by them.
S. Emails Star-Struck

38. Pursuing the lead mentioned in the anonymous e-mail,

which was attached to the Burgos petition as Exhibit J, that the team
leader (T.L.) in the Jonas Burgos abduction was a certain Army
Captain, (promotable to Major), a good looking guy (tisoy), and a
potential showbiz personality known otherwise as Captain Star-struck,
the Team requested the CHR Clearance Section, Legal Division for any
information leading to T.L. or to all Philippine Army applicants for CHR
clearance whose ranks are Captains or Majors promoted during the
years 2007 to 2009.

39. Sometime in November 2010, the Team was able to track

down one CHR clearance-applicant who most likely possesses and/or
matches the information provided in the said lead. But when his
photo/picture was presented to the eyewitnesses, they failed to
identify him.

40. Undaunted with the negative identification,

the Team suspected that the team leader might not have participated
in the actual abduction inside Hapag Kainan Restaurant, the scene of
the crime, but most probably was in one of the three cars allegedly
used during the operation while giving orders or commanding the
actual abductors.

41. In relation to the above suspicion, the Team has theorized

that officers below the rank of Captain might have perpetrated the
actual abduction.

42. The Team explored this possibility and focused its attention
on the officers of the 7th ID, PA, namely: Lt. Vicente O. Dagdag, Jr., the
S-4 of 65 IB who executed an affidavit relative to the alleged stolen
Plate No. TAB-194; 2Lt. Rey B. Dequito of 56 th IB, the witness against
Edmond Dag-Uamn for the alleged crime of murder; and 1Lt. Usmalik
Tayaban, the Team Leader with the 56 th IB who issued a Custody
Receipt in connection with the Petition for Habeas Corpus filed in
Angeles City relative to the 2006 Emerito Lipio abduction case against
the police and military personnel.
T. Face-book account

43. Google search of the names of the above mentioned

individuals yielded negative result except for 1Lt. Usmalik Tayaban,
whose name was connected to a social networking site, the Face-book
account of PMA BATCH SANGHAYA 2000.

44. In the Facebook account Sanghaya, the contents of which is

categorized as PUBLIC or open to public viewing, it appears that Malik
Tayaban is a graduate of the Philippine Military Academy (PMA) Batch
Sanghaya of 2000. Other leads were also discovered, such as the
following: vernacular description of tisoy which was mentioned by one
of the users in the comment portion of the account which incidentally
was also mentioned in the anonymous e-mail as the team
leader (T.L.); the picture of a man sporting a back-pack, which was
also mentioned by witness Elsa. Per Elsas account, the person in the
cartographic sketch was wearing a back-pack.

45. Aware of the intricacies of the above-mentioned leads,

the Team caused the reproduction of all pictures in the Facebook
account for future reference; and requested the NBI (Burgos) Team for
a copy of the PMA Sanghaya Batch 2000 Year Book, also for future
reference.

U. The PMA Year Book

46. Through the efforts of the NBI (Burgos) Team, the Team was
able to get the PMA Year Book of Sanghaya Batch 2000 and the
location of one important eyewitness in the abduction.

V. JEFFREY CABINTOY

47. On December 1, 2010, the Team together with the NBI Team
were able to locate Jeffrey Cabintoy (Jeffrey), one of the two (2)
eyewitnesses who provided the police cartographic artist with the
description of two (2) principal abductors of Jonas Burgos. Jeffrey
narrated in details (sic) the circumstances that happened before and
during the abduction.

48. On December 7, 2010, the Team and Jeffrey went to the

place of incident at Ever Gotesco Mall, Quezon City to refresh his
memory and re-enact what transpired. In the afternoon of the same
date, the Team invited Jeffrey to the CHR Central Office in Quezon
City, where he was shown for identification twenty (20) copies of
colored photographs/pictures of men and the almost two hundred
forty-four (244) photographs/pictures stored in the computer and
lifted from the profiles of the Philippine Military Academy Year Book of
Batch Sanghaya 2000.

49. Jeffrey pointed to a man in the two (2) colored group

pictures/photographs, that he identified as among the 8-man group
who abducted Jonas Burgos. For record and identification purposes,
the Team encircled the face that Jeffrey identified in the two pictures;
then he affixed his signature on each picture. Also, while leafing
through the pictures of the PMA graduates in the Year Book of
Sanghaya 2000 Batch, the witness identified a picture, with a bold and
all-capitalized name HARRY AGAGEN BALIAGA JR and the words
Agawa, Besao, Mt. Province printed there under the capitalized words
PHILIPPINE ARMY written on the upper portion, as the same person he
pointed out in the two group pictures just mentioned
above. Immediately thereafter, the Team caused the production of the
photo identified by Jeffrey and asked him to affix his signature, which
he also did.

50. After examining each of these pictures, Jeffrey declared that

it dawned on him that based on his recollection of faces involved in
the abduction of Jonas Burgos, he now remembers the face of a man,
other than the two (2) faces whose description he already provided
before to a police sketch artist, who was part of the 8-man group of
abductors. And he also confirms it now that the person he is referring
to was indeed seen by him as one of those who abducted Jonas
Burgos at Hapag Kainan Restaurant of Ever Gotesco
Mall, Commonwealth Avenue, Quezon City.

51. When asked how certain he was of the person he identified,

considering that the printed copy of the photo lifted from the Face-
book Sanghaya Account was taken sometime in the year 2010; while
the picture appearing in the computer was lifted from the PMA
Sanghaya 2000 Batch Year Book, Jeffrey replied Ang taong ito ay aking
natatandaan sa kadahilanan na nuong una siya ay nakaupo na katabi
sa bandang kaliwa nang taong dumukot at natapos silang mag usap
lumapit sa akin at pilit akong pinipigilan na wag daw makialam at ang
sabi nya sa akin ay WAG KA DITONG MAKIALAM KASI ANG TAONG ITO
AY MATAGAL NA NAMING SINUSUBAYBAYAN DAHIL SA DROGA kahit pa
halos nagmamakaawa na nang tulong ang taong dinukot; at matapos
nuon ay sapilitan na nilang binitbit sa labas ang biktima. ( I remember
this man for the reason that at first he was seated at the left side of
the person abducted; and after they talked, he approached me and
was preventing me forcefully saying not to interfere and he said to
me: DONT YOU INTERFERE HERE SINCE WE HAVE BEEN DOING SOME
SURVEILLANCE ON THIS MAN FOR SOME TIME ALREADY BECAUSE OF
DRUGS despite that the man was already pleading for help, and after
that, they forcibly dragged the victim outside.)

52. When asked if he could identify the picture of Jonas Burgos,

Jeffrey affirmed that the person in the picture is the person referred to
by him as the victim of abduction and his name is Jonas Burgos. He
further stated that he learned of the victims name when he saw his
picture flashed on TV and hear his name. When asked if he is willing to
execute an affidavit on the facts that he has just provided, he
answered yes and at that juncture the Team assisted him in the
preparation of his Sinumpaang Salaysay based on his personal
knowledge and in a language known to him. After which,
the Team asked Jeffrey to read, examine and determine whether all
the information he just provided are reflected in his Sinumpaang
Salaysay and Jeffrey answered yes. Thereafter, Jeffrey affixed his
signature after being sworn to before a lady CHR lawyer and a duly
commissioned Notary Public for and in Quezon City.

W. Daguman confirmed Tayabans and Baliagas actual affiliation with

the military and their assignment at the 56th Infantry Battalion, 7th ID

53. On December 10, 2010, the Team went to the Bulacan

Provincial Jail to visit Edmond Dag-Uman and asked him to identify his
former Company Commander at the 56th IB, 71 ID, Lt. Usmalik
Tayaban and to identify the pictures.

54. Edmond Dag-uman identified the encircled in the picture as

LT. HARRY A. BALIAGA, JR., and the man with a receding hair as LT.
USMALIK TAYABAN, his former Company Commander.
 55. When asked if he was willing to reduce in writing his
precious statements and those that just mentioned, he replied BAKA
MAPAHAMAK AKO NYAN!(That might endanger me!). Following a
lengthy discussion on the pros and cons of executing a sworn
statement and the assurance of the Team to exclude his statements
that are critical to the military establishment, it dawned on Dag-uman
that his statement would be of help to the Commission in bringing his
case to the proper authorities for review and appropriate action, that
he eventually expressed his willingness to do so.

56. After which the Team immediately went to a Computer

Caf nearby to encode the Salaysay, then the printed copy was
presented to him for his determination whether he is in full accord
with the contents therein. Edmond spent about thirty (30) minutes
reading it and changed the word Charlie to Bravo and then affixed his
initial on it. He also signed the Sinumpaang Salaysay after being
sworn to before a team member authorized to administer oath.

X. Second visit to ELSA AGASANG and her Supplemental Sworn

Statement

57. On January 26, 2011, the Team along with witness Jeffrey
went to Bicol to meet witness Elsa. The aim was to help Elsa recall the
faces of those she saw in the abduction by showing to her recently-
acquired pictures of suspects.

58. For the first time they would re-unite, after almost four
years since that fateful day of April 28, 2007, when both of them had
the experience of witnessing an abduction incident, which rendered
them jobless and unsafe.

59. The Team told Jeffrey to sit in front of Elsa without

introducing him to her. After about half an hour into the conversation,
she expressed disbelief when she realized that she was facing in
person he co-worker that she knew very well.

60. On January 29, 2011, Elsa executed her Karagdagang

Sinumpaang Salaysay affirming her Salaysay given before PCI Lino DL
 Banaag at the CIDU, Quezon City Police District Office, Camp Karingal,
Quezon City; and corroborating the material allegations contained in
the Sinumpaang Salaysay of Jeffrey.

On the basis of the evidence it had gathered, the CHR

submitted the following findings:[12]

Based on the facts developed by evidence obtaining in this

case, the CHR finds that the enforced disappearance of Jonas
Joseph T. Burgos had transpired; and that his constitutional
rights to life liberty and security were violated by the
Government have been fully determined.
Jeffrey Cabintoy and Elsa Agasang have witnessed on
that fateful day of April 28, 2007 the forcible abduction of
Jonas Burgos by a group of about seven (7) men and a
woman from the extension portion of Hapag Kainan Restaurant,
located at the ground floor of Ever Gotesco Mall, Commonwealth
Avenue, Quezon City.

xxxx

The eyewitnesses mentioned above were Jeffrey Cabintoy

(Jeffrey) and Elsa Agasang (Elsa), who at the time of the abduction
were working as busboy and Trainee-Supervisor, respectively, at
Hapag Kainan Restaurant.

In his Sinumpaang Salaysay, Jeffrey had a clear

recollection of the face of HARRY AGAGEN BALIAGA, JR. as one
of the principal abductors, apart from the faces of the two
abductors in the cartographic sketches that he described to the police,
after he was shown by the Team the pictures in the PMA Year Book of
Batch Sanghaya 2000 and group pictures of men taken some years
thereafter.

The same group of pictures were shown to detained

former 56th IB Army trooper Edmond M. Dag-uman (Dag-
uman), who also positively identified Lt. Harry Baliaga,
Jr. Dagumans Sinumpaang Salaysay states that he came to
know Lt. Baliaga as a Company Commander in the 56 th IB while
he was still in the military service (with Serial No. 800693,
from 1997 to 2002) also with the 56 th IB but under 1Lt.
Usmalik Tayaban, the Commander of Bravo Company. When he
was arrested and brought to the 56 th IB Camp in April 2005, he did not
see Lt. Baliaga anymore at the said camp. The similar reaction that
the pictures elicited from both Jeffrey and Daguman did not pass
unnoticed by the Team. Both men always look pensive, probably
because of the pathetic plight they are in right now. It came as a
surprise therefore to the Team when they could hardly hide their smile
upon seeing the face of Baliaga, as if they know the man very well.

Moreover, when the Team asked how Jeffrey how certain was he
that it was indeed Baliaga that he saw as among those who actually
participated in Jonas abduction, Jeffrey was able to give a graphic
description and spontaneously, to boot, the blow by blow account of
the incident, including the initial positioning of the actors, specially
Baliaga, who even approached, talked to, and prevented him from
interfering in their criminal act.

A Rebel-returnee (RR) named Maria Vita Lozada y Villegas @KA

MY, has identified the face of the female in the cartographic sketch as
a certain Lt. Fernando. While Lozada refuses to include her
identification of Lt. Fernando in her Sinumpaang Salaysay for fear of a
backlash, she told the Team that she was certain it was Lt. Fernando in
the cartographic sketch since both of them were involved in counter-
insurgency operations at the 56th IB, while she was under the care of
the battalion from March 2006 until she left the 56 th IB Headquarters
in October 2007. Lozadas involvement in counter-insurgency
operations together with Lt. Fernando was among the facts gathered
by the CHR Regional Office 3 Investigators, whose investigation into
the enforced disappearance of Jonas Joseph Burgos was documented
by way of an After Mission Report dated August 13, 2008.

Most if not all the actual abductors would have been

identified had it not been for what is otherwise called
as evidentiary difficulties shamelessly put up by some police
and military elites. The deliberate refusal of TJAG Roa to
provide the CHR with the requested documents does not only
defy the Supreme Court directive to the AFP but ipso
facto created a disputable presumption that AFP personnel
were responsible for the abduction and that their superiors
would be found accountable, if not responsible, for the crime
committed. This observation finds support in the disputable
presumption That evidence willfully suppressed would be adverse if
produced. (Paragraph (e), Section 3, Rule 131 on Burden of Proof and
Presumptions, Revised Rules on Evidence of the Rules of Court of
the Philippines).

In saying that the requested document is irrelevant,

the Team has deemed that the requested documents and
profiles would help ascertain the true identities of the
cartographic sketches of two abductors because a certain
Virgilio Eustaquio has claimed that one of the intelligence
operatives involved in the 2007 ERAP 5 case fits the
description of his abductor.

As regards the PNP CIDG, the positive identification of

former 56th IB officer Lt. HARRY A. BALIAGA, JR. as one of the
principal abductors has effectively crushed the theory of the
CIDG witnesses that the NPAs abducted Jonas. Baliagas true
identity and affiliation with the military have been established
by overwhelming evidence corroborated by detained former
Army trooper Dag-uman.

For lack of material time, the Commission will continue to

investigate the enforced disappearance of Jonas Burgos as an
independent body and pursuant to its mandate under the 1987
Constitution. Of particular importance are the identities and locations
of the persons appearing in the cartographic sketches; the allegations
that CIDG Witnesses Emerito G. Lipio and Meliza Concepcion-Reyes
are AFP enlisted personnel and the alleged participation of Delfin De
Guzman @ Ka Baste in the abduction of Jonas Burgos whose case for
Murder and Attempted Murder was dismissed by the court for failure
of the lone witness, an army man of the 56th IB to testify against him.

Interview with Virgilio Eustaquio, Chairman of the Union Masses

for Democracy and Justice (UMDJ), revealed that the male abductor of
Jonas Burgos appearing in the cartographic sketch was among the
raiders who abducted him and four others, identified as Jim
Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona
otherwise known as ERAP FIVE.
Unfortunately, and as already pointed out above, The Judge
Advocate General (TJAG) turned down the request of the Team for a
profile of the operatives in the so-called Erap 5 abduction on the
 ground of relevancy and branded the request as a fishing expedition
per its Disposition Form dated September 21, 2010.
Efforts to contact Virgilio Eustaquio to secure his affidavit
proved futile, as his present whereabouts cannot be determined. And
due to lack of material time, the Commission decided to pursue the
same and determine the whereabouts of the other members of
the Erap 5 on its own time and authority as an independent body.

Based on the above-cited findings, the CHR submitted the

following recommendations for the Courts consideration, viz:[13]

i. To DIRECT the Department of Justice (DOJ), subject to

certain requirements, to immediately admit witnesses Jeffrey T.
Cabintoy and Elsa B. Agasang to the Witness Protection, Security and
Benefit Program under Republic Act No. 6981;

ii. To DIRECT the Department of Justice (DOJ) to commence the

filing of Criminal Charges for Kidnapping/Enforced Disappearance
and/or Arbitrary Detention against 1LT. HARRY AGAGEN BALIAGA, JR. of
the Philippine Army, as Principal by Direct Participation in the
abduction of Jonas Joseph T. Burgos on April 28, 2007 from Ever
Gotesco Mall, Commonwealth Avenue, Quezon City;

iii. To DIRECT the Department of Justice to cause the filing

of Obstruction of Justice against Emerito Lipio y Gonzales; Marlon
Manuel y de Leon; and Meliza Concepcion-Reyes for giving false or
fabricated information to the CIDG and for their willful refusal to
cooperate with the CHR Team in the investigation of the herein
enforced disappearance;

iv. To DIRECT Cavite Provincial Prosecutor Emmanuel Velasco to

appear before the Supreme Court and to divulge his source/informant
as the same does not fall under the privilege communication rule;
v. To DIRECT the PNP-CIDG RC, NCRCIDU, Atty. Joel Napoleon M.
Coronel, to explain his Memorandum to the CIDG-CIDD stating
that the witnesses were reportedly turned over by the Bulacan PPO
and Philippine Army to the CIDG for investigation, considering that
said witnesses were not under police or military custody at the time of
the supposed turn-over in the evening of August 22, 2007 and to
identify the PNP officer who directed the CIDG operatives to fetch
Emerito G. Lipio in Bulacan and the two other CIDG witnesses for
tactical interrogation;

vi. To REQUIRE General Roa of the Judge Advocate General

Office, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, to
explain their failure and/or refusal to provide the CHR with copies of
documents relevant to the case of Jonas T. Burgos, particularly the
following: (a) Profile and Summary of Information and pictures of
T/Sgt. Jason Roxas (Philippine Army) and three (3) other enlisted
personnel mentioned in paragraph (1) of the dispositive portion of the
Supreme Court En Banc Resolution issued on 22 June 2010 in the
instant consolidated cases, including a certain 2Lt. Fernando, a lady
officer involved in the counter-insurgency operations of the 56th IB in
2006 to 2007; (b) copies of the records of the 2007 ERAP 5 incident in
Kamuning, Quezon City and the complete list of the intelligence
operatives involved in that said covert military operation, including
their respective Summary of Information and individual pictures;
and (c) complete list of the officers, women and men assigned at the
56th and 69th Infantry Battalion and the 7th Infantry Division from
January 1, 2004 to June 30, 2007 with their respective profiles,
Summary of Information and pictures; including the list of captured
rebels and rebels who surrendered to the said camps and their
corresponding pictures and copies of their Tactical Interrogation
Reports and the cases filed against them, if any;

vii. To DIRECT the PNP-CIDG to comply with its mandate under

paragraph (3) of the dispositive portion of the Supreme Court En
Banc Resolution promulgated on 22 June 2010 in the instant
consolidated cases;

viii. To DIRECT Harry A. Baliaga, Jr., the Philippine Armys 56th

Infantry Battalion in Bulacan and 7th Infantry Division
at Fort Magsaysay in Laur, Nueva Ecija to produce the living body of
the victim Jonas Joseph T. Burgos before this Court;
 ix. To DIRECT the Department of Justice to review and
determine the probable liability/accountability of the officers and
enlisted personnel concerned of the Philippine Armys 56th IB and the
7th ID, relative to the torture and/or other forms of ill-treatment of
Edmond M. Dag-uman, while he was in detention at Fort Magsaysay
sometime in October 2005, as part of the collateral discoveries in the
conduct of this investigation;

x. To DIRECT the Department of Justice to review the case filed

against Edmond Dag-uman alias DELFIN DE GUZMAN with the
Regional Trial Court Branch 10 in Malolos City docketed as Criminal
Case Nos. 1844-M-2005 and 186-M-2006; and the legal basis, if any,
for his continued detention at the Bulacan Provincial Jail in Malolos
City; and

xi. To DIRECT the Department of Interior and Local Government

(DILG) to study the probable liability of Adelio A. Asuncion, former Jail
Warden of Bulacan Provincial Jail for his failure to account the records
of the inmates more specifically the records of turn-over Edmond Dag-
uman from the 7th ID.

Pursuant to our June 22, 2010, the CHR furnished the

petitioner with the copy of its report, which the petitioner
apparently relied upon in filing a criminal complaint against Lt.
Harry A. Baliaga, Jr. and other members of the military.[14]

OUR RULING

A. Amparo
 After reviewing the evidence in the present case, the CA
findings and our findings in our June 22, 2010 Resolution
heretofore mentioned, including the recent CHR findings that Lt.
Harry A. Baliaga, Jr., (Lt. Baliaga) of the 56th Infantry Battalion,
7th Infantry Division, Philippine Army is one of the abductors of
Jonas, we resolve to hold in abeyance our ruling on the merits in
the Amparo aspect of the present case and refer this case back to
the CA in order to allow Lt. Baliaga and the
present Amparo respondents to file their respective Comments on
the CHR Report within a non-extendible period of fifteen (15) days
from receipt of this Resolution. The CA shall continue with the
hearing of the Amparo petition in light of the evidence previously
submitted, the proceedings it already conducted and the
subsequent developments in this case, particularly the CHR
Report. Thereafter, the CA shall rule on the merits of
the Amparo petition. For this purpose, we order that Lt. Baliaga be
impleaded as a party to the Amparo petition (CA-G.R. SP No.
00008-WA). This directive to implead Lt. Baliaga is without
prejudice to similar directives we may issue with respect to others
whose identities and participation may be disclosed in future
investigations.

We also note that Office of the Judge Advocate General (TJAG)

failed and/or refused to provide the CHR with copies of documents
relevant to the case of Jonas, and thereby disobeyed our June 22,
2010 Resolution. To recall, we issued a Resolution declaring the
CHR as the Courts directly commissioned agency tasked with
the continuation of the investigation of Jonas abduction and the
gathering of evidence, with the obligation to report its factual
findings and recommendations to this Court. In this same
Resolution, we required the then incumbent Chiefs of the AFP and
the PNP to make available and to provide copies to the CHR, of all
documents and records in their possession and as the CHR may
require, relevant to the case of Jonas, subject to reasonable
regulations consistent with the Constitution and existing laws.

In its March 15, 2011 Report, the CHR recommended, for the
Courts consideration:[15]
vi. To REQUIRE General Roa of the Judge Advocate General
Office, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP,
to explain their failure and/or refusal to provide the CHR with
copies of documents relevant to the case of Jonas T. Burgos,
particularly the following: (a) Profile and Summary of
Information and pictures of T/Sgt. Jason Roxas (Philippine Army)
and three (3) other enlisted personnel mentioned in paragraph
(1) of the dispositive portion of the Supreme Court En Banc
Resolution issued on 22 June 2010 in the instant consolidated
cases, including a certain 2Lt. Fernando, a lady officer involved
in the counter-insurgency operations of the 56th IB in 2006 to
2007; (b) copies of the records of the 2007 ERAP 5 incident in
Kamuning, Quezon City and the complete list of the intelligence
operatives involved in that said covert military operation,
including their respective Summary of Information and
individual pictures; and (c) complete list of the officers,
women and men assigned at the 56th and 69th Infantry
Battalion and the 7th Infantry Division from January 1, 2004 to
June 30, 2007 with their respective profiles, Summary of
Information and pictures; including the list of captured rebels
and rebels who surrendered to the said camps and their
corresponding pictures and copies of their Tactical Interrogation
Reports and the cases filed against them, if any.

Section 16 of the Rule on the Writ of Amparo provides that any

person who otherwise disobeys or resists a lawful process or order
of the court may be punished for contempt, viz:
 SEC. 16. Contempt. The court, justice or judge may order the
respondent who refuses to make a return, or who makes a false
return, or any person who otherwise disobeys or resists a lawful
process or order of the court to be punished for contempt. The
contemnor may be imprisoned or imposed a fine

Acting on the CHRs recommendation and based on the above

considerations, we resolve to require General Roa of TJAG, AFP,
and the Deputy Chief of Staff for Personnel, JI, AFP, at the time of
our June 22, 2010 Resolution, and then incumbent Chief of Staff,
AFP,[16] to show cause and explain, within a non-extendible period
of fifteen (15) days from receipt of this Resolution, why they
should not be held in contempt of this Court for defying our June
22, 2010 Resolution.

B. Habeas Corpus

In light of the new evidence obtained by the CHR, particularly the

Cabintoy evidence that positively identified Lt. Baliaga as one of
the direct perpetrators in the abduction of Jonas and in the
interest of justice, we resolve to set aside the CAs dismissal of
the habeas corpus petition and issue anew the writ of habeas
corpus returnable to the Presiding Justice of the CA who shall
immediately refer the writ to the same CA division that decided
the habeas corpus petition (CA-GR SP No. 99839).

For this purpose, we also order that Lt. Baliaga be impleaded as a

party to the habeas corpus petition and require him together with
the incumbent Chief of Staff, AFP; the incumbent Commanding
General, Philippine Army; and the Commanding Officer of the
56th IB at the time of the disappearance of Jonas, Lt. Col. Feliciano
to produce the person of Jonas and to show cause why he should
not be released from detention.

The CA shall rule on the merits of the habeas corpus petition in

light of the evidence previously submitted to it, the proceedings
already conducted, and the subsequent developments in this case
(particularly the CHR report) as proven by evidence properly
adduced before it. The Court of Appeals and the parties may
require Prosecutor Emmanuel Velasco, Jeffrey Cabintoy, Edmund
Dag-uman, Melissa Concepcion Reyes, Emerito Lipio and Marlon
Manuel to testify in this case.

C. Petition for Contempt

In dismissing the petition, the CA held:[17]

Undoubtedly, the accusation against respondents is criminal in

nature. In view thereof, the rules in criminal prosecution and corollary
recognition of respondents constitutional rights inevitably come into
play. As held in People v. Godoy:

In proceedings for criminal contempt, the defendant is

presumed innocent and the burden is on the prosecution
to prove the charges beyond reasonable doubt.

Hence, assuming that there is circumstantial evidence to

support petitioners allegations, said circumstantial evidence falls short
of the quantum of evidence that is required to establish the guilt of an
accused in a criminal proceeding, which is proof beyond reasonable
doubt.
 The pertinent provision of the Rules of Court on contempt, in
relation to a Habeas Corpus proceeding, is Section 16, Rule 102,
which provides:

Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. - A clerk
of a court who refuses to issue the writ after allowance thereof and demand
therefor, or a person to whom a writ is directed, who neglects or refuses to
obey or make return of the same according to the command thereof, or makes
false return thereof, or who, upon demand made by or on behalf of the prisoner,
refuses to deliver to the person demanding, within six (6) hours after the demand
therefor, a true copy of the warrant or order of commitment, shall forfeit to the
party aggrieved the sum of one thousand pesos, to be recovered in a proper
action, and may also be punished by the court or judge as for contempt.
[emphasis supplied]

In Montenegro v. Montenegro,[18] we explained the types and

nature of contempt, as follows:

Contempt of court involves the doing of an act, or the failure to

do an act, in such a manner as to create an affront to the court and the
sovereign dignity with which it is clothed. It is defined as "disobedience
to the court by acting in opposition to its authority, justice and
dignity."7 The power to punish contempt is inherent in all courts,
because it is essential to the preservation of order in judicial
proceedings, and to the enforcement of judgments, orders and mandates
of the courts; and, consequently, to the due administration of justice.

xxx
Contempt, whether direct or indirect, may be civil or
criminal depending on the nature and effect of the contemptuous
act. Criminal contempt is "conduct directed against the
authority and dignity of the court or a judge acting judicially;
it is an act obstructing the administration of justice which
tends to bring the court into disrepute or disrespect." On the
other hand, civil contempt is the failure to do something ordered to be
done by a court or a judge for the benefit of the opposing party
therein and is therefore, an offense against the party in whose behalf
 the violated order was made. If the purpose is to punish, then it
is criminal in nature; but if to compensate, then it is
civil. [emphasis supplied]

We agree with the CA that indirect contempt is the

appropriate characterization of the charge filed by the petitioner
against the respondents and that the charge is criminal in
nature. Evidently, the charge of filing a false return constitutes
improper conduct that serves no other purpose but to mislead,
impede and obstruct the administration of justice by the
Court. In People v. Godoy,[19] which the CA cited, we specifically
held that under paragraph (d) of Section 3, Rule 71 of the Rules of
Court, any improper conduct tending, directly or indirectly, to
impede, obstruct or degrade the administration of justice
constitutes criminal contempt.

A criminal contempt proceeding has been characterized

as sui generis as it partakes some of the elements of both a civil
and criminal proceeding, without completely falling under either
proceeding. Its identification with a criminal proceeding is in the
use of the principles and rules applicable to criminal cases, to the
extent that criminal procedure is consistent with the summary
nature of a contempt proceeding. We have consistently held and
established that the strict rules that govern criminal prosecutions
apply to a prosecution for criminal contempt; that the accused is
afforded many of the protections provided in regular criminal
cases; and that proceedings under statutes governing them are to
be strictly construed.[20]
 Contempt, too, is not presumed. In proceedings for criminal
contempt, the defendant is presumed innocent and the
burden is on the prosecution to prove the charges beyond
reasonable doubt.[21] The presumption of innocence can be
overcome only by proof of guilt beyond reasonable doubt, which
means proof to the satisfaction of the court and keeping in mind
the presumption of innocence that precludes every reasonable
hypothesis except that for which it is given. It is not sufficient for
the proof to establish a probability, even though strong, that the
fact charged is more likely true than the contrary. It must
establish the truth of the fact to a reasonable certainty and moral
certainty a certainty that convinces and satisfies the reason and
conscience of those who are to act upon it. [22]

For the petitioner to succeed in her petition to declare the

respondents in contempt for filing false returns in the habeas
corpus proceedings before the CA, she has the burden of proving
beyond reasonable doubt that the respondents had custody of
Jonas. As the CA did, we find that the pieces of evidence on
record as of the time of the CA proceedings were merely
circumstantial and did not provide a direct link between the
respondents and the abduction of Jonas; the evidence did not
prove beyond reasonable doubt that the respondents had a hand
in the abduction of Jonas, and consequently, had custody of him
at the time they filed their returns to the Writ of habeas
corpus denying custody of Jonas.
 However, the subsequent developments in this case,
specifically, the investigative findings presented to us by the CHR
pointing to Lt. Baliaga as one of the abductors of Jonas, have
given a twist to our otherwise clear conclusion. Investigations will
continue, consistent with the nature of Amparo proceedings to be
alive until a definitive result is achieved, and these investigations
may yet yield additional evidence affecting the conclusion the CA
made. For this reason, we can only conclude that the CAs
dismissal of the contempt charge should be provisional, i.e.,
without prejudice to the re-filing of the charge in the future should
the petitioner find this step warranted by the evidence in the
proceedings related to Jonass disappearance, including the
criminal prosecutions that may transpire.

To adjust to the extraordinary nature of Amparo and habeas

corpus proceedings and to directly identify the parties bound by
these proceedings who have the continuing obligation to comply
with our directives, the AFP Chief of Staff, the Commanding
General of the Philippine Army, the Director General of the PNP,
the Chief of the PNP-CIDG and the TJAG shall be named as parties
to this case without need of naming their current incumbents,
separately from the then incumbent officials that the petitioner
named in her original Amparo and habeas corpus petitions, for
possible responsibility and accountability.

In light of the dismissal of the petitions against President Gloria

Macapagal-Arroyo who is no the longer the President of the
Republic of the Philippines, she should now be dropped as a party-
respondent in these petitions.
 WHEREFORE, in the interest of justice and for the foregoing
reasons, we RESOLVE to:

I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA-G.R.

SP No. 99839)

a. ISSUE a Writ of Habeas Corpus anew, returnable to

the Presiding Justice of the Court of Appeals who shall
immediately refer the writ to the same Division that
decided the habeas corpus petition;

b. ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA-G.R.

SP No. 99839 and G.R. No. 183711, and REQUIRE him,
together with the incumbent Chief of Staff, Armed
Forces of the

Philippines; the incumbent Commanding General,

Philippine Army; and the Commanding Officer of the
56th IB, 7th Infantry Division, Philippine Army at the time
of the disappearance of Jonas Joseph T. Burgos, Lt. Col.
Melquiades Feliciano, to produce the person of Jonas
Joseph T. Burgos under the terms the Court of Appeals
 shall prescribe, and to show cause why Jonas Joseph T.
Burgos should not be released from detention;

c. REFER back the petition for habeas corpus to the

same Division of the Court of Appeals which shall
continue to hear this case after the required Returns
shall have been filed and render a new decision within
thirty (30) days after the case is submitted for decision;
and

d. ORDER the Chief of Staff of the Armed Forces of the

Philippines and the Commanding General of the
Philippine Army to be impleaded as parties, separate
from the original respondents impleaded in the petition,
and the dropping or deletion of President Gloria
Macapagal-Arroyo as party-respondent.

II. IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA-

G.R. SP No. 100230)

e. AFFIRM the dismissal of the petitioners petition for

Contempt in CA-G.R. SP No. 100230, without prejudice
to the re-filing of the contempt charge as may be
warranted by the results of the subsequent CHR
investigation this Court has ordered; and
f. ORDER the dropping or deletion of former President
Gloria Macapagal-Arroyo as party-respondent, in light of
the unconditional dismissal of the contempt charge
against her.

III. IN G.R. NO. 183713 (WRIT OF AMPARO PETITION,

CA-G.R. SP No. 00008-WA)

g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA-

G.R. SP No. 00008-WA and G.R. No. 183713, without
prejudice to similar directives we may issue with
respect to others whose identities and participation
may be disclosed in future investigations and
proceedings;

h. DIRECT Lt. Harry A. Baliaga, Jr., and

the present Amparo respondents to file their Comments
on the CHR report with the Court of Appeals, within a
non-extendible period of fifteen (15) days from receipt
of this Resolution.

i. REQUIRE General Roa of the Office of the Judge

Advocate General, AFP; the Deputy Chief of Staff for
Personnel, JI, AFP, at the time of our June 22, 2010
Resolution; and then Chief of Staff, AFP, Gen. Ricardo
David, (a) to show cause and explain to this Court,
within a non-extendible period of fifteen (15) days from
receipt of this Resolution, why they should not be held
in contempt of this Court for their defiance of our June
22, 2010 Resolution; and (b) to submit to this Court,
within a non-extendible period of fifteen (15) days from
receipt of this Resolution, a copy of the documents
requested by the CHR, particularly:

1) The profile and Summary of Information and

pictures of T/Sgt. Jason Roxas (Philippine Army);
Cpl. Maria Joana Francisco (Philippine Air Force);
M/Sgt. Aron Arroyo (Philippine Air Force); an alias
T.L. - all reportedly assigned with Military
Intelligence Group 15 of Intelligence Service of the
Armed Forces of the Philippines - and 2Lt.
Fernando, a lady officer involved in the counter-
insurgency operations of the 56th IB in 2006 to
2007;

2) Copies of the records of the 2007 ERAP 5

incident in Kamuning, Quezon City and the
complete list of the intelligence operatives
involved in that said covert military operation,
including their respective Summary of Information
and individual pictures; and

3) Complete list of the officers, women and men

assigned at the 56th and 69th Infantry Battalion
 and the 7th Infantry Division from January 1, 2004
to June 30, 2007 with their respective profiles,
Summary of Information and pictures; including
the list of captured rebels and rebels who
surrendered to the said camps and their
corresponding pictures and copies of their Tactical
Interrogation Reports and the cases filed against
them, if any.

These documents shall be released exclusively to this

Court for our examination to determine their relevance
to the present case and the advisability of their public
disclosure.

j. ORDER the Chief of Staff of the Armed Forces of the

Philippines and the Commanding General of the
Philippine Army to be impleaded as parties, in
representation of their respective organizations,
separately from the original respondents impleaded in
the petition; and the dropping of President Gloria
Macapagal-Arroyo as party-respondent;

k. REFER witnesses Jeffrey T. Cabintoy and Elsa B.

Agasang to the Department of Justice for admission to
the Witness Protection Security and Benefit Program,
subject to the requirements of Republic Act No. 6981;
and
 l. NOTE the criminal complaint filed by the petitioner
with the DOJ which the latter may investigate and act
upon on its own pursuant to Section 21 of the Rule on
the Writ of Amparo.

XVI.5 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. 07-9-
12-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
assured Virginia though that they will cooperate and help in the investigation of her
missing husband.[18]

Version of the Respondent

According to respondent, Bong and Ben were not merely invited. They were
unlawfully arrested, shoved into the Asian Land vehicle and brought to the security
office for investigation. Upon seeing Ben at the security office, Navia lividly
grumbled Ikaw na naman?[19] and slapped him while he was still seated. Ben begged for
mercy, but his pleas were met with a flurry of punches coming from Navia hitting him on
different parts of his body.[20] Navia then took hold of his gun, looked at Bong, and
said, Wala kang nakita at wala kang narinig, papatayin ko na si Ben.[21]

Bong admitted that he and Ben attempted to take the lamp. He explained that the
area where their house is located is very dark and his father had long been asking the
administrator of Grand Royale Subdivision to install a lamp to illumine their area. But
since nothing happened, he took it upon himself to take a lamp from one of the posts in
the subdivision and transfer it to a post near their house. However, the lamp Bong got
was no longer working. Thus, he reinstalled it on the post from which he took it and no
longer pursued his plan. [22]

Later on, Lolita was instructed to sign an entry in the guards logbook where she
undertook not to allow Ben to stay in her house anymore. [23] Thereafter, Navia again
asked Lolita to sign the logbook. Upon Lolitas inquiry as to why she had to sign again,
Navia explained that they needed proof that they released her son Bong unharmed but
that Ben had to stay as the latters case will be forwarded to the barangay. Since she has
poor eyesight, Lolita obligingly signed the logbook without reading it and then left with
Bong.[24] At that juncture, Ben grabbed Bong and pleaded not to be left alone. However,
since they were afraid of Navia, Lolita and Bong left the security office at once leaving
Ben behind.[25]
 Moments after Lolita and Bong reached their house, Buising arrived and asked
Lolita to sign the logbook again. Lolita asked Buising why she had to sign again when
she already twice signed the logbook at the headquarters. Buising assured her that what
she was about to sign only pertains to Bongs release. Since it was dark and she has poor
eyesight, Lolita took Buisings word and signed the logbook without, again, reading what
was written in it. [26]
The following morning, Virginia went to the Asian Land security office to visit
her husband Ben, but only to be told that petitioners had already released him together
with Bong the night before. She then looked for Ben, asked around, and went to
the barangay. Since she could not still find her husband, Virginia reported the matter to
the police.

In the course of the investigation on Bens disappearance, it dawned upon Lolita

that petitioners took advantage of her poor eyesight and naivete. They made her sign the
logbook as a witness that they already released Ben when in truth and in fact she never
witnessed his actual release. The last time she saw Ben was when she left him in
petitioners custody at the security office.[27]

Exasperated with the mysterious disappearance of her husband, Virginia filed a Petition
for Writ of Amparo[28] before the RTC of Malolos City. Finding the petition sufficient in
form and substance, the amparo court issued an Order[29] dated June 26, 2008 directing,
among others, the issuance of a writ of amparo and the production of the body of Ben
before it on June 30, 2008. Thus:

WHEREFORE, conformably with Section 6 of the Supreme Court Resolution

[in] A.M. No. 07-[9]-12-SC, also known as The Rule On The Writ Of Amparo, let a writ
of amparo be issued, as follows:

(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew

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

(2) ORDERING the holding of a summary hearing of the petition on the

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

(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew

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

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

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

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

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

(4) GRANTING, motu proprio, a Temporary Protection Order prohibiting the

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

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

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

A Writ of Amparo[31] was accordingly issued and served on the 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, Virginiamiserably 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. 07-9-12-
SC came about after Congress enacted Republic Act (RA) No. 9851 [48] on December 11,
2009. Section 3(g) thereof defines enforced or involuntary disappearances as follows:

(g) "Enforced or involuntary disappearance of persons" means the arrest,

detention, or abduction of persons by, or with the authorization,
support or acquiescence of, a State or a political organization
followed by a refusal to acknowledge that deprivation of freedom or
to give information on the fate or whereabouts of those persons, with
the intention of removing from the protection of the law for a
prolonged period of time.

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

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

From the statutory definition of enforced disappearance, thus, we can derive the
following elements that constitute it:

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

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

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

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

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

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

In the present case, we do not doubt Bongs testimony that Navia had a menacing
attitude towards Ben and that he slapped and inflicted fistic blows upon him.Given the
circumstances and the pugnacious character of Navia at that time, his threatening
statement, Wala kang nakita at wala kang narinig, papatayin ko na si Ben,cannot be
taken lightly. It unambiguously showed his predisposition at that time. In addition, there
is nothing on record which would support petitioners assertion that they released Ben on
the night of March 31, 2008 unscathed from their wrath. Lolita sufficiently explained
how she was prodded into affixing her signatures in the logbook without reading the
entries therein. And so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never identified or presented in
court and whose complaint was never reduced in writing.

But lest it be overlooked, in an amparo petition, proof of disappearance alone is

not enough. It is likewise essential to establish that such disappearance was carried out
with the direct or indirect authorization, support or acquiescence of the government. This
indispensable element of State participation is not present in this case. The petition does
not contain any allegation of State complicity, and none of the evidence presented tend to
show that the government or any of its agents orchestrated Bens disappearance. In fact,
none of its agents, officials, or employees were impleaded or implicated
in Virginias amparo petition whether as responsible or accountable persons. [51] Thus, in
the absence of an allegation or proof that the government or its agents had a hand in Bens
disappearance or that they failed to exercise extraordinary diligence in investigating his
case, the Court
will definitely not hold the government or its agents either as responsible or
accountable persons.

We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may
lie against a private individual or entity. But even if the person sought to be held
accountable or responsible in an amparo petition is a private individual or entity, still,
government involvement in the disappearance remains an indispensable element. Here,
petitioners are mere security guards at Grand Royale Subdivision in Brgy.
Lugam, Malolos City and their principal, the Asian Land, is a private entity. They do not
work for the government and nothing has been presented that would link or connect them
to some covert police, military or governmental operation. As discussed above, to fall
within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance
must be attended by some governmental involvement. This hallmark of State
participation differentiates an enforced disappearance case from an ordinary case of a
missing person.

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

XVI.6 LEONEN, J.:

Submitted for our resolution is a prayer for the issuance of a temporary restraining order and/or writ
of preliminary injunction to enjoin "the Regional Trial Court, Branch 26, in Manila from implementing
its Decision x x x in Civil Case No. 12-127405 granting respondent's application for the issuance of
inspection and production orders x x x."1 This is raised through a Petition for Review on
Certiorari under Rule 45 from the "Decision" rendered by the Regional Trial Court dated 20 March
2012.

From the records, it appears that on 27 February 2012, respondent Magtanggol B. Gatdula filed
a Petition for the Issuance of a Writ of Amparo in the Regional Trial Court of Manila.2 This case was
docketed as In the Matter of the Petition for Issuance of Writ of Amparo of Atty. Magtanggol B.
Gatdula, SP No. 12-127405. It was raffled to the sala of Judge Silvino T. Pampilo, Jr. on the same
day.

The Amparo was directed against petitioners Justice Secretary Leila M. De Lima, Director Nonnatus
R. Rojas and Deputy Director Reynaldo O. Esmeralda of the National Bureau of Investigation (DE
LIMA, ET AL. for brevity). Gatdula wanted De Lima, et al. "to cease and desist from framing up
Petitioner [Gatdula] for the fake ambush incident by filing bogus charges of Frustrated Murder
against Petitioner [Gatdula] in relation to the alleged ambush incident." 3

Instead of deciding on whether to issue a Writ of Amparo, the judge issued summons and ordered
De Lima, et al. to file an Answer.4 He also set the case for hearing on 1 March 2012. The hearing
was held allegedly for determining whether a temporary protection order may be issued. During that
hearing, counsel for De Lima, et al. manifested that a Return, not an Answer, is appropriate
for Amparo cases.5

In an Order dated 2 March 2012,6 Judge Pampilo insisted that "[s]ince no writ has been issued,
return is not the required pleading but answer".7 The judge noted that the Rules of Court apply
suppletorily in Amparo cases.8 He opined that the Revised Rules of Summary Procedure applied and
thus required an Answer.9

Judge Pampilo proceeded to conduct a hearing on the main case on 7 March 2012. 10 Even without a
Return nor an Answer, he ordered the parties to file their respective memoranda within five (5)
working days after that hearing. Since the period to file an Answer had not yet lapsed by then, the
judge also decided that the memorandum of De Lima, et al. would be filed in lieu of their Answer.11

On 20 March 2012, the RTC rendered a "Decision" granting the issuance of the Writ of Amparo. The
RTC also granted the interim reliefs prayed for, namely: temporary protection, production and
inspection orders. The production and inspection orders were in relation to the evidence and reports
involving an on-going investigation of the attempted assassination of Deputy Director Esmeralda. It
is not clear from the records how these pieces of evidence may be related to the alleged threat to
the life, liberty or security of the respondent Gatdula.

In an Order dated 8 October 2012, the RTC denied the Motion for Reconsideration dated 23 March
2012 filed by De Lima, et al.

Petitioners Sec. De Lima, et al. thus came to this Court assailing the RTC "Decision" dated 20 March
2012 through a Petition for Review on Certiorari (With Very Urgent Application for the Issuance of a
Temporary Restraining Order/Writ of Preliminary Injunction) via Rule 45, as enunciated in Section 19
of the Rule on the Writ of Amparo (A.M. No. 07-9- 12-SC, 25 September 2007), viz:

SEC. 19. Appeal. Any party may appeal from the final judgment or order to the Supreme Court
under Rule 45. The appeal may raise questions of fact or law or both. x x x (Emphasis supplied).
It is the Courts view that the "Decision" dated 20 March 2012 granting the writ of Amparo is not the
judgment or final order contemplated under this rule. Hence, a Petition for Review under Rule 45
may not yet be the proper remedy at this time.

The RTC and the Parties must understand the nature of the remedy of Amparo to put its procedures
in the proper context.

The remedy of the Writ of Amparo is an equitable and extraordinary remedy to safeguard the right of
the people to life, liberty12 and security13 as enshrined in the 1987 Constitution.14 The Rule on the Writ
of Amparo was issued as an exercise of the Supreme Court's power to promulgate rules concerning
the protection and enforcement of constitutional rights.15 It aims to address concerns such as, among
others, extrajudicial killings and enforced disappearances. 16

Due to the delicate and urgent nature of these controversies, the procedure was devised to afford
swift but decisive relief.17 It is initiated through a petition18 to be filed in a Regional Trial Court,
Sandiganbayan, the Court of Appeals, or the Supreme Court. 19 The judge or justice then makes an
"immediate" evaluation20 of the facts as alleged in the petition and the affidavits submitted "with the
attendant circumstances detailed".21 After evaluation, the judge has the option to issue the
Writ of Amparo22 or immediately dismiss the case. Dismissal is proper if the petition and the
supporting affidavits do not show that the petitioner's right to life, liberty or security is under threat or
the acts complained of are not unlawful. On the other hand, the issuance of the writ itself sets in
motion presumptive judicial protection for the petitioner. The court compels the respondents to
appear before a court of law to show whether the grounds for more permanent protection and interim
reliefs are necessary.

The respondents are required to file a Return23 after the issuance of the writ through the clerk of
court. The Return serves as the responsive pleading to the petition. 24 Unlike an Answer, the Return
has other purposes aside from identifying the issues in the case. Respondents are also required to
detail the actions they had taken to determine the fate or whereabouts of the aggrieved party.

If the respondents are public officials or employees, they are also required to state the actions they
had taken to: (i) verify the identity of the aggrieved party; (ii) recover and preserve evidence related
to the death or disappearance of the person identified in the petition; (iii) identify witnesses and
obtain statements concerning the death or disappearance; (iv) determine the cause, manner,
location, and time of death or disappearance as well as any pattern or practice that may have
brought about the death or disappearance; and (vi) bring the suspected offenders before a
competent court.25 Clearly these matters are important to the judge so that s/he can calibrate the
means and methods that will be required to further the protections, if any, that will be due to the
petitioner.

There will be a summary hearing26 only after the Return is filed to determine the merits of the
petition and whether interim reliefs are warranted. If the Return is not filed, the hearing will be
done ex parte.27 After the hearing, the court will render the judgment within ten (10) days from the
time the petition is submitted for decision.28

If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ
and such reliefs as may be proper and appropriate. 29 The judgment should contain measures which
the judge views as essential for the continued protection of the petitioner in the Amparo case. These
measures must be detailed enough so that the judge may be able to verify and monitor the actions
taken by the respondents. It is this judgment that could be subject to appeal to the Supreme Court
via Rule 45.30 After the measures have served their purpose, the judgment will be satisfied.
In Amparo cases, this is when the threats to the petitioners life, liberty and security cease to exist as
evaluated by the court that renders the judgment. Parenthetically, the case may also be terminated
through consolidation should a subsequent case be filed either criminal or civil. 31 Until the full
satisfaction of the judgment, the extraordinary remedy of Amparo allows vigilant judicial monitoring
to ensure the protection of constitutional rights.

The "Decision" dated 20 March 2012 assailed by the petitioners could not be the judgment or final
order that is appealable under Section 19 of the Rule on the Writ of Amparo. This is clear from the
tenor of the dispositive portion of the "Decision", to wit:

The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the Writ of Amparo.

Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the service of the Writ
of Amparo in an expeditious manner upon all concerned, and for this purpose may call upon the
assistance of any military or civilian agency of the government.

This "Decision" pertained to the issuance of the writ under Section 6 of the Rule on the Writ
of Amparo, not the judgment under Section 18. The "Decision" is thus an interlocutory order, as
suggested by the fact that temporary protection, production and inspection orders were given
together with the decision. The temporary protection, production and inspection orders are interim
reliefs that may be granted by the court upon filing of the petition but before final judgment is
rendered.32

The confusion of the parties arose due to the procedural irregularities in the RTC.

First, the insistence on filing of an Answer was inappropriate. It is the Return that serves as the
responsive pleading for petitions for the issuance of Writs of Amparo. The requirement to file an
Answer is contrary to the intention of the Court to provide a speedy remedy to those whose right to
life, liberty and security are violated or are threatened to be violated. In utter disregard of the Rule on
the Writ of Amparo, Judge Pampilo insisted on issuing summons and requiring an Answer.

Judge Pampilos basis for requiring an Answer was mentioned in his Order dated 2 March 2012:

Under Section 25 of the same rule [on the Writ of Amparo], the Rules of Court shall apply
suppletorily insofar as it is not inconsistent with the said rule.

Considering the summary nature of the petition, Section 5 of the Revised Rules of Summary
Procedure shall apply.

Section 5. Answer Within ten (10) days from service of summons, the defendant shall file his
Answer to the complaint and serve a copy thereof on the plaintiff. x x x

WHEREFORE, based on the foregoing, the respondents are required to file their Answer ten (days)
from receipt of this Order.33

The 1991 Revised Rules of Summary Procedure is a special rule that the Court has devised for the
following circumstances:
SECTION 1. Scope. This rule shall govern the summary procedure in the Metropolitan Trial Courts,
the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts
in the following cases falling within their jurisdiction:

A. Civil Cases:

(1) All cases of forcible entry and unlawful detainer, x x x.

(2) All other cases, except probate proceedings, where the total amount of the
plaintiffs claim does not exceed x x x.

B. Criminal Cases:

(1) Violations of traffic laws, rules and regulations;

(2) Violations of the rental law;

(3) Violations of municipal or city ordinances;

(4) All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six months, or a fine not exceeding one
thousand pesos (P1,000.00), or both, x x x.

xxxx

It is clear from this rule that this type of summary procedure only applies to MTC/MTCC/MCTCs. It is
mind-boggling how this rule could possibly apply to proceedings in an RTC. Aside from that, this
Court limited the application of summary procedure to certain civil and criminal cases. A writ
of Amparo is a special proceeding. It is a remedy by which a party seeks to establish a status, a
right or particular fact.34 It is not a civil nor a criminal action, hence, the application of the Revised
Rule on Summary Procedure is seriously misplaced.

The second irregularity was the holding of a hearing on the main case prior to the issuance of the
writ and the filing of a Return. Without a Return, the issues could not have been properly joined.

Worse, is the trial courts third irregularity: it required a memorandum in lieu of a responsive pleading
(Answer) of De Lima, et al.

The Return in Amparo cases allows the respondents to frame the issues subject to a hearing.
Hence, it should be done prior to the hearing, not after. A memorandum, on the other hand, is a
synthesis of the claims of the party litigants and is a final pleading usually required before the case is
submitted for decision. One cannot substitute for the other since these submissions have different
functions in facilitating the suit.

More importantly, a memorandum is a prohibited pleading under the Rule on the Writ of Amparo.35

The fourth irregularity was in the "Decision" dated 20 March 2012 itself. In the body of its decision,
the RTC stated:
"Accordingly this court GRANTS the privilege of the writ and the interim reliefs prayed for by the
petitioner." (Emphasis supplied).

This gives the impression that the decision was the judgment since the phraseology is similar to
Section 18 of the Rule on the Writ of Amparo:

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

The privilege of the Writ of Amparo should be distinguished from the actual order called the Writ
of Amparo. The privilege includes availment of the entire procedure outlined in A.M. No. 07-9-12-SC,
the Rule on the Writ of Amparo. After examining the petition and its attached affidavits, the Return
and the evidence presented in the summary hearing, the judgment should detail the required acts
from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the
petitioner's life, liberty or security.

A judgment which simply grants "the privilege of the writ" cannot be executed. It is tantamount to a
1wphi1

failure of the judge to intervene and grant judicial succor to the petitioner. Petitions filed to avail of
the privilege of the Writ of Amparo arise out of very real and concrete circumstances. Judicial
responses cannot be as tragically symbolic or ritualistic as "granting the privilege of the Writ
of Amparo."

The procedural irregularities in the RTC affected the mode of appeal that petitioners used in
elevating the matter to this Court.

It is the responsibility of counsels for the parties to raise issues using the proper procedure at the
right time. Procedural rules are meant to assist the parties and courts efficiently deal with the
substantive issues pertaining to a case. When it is the judge himself who disregards the rules of
procedure, delay and confusion result.

The Petition for Review is not the proper remedy to assail the interlocutory order denominated
as "Decision" dated 20 March 2012. A Petition for Certiorari, on the other hand, is
prohibited.36 Simply dismissing the present petition, however, will cause grave injustice to the parties
involved. It undermines the salutary purposes for which the Rule on the Writ of Amparo were
promulgated.

In many instances, the Court adopted a policy of liberally construing its rules in order to promote a
just, speedy and inexpensive disposition of every action and proceeding. 37 The rules can be
suspended on the following grounds: (1) matters of life, liberty, honor or property, (2) the existence of
special or compelling circumstances, (3) the merits of the case, (4) a cause not entirely attributable
to the fault or negligence of the party favored by the suspension of the rules, (5) a lack of any
showing that the review sought is merely frivolous and dilatory, and (6) the other party will not be
unjustly prejudiced thereby.38

WHEREFORE, in the interest of justice, as a prophylactic to the irregularities committed by the trial
court judge, and by virtue of its powers under Article VIII, Section 5 (5) of the Constitution, the
Court RESOLVES to:
 (1) NULLIFY all orders that are subject of this Resolution issued by Judge Silvino T. Pampilo,
Jr. after respondent Gatdula filed the Petition for the Issuance of a Writ of Amparo;

(2) DIRECT Judge Pampilo to determine within forty-eight (48) hours from his receipt of
this Resolution whether the issuance of the Writ of Amparo is proper on the basis of the
petition and its attached affidavits.

The Clerk of Court is DIRECTED to cause the personal service of this Resolution on Judge Silvino T.
Pampilo, Jr. of Branch 26 of the Regional Trial Court of Manila for his proper guidance together with
a WARNING that further deviation or improvisation from the procedure set in A.M. No. 07-9-12-SC
shall be meted with severe consequences.

SO ORDERED.

XVI.7 VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, and Section 19 of the Rule on the Writ of Amparo seeking to set aside the August 17,
1 2

2010 and September 6, 2010 Orders of the Regional Trial Court (RTC), Branch 106 of Quezon City,
3 4

in Sp. Proc. Case No. Q-10-67604. The RTC had dismissed petitioners petition for the issuance ofa
writ of amparo which petitioner filed in order for her to regain parental authority and custody of Julian
Yusay Caram (Baby Julian), her biological child, from the respondent officers of the Department of
Social Welfare and Development (DSWD). The factual antecedents as gleaned from the records
follow:

Petitioner Ma. Christina Yusay Caram(Christina) had an amorous relationship with Marcelino Gicano
Constantino III (Marcelino) and eventually became pregnant with the latters child without the benefit
of marriage. After getting pregnant, Christina mislead Marcelino into believing that she had an
abortion when in fact she proceeded to complete the term of her pregnancy. During this time, she
intended to have the child adopted through Sun and Moon Home for Children (Sun and Moon) in
Paraaque City to avoid placing her family ina potentially embarrassing situation for having a second
illegitimate son. 5

On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez Memorial MedicalCenter,
Marikina City. Sun and Moon shouldered all the hospital and medical expenses. On August 13, 2009,
6

Christina voluntarily surrendered Baby Julian by way of a Deed of Voluntary Commitment to the7

DSWD.

On November 26, 2009, Marcelino suffered a heart attack and died without knowing about the birth
8

of his son. Thereafter, during the wake, Christina disclosed to Marcelinos family that she and the
deceased had a son that she gave up for adoption due to financial distress and initial
embarrassment. Marcelinos family was taken aback by the revelation and sympathized with
Christina. After the emotional revelation, they vowed to help her recover and raise the baby. On 9

November 27, 2009, the DSWD, through Secretary Esperanza I. Cabral issued a
certificate declaring Baby Julian as "Legally Available for Adoption." A local matching conference
10

was held on January 27, 2010 and on February 5, 2010, Baby Julian was "matched" with the
spouses Vergel and Filomina Medina (Medina Spouses) of the Kaisahang Bahay Foundation.
Supervised trial custody then commenced. 11
On May 5, 2010, Christina who had changed her mind about the adoption, wrote a letter to the
DSWDasking for the suspension of Baby Julians adoption proceedings. She alsosaid she wanted
her family back together. 12

On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a Memorandum to 13

DSWD Assistant Secretary Vilma B. Cabrera informing her that the certificate declaring Baby Julian
legally available for adoption had attained finality on November 13, 2009, or three months after
Christina signed the Deed of Voluntary Commitment which terminated her parental authority and
effectively made Baby Julian a ward of the State. The said Memorandum was noted by respondent
Atty. Sally D. Escutin, Director IV of the Legal Service, DSWD.

On July 12, 2010, Noel Gicano Constantino, Marcelinos brother, sent a letter to Atty. Escutin
informing her that a DNA testing was scheduled on July 16, 2010 at the DNA Analysis Laboratory at
the University of the Philippines.14

On July 16, 2010, Assistant Secretary Cabrera sent a letter to Noel Constantino stating that it would
15

not allow Baby Julian to undergo DNA testing. Assistant Secretary Cabrera informed Noel
Constantino that the procedures followed relative to the certification on the availability of the child for
adoption and the childs subsequent placement to prospective adoptive parents were proper, and
that the DSWD was no longer in the position to stop the adoption process. Assistant Secretary
Cabrera further stated that should Christina wish to reacquire her parental authority over Baby Julian
or halt the adoption process, she may bring the matter to the regular courts as the reglementary
period for her to regain her parental rights had already lapsed under Section 7 of Republic Act (R.A.)
No. 9523. 16

On July 27, 2010, Christina filed a petition for the issuance of a writ of amparo before the RTC of
17

Quezon City seeking to obtain custody of Baby Julian from Atty. Segui, Atty. Escutin, Assistant
Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the DSWD.

In her petition, Christina accused respondents of "blackmailing" her into surrendering custody of her
childto the DSWD utilizing what she claims to be an invalid certificate of availability for adoption
which respondents allegedly used as basis to misrepresent that all legal requisites for adoption of
the minor child had been complied with.

Christina argued that by making these misrepresentations, the respondents had acted beyond the
scope of their legal authority thereby causing the enforced disappearance of the said child and
depriving her of her custodial rights and parental authority over him.

On the basis of the said petition,the RTC, Branch 106 of Quezon City, through its Presiding Judge,
the Honorable Angelene Mary W. Quimpo-Sale, issued a Writ of Amparo on July 28, 2010
18

commanding the four respondents to produce the body of Baby Julian at a hearing scheduled on
August 4, 2010. Respondents were alsorequired to file their verified written return to the writ
pursuant to Section 9 of the Amparo Rule, within five working days from the service of the writ.
19

The respondents complied with the writ and filed their Return on August 2, 2010 praying that the
20

petition be denied for being the improper remedy to avail of in a case relating toa biological parents
custodial rights over her child.
On August 4, 2010, respondents appeared before the RTC but respondents did not bring the child,
stating that threats of kidnapping were made on the child and his caregivers. To give respondents
another chance, the RTC reset the hearing to August 5, 2010.

At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) entered its appearance as
representative of the State and prayed that its lawyers be given time to file their memorandum or
position paper in this case. In turn, the RTC acknowledged the appearance of the OSG and allowed
its representatives to actively participate in the arguments raised during the said hearing. Relative to
the matter of the parties submitting additional pleadings, Judge Sale narrowed the issues to be
discussed by providing for the following guidelines, thus:

To abbreviate the proceedings, in view of all the manifestations and counter-manifestations made by
the counsels, the court enjoined the parties to file their respective position papers on the following
issues:

1. Whether or not this court has jurisdiction over the instant case;

2. Whether or not this petition isthe proper remedy based on the facts of the case and prayer in the
petition; and

3. Whether or not the prayer in the petition should be granted and custody of the child be given to his
biological mother.

The parties were given five (5) days from today to file their respective position papers based on
these three main issues. They may include other related issues they deem essential for the
resolution of this case. Set this case for further hearing, if necessary, on August 18, 2010 at 9:00
a.m.21

In the same order, Judge Sale alsoacknowledged that the child subject of the case was brought
before the court and the petitioner was allowed to see him and take photographs of him.

On August 17, 2010, the RTC dismissed the petition for issuance of a writ of amparo without
prejudice to the filing of the appropriate action in court. The RTC held that Christina availed of the
wrong remedy to regain custody of her child Baby Julian. The RTC further stated that Christina
22

should have filed a civil case for custody of her child as laid down in the Family Code and the Rule
on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. If there is
extreme urgency to secure custody of a minor who has been illegallydetained by another, a petition
for the issuance of a writ of habeas corpus may be availed of, either as a principal or ancillary
remedy, pursuant to the Rule on Custody of Minors and Writ of Habeas Corpus inRelation to
Custody of Minors. 23

On August 20, 2010, Christina filed a motion for reconsideration arguing that since the RTC
24

assumed jurisdiction of the petition for the issuance of a writ of amparo, the latter is duty-bound to
dispose the case on the merits. The RTC, however, deniedChristinas motion for reconsideration on
25

September 6, 2010 maintaining that the latter availed of the wrong remedy and that the Supreme
Court intended the writ of amparo to address the problem of extrajudicial killings and enforced
disappearances. 26
On September 28, 2010, Christina directly elevated the case before this Court, via a petition for
review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, in relation to
Section 19 of the Rule on the Writ of Amparo. In her petition, Christina prayed that the Court (1) set
aside the August 17, 2010 and September 6, 2010 Orders of the RTC, (2) declare R.A. No. 9523
unconstitutional for being contrary to A.M. No. 02-6-02-SC, which was promulgated by the Supreme
27

Court, and for violating the doctrine of separation of powers, (3) declare the "enforced separation"
between her and Baby Julian as violative of her rights to life, liberty and security, and (4) grant her
the privilege of availing the benefits of a writ of amparo so she could be reunited with her son. 28

The only relevant issue presented before the Court worthy of attention is whether a petition for a writ
of amparo is the proper recourse for obtaining parental authority and custody of a minor child. This
Court will not belabor to discuss Christinas argumentsrelating to the supposedunconstitutionality or
R.A. No. 9523 as Congress has the plenary power to repeal, alter and modify existing laws and 29

A.M. No. 02-6-02-SC functions only as a means to enforce the provisions of all adoption and
adoption-related statutes before the courts.

Now, in her petition, Christina argues that the life, liberty and security of Baby Julian is being violated
or threatened by the respondent DSWD officers enforcement of an illegal Deed of Voluntary
Commitment between her and Sun and Moon. She claims thatshe had been "blackmailed" through
the said Deed by the DSWD officers and Sun and Moons representatives into surrendering her child
thereby causing the "forced separation" of the said infant from his mother. Furthermore, she also
reiterates that the respondent DSWD officers acted beyond the scope of their authority when they
deprived her of Baby Julians custody. 30

The Court rejects petitioners contentions and denies the petition.

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

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

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

In the landmark case of Secretary of National Defense, et al. v. Manalo, et al., this Court held:
31

[T]he AmparoRule was intended to address the intractable problem of "extralegal killings" and
"enforced disappearances," its coverage, in its present form, is confined to these two instances or to
threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without
legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groupsor private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation of liberty which places such persons
outside the protection of law.

This pronouncement on the coverage of the writ was further cemented in the latter case of Lozada,
Jr. v. Macapagal-Arroyo where this Court explicitly declared that as it stands, the writ of amparo is
32

confined only to cases of extrajudicial killings and enforced disappearances, or to threats thereof. As
to what constitutes "enforced disappearance," the Court in Navia v. Pardico enumerated the
33

elementsconstituting "enforced disappearances" as the term is statutorily defined in Section 3(g) of

R.A. No. 9851 to wit:
34

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

(b) that it be carried out by, or with the authorization, support or acquiescence of, the State
ora political organization;

(c) that it be followed by the State or political organizations refusal to acknowledge or give
information on the fate or whereabouts of the person subject of the amparopetition; and,

(d) that the intention for such refusal isto remove subject person from the protection of the
law for a prolonged period of time. 1wphi1

In this case, Christina alleged that the respondent DSWD officers caused her "enforced separation"
from Baby Julian and that their action amounted to an "enforced disappearance" within the context
of the Amparo rule. Contrary to her position, however, the respondent DSWD officers never
concealed Baby Julian's whereabouts. In fact, Christina obtained a copy of the DSWD's May 28,
2010 Memorandum explicitly stating that Baby Julian was in the custody of the Medina Spouses
35

when she filed her petition before the RTC. Besides, she even admitted in her petition for review on
certiorari that the respondent DSWD officers presented Baby Julian before the RTC during the
hearing held in the afternoon of August 5, 2010. There is therefore, no "enforced disappearance" as
36

used in the context of the Amparo rule as the third and fourth elements are missing.

Christina's directly accusing the respondents of forcibly separating her from her child and placing the
latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the
child for adoption, clearly indicates that she is not searching for a lost child but asserting her parental
authority over the child and contesting custody over him. Since it is extant from the pleadings filed
37

that what is involved is the issue of child custody and the exercise of parental rights over a child,
who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule
cannot be properly applied.

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

WHEREFORE, the petition is DENIED. The August 17, 2010 and September 6, 2010 Orders of the
Regional Trial Court, Branch 106, Quezon City in Sp. Proc. Case No. Q-10-67604 are AFFIRMED
without prejudice to petitioner's right to avail of proper legal remedies afforded to her by law and
related rules.

No costs.

SO ORDERED.

XVI.8 PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Resolutions dated August 6, 20122 and January 7,
20133 of the Regional Trial Court of Quezon City4 (RTC) in SP No. Q-12-71275, which (a) dismissed the
petition for writ of amparo filed by petitioners-spouses Rozelle Raymond Martin "Raymart" (Raymart) and
Claudine Margaret Santiago (Claudine; collectively, petitioners) and (b) dissolved the temporary protection
order (TPO) previously issued therein.

The Facts

At around 11:40 in the morning of May 6, 2012, petitioners arrived at the Ninoy Aquino International Airport
Terminal 3 (NAIA 3) aboard a Cebu Pacific Airline flight from a vacation with their family and friends. They
waited for the arrival of their baggage but were eventually informed that it was offloaded and transferred to
a different flight. Aggrieved, petitioners lodged a complaint before the Cebu Pacific complaint desk. As they
were complaining, they noticed a man taking photos of Claudine with his cellular phone. Ray mart
approached the man and asked what he was doing. Suddenly, the man, later identified as Ramon "Mon"
Tulfo (Mon), allegedly punched and kicked Raymart, forcing the latter to fight back. When Claudine saw the
commotion, she approached Mon and the latter likewise allegedly kicked and pushed her back against the
counter. At that instance, Raymart rushed to defend his wife, while one Edoardo Benjamin Atilano (Atilano)
joined in the brawl. Immediately thereafter, several airport security personnel came to stop the altercation
and brought them to the Airport Police Department for investigation. 5

Days after the incident, respondents Raffy, Ben, and Erwin Tulfo (respondents), brothers of Mon, aired on
their TV program comments and expletives against petitioners, and threatened that they will
retaliate.6 Terrified by the gravity of the threats hurled, petitioners filed a petition for the issuance of a writ
of amparo against respondents on May 11, 2012 before the RTC. 7

On May 23, 2012, Erwin Tulfo filed a Manifestation and Motion to Deny Issuance of Protection Order and/or
Dismissal of the Petition Motu Proprio8 (May 23, 2012 Motion) which was opposed by petitioners for being a
prohibited pleading.9

On May 24, 2012, then Presiding Judge Bayani Vargas (JudgeVargas) issued a Resolution 10 granting a TPO in
favor of petitioners and directed respondents to file their return/answer.11

In his return/answer,12 Ben Tulfo claimed that the statements he uttered did not involve any actual threat
and that he merely expressed his strong sentiments to defend his brother.13

On June 29, 2012, Judge Vargas submitted the case for resolution but eventually retired on July 11, 2012.
Consequently, Judge Maria Filomena Singh (Judge Singh) was designated as the Acting Presiding Judge who
assumed office and handled the present case.14

The RTC Ruling

In a Resolution15 dated August 6, 2012, the RTC, through Judge Singh, dismissed the petition and ordered
the dissolution of the TPO.16 It held that the petition is not a proper subject of a writ of amparo since the
rules were intended to apply solely to cases of extralegal killings and enforced disappearances, noting that
the purpose of the law is to, among others, ascertain the whereabouts of an aggrieved party, recover
evidence related to the death or disappearance of the person identified in the petition, and determine the
facts surrounding the death or disappearance of a missing person. Consequently, it held that it did not have
the authority to issue said writ in favor of petitioners. In this relation, it explained that while it is true that
the May 23, 2012 Motion was a motion to dismiss and as such, a prohibited pleading under the rules, it still
had the discretion to dismiss the case when in its own determination the case is not covered by the same
rule. It expressed that the prohibition against motions to dismiss was meant to expedite the proceedings;
thus, in line with the same objective, it has the primary duty to so declare if it cannot grant the remedy at
the outset so as not to waste the time and resources of the litigants and the courts, both in a moot and
academic exercise.17

Petitioners filed a motion for reconsideration,18 which was, however, denied for lack of merit in a
Resolution19 dated January 7, 2013; hence, this petition.

The Issue Before the Court

The essential issue in this case is whether or not the RTC's dismissal of petitioners' amparo petition was
correct.
Petitioners argue that the issuance of a writ of amparo is not limited to cases of extrajudicial killings,
enforced disappearances, or threats thereof.20 They submit that they need not undergo the human rights
abuses such as extrajudicial killings or enforced disappearances, as is common to landmark decisions on
military and police abuses, before their right to life, liberty, and security may be protected by a writ
of amparo.21 Further, they insist that the May 23, 2012 Motion was a prohibited pleading and, hence, should
not have been allowed.22

The Court's Ruling

The petition is bereft of merit.

In the landmark case of Secretary of National Defense v. Manalo (Manalo),23 the Court has already explained
that the writ of amparo, under its present procedural formulation, namely, A.M. No. 07-9-12-SC, 24 otherwise
known as "The Rule on the Writ of Amparo," was intended to address and, thus, is presently confined to
cases involving extralegal killings and/or enforced disappearances, or threats thereof:

As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and
"enforced disappearances," its coverage, in its present form, is confined to these two instances
or to threats thereof, x x x. (Emphasis and underscoring supplied) ChanRoblesVirtualawlibrary

Indeed, while amparo (which literally means "protection" in Spanish) has been regarded as a special remedy
provided for the enforcement of constitutional rights, the parameters of protection are not the same in every
jurisdiction. In Manalo, the origins of amparo were discussed as follows:

The writ of amparo originated in Mexico. "Amparo" literally means "protection" in Spanish. In 1837, de
Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its description of
the practice of judicial review in the U.S. appealed to many Mexican jurists. One of them, Manuel Crescencio
Rejon, drafted a constitutional provision for his native state, Yucatan, which granted judges the power to
protect all persons in the enjoyment of their constitutional and legal rights. This idea was incorporated into
the national constitution in 1847, viz:chanRoblesvirtualLa wlibrary

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. ChanRoblesVirtualawlibrary

Since then, the protection has been an important part of Mexican constitutionalism. If, after hearing, the
judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the
official's superiors, to cease the violation and to take the necessary measures to restore the petitioner to the
full enjoyment of the right in question. Amparo thus combines the principles of judicial review derived from
the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in
Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but
prevents them from using this power to make law for the entire nation.

The writ of amparo then spread throughout the Western Hemisphere, gradually evolving into various forms,
in response to the particular needs of each country. It became, in the words of a justice of the Mexican
Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the world's legal heritage
that institution which, as a shield of human dignity, her own painful history conceived." What began as a
protection against acts or omissions of public authorities in violation of constitutional rights later evolved for
several purposes: (1) amparo libertad for the protection of personal freedom, equivalent to the habeas
corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo
casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo
administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of
peasants" rights derived from the agrarian reform process.

In Latin American countries, except Cuba, the writ of amparo has been constitutionally adopted to protect
against human rights abuses especially committed in countries under military juntas. In general, these
countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including
socio-economic rights. Other countries like Colombia, Chile, Germany and Spain, however, have chosen to
limit the protection of the writ of amparo only to some constitutional guarantees or fundamental rights. 26
In our jurisdiction, the contextual genesis, at least, for the present Amparo Rule has limited the remedy as a
response to extrajudicial killings and enforced disappearances, or threats thereof. "Extrajudicial killings,"
according to case law, are generally characterized as "killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings,"27 while "enforced disappearances," according to Section
3 (g) of Republic Act No. 9851,28 otherwise known as the "Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity," "means the arrest, detention, or
abduction of persons by, or with the authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the
fate or whereabouts of those persons, with the intention of removing from the protection of the law for a
prolonged period of time." In Navia v. Pardico,29 the Court held that it must be shown and proved by
substantial evidence that the disappearance was carried out by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give
information on the fate or whereabouts of said missing persons, with the intention of removing them from
the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has
the burden of proving by substantial evidence the indispensable element of government
participation.30 Notably, the same requirement of government participation should also apply to extralegal
killings, considering that the writ of amparo was, according to then Chief Justice Reynato S. Puno, who
headed the Committee on the Revision of the Rules of Court that drafted A.M. No. 07-9-12-SC, intended to
"hold public authorities, those who took their oath to defend the constitution and enforce our laws, to a
high standard of official conduct and hold them accountable to our people. [In this light] [t]he sovereign
Filipino people should be assured that if their right[s] to life and liberty are threatened or violated, they will
find vindication in our courts of justice."31 Stated differently, the writ of amparo is an extraordinary remedy
that is meant to balance out the government's incredible power in order to curtail human rights abuses on
its end.

Consistent therewith, the delimitation of our current writ of amparo to extralegal killings and/or enforced
disappearances, or threats thereof, is explicit from Section 1 of A.M. No. 07-9-12-SC, which reads:

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

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

While the foregoing rule, as per Section 1 of A.M. No. 07-9-12-SC's first paragraph, does state that the writ
is a remedy to protect the right to life, liberty, and security of the person desiring to avail of it, the same
section's second paragraph qualifies that the protection of such rights specifically pertain to extralegal
killings and enforced disappearances or threats thereof, which are more concrete cases that involve
protection to the rights to life, liberty and security. The two paragraphs should indeed be read together in
order to construe the meaning of the provision. Clearly applicable is the statutory construction rule that
"clauses and phrases must not be taken as detached and isolated expressions, but the whole and every part
thereof must be considered in fixing the meaning of any of its parts in order to produce a harmonious whole.
Every part of the statute [or, in this case, procedural rule] must be interpreted with reference to the
context, i.e., that every part of the statute must be considered together with other parts of the statute and
kept subservient to the general intent of the whole enactment." 32

In this case, it is undisputed that petitioners' amparo petition before the RTC does not allege any case of
extrajudicial killing and/or enforced disappearance, or any threats thereof, in the senses above-described.
Their petition is merely anchored on a broad invocation of respondents' purported violation of their right to
life and security, carried out by private individuals without any showing of direct or indirect government
participation. Thus, it is apparent that their amparo petition falls outside the purview of A.M. No. 07-9-12-SC
and, perforce, must fail. Hence, the RTC, through Judge Singh, properly exercised its discretion to motu
proprio dismiss the same under this principal determination, regardless of the filing of the May 23, 2012
Motion. The court, indeed, has the discretion to determine whether or not it has the authority to grant the
relief in the first place. And when it is already apparent that the petition falls beyond the purview of the rule,
it has the duty to dismiss the petition so as not to prejudice any of the parties through prolonged but futile
litigation.

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

SO ORDERED. chanroblesvirtuallawlibrary

Fourteenth Congress
Third Regular Session

Begun and held in Metro Manila, on Monday, the twenty-seventh day of July, two thousand nine.

REPUBLIC ACT NO. 9851

AN ACT DEFINING AND PENALIZING CRIMES AGAINST INTERNATIONAL HUMANITARIAN

LAW, GENOCIDE AND OTHER CRIMES AGAINST HUMANITY, ORGANIZING JURISDICTION,
DESIGNATING SPECIAL COURTS, AND FOR RELATED PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

CHAPTER I
INTRODUCTORY PROVISIONS

Section 1. Short Title. - This Act shall be known as the "Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity".

Section 2. Declaration of Principles and State Policies. -

(a) The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to a policy
of peace, equality, justice, freedom, cooperation and amity with all nations.

(b) The state values the dignity of every human person and guarantees full respect for
human rights, including the rights of indigenous cultural communities and other vulnerable
groups, such as women and children;

(c) It shall be the responsibility of the State and all other sectors concerned to resolved
armed conflict in order to promote the goal of "Children as Zones of Peace";

(d) The state adopts the generally accepted principles of international law, including the
Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and
international humanitarian law, as part of the law our nation;

(e) The most serious crimes of concern to the international community as a whole must not
go unpunished and their effective prosecution must be ensured by taking measures at the
national level, in order to put an end to impunity for the perpetrators of these crimes and thus
contribute to the prevention of such crimes, it being the duty of every State to exercise its
criminal jurisdiction over those responsible for international crimes;
 (f) The State shall guarantee persons suspected or accused of having committed grave
crimes under international law all rights necessary to ensure that their trial will be fair and
prompt in strict accordance with national and international law and standards for fair trial, It
shall also protect victims, witnesses and their families, and provide appropriate redress to
victims and their families, It shall ensure that the legal systems in place provide accessible
and gender-sensitive avenues of redress for victims of armed conflict, and

(g)The State recognizes that the application of the provisions of this Act shall not affect the
legal status of the parties to a conflict, nor give an implied recognition of the status of
belligerency

CHAPTER II
DEFINITION OF TERMS

Section 3. For purposes of this Act, the term:

(a) "Apartheid' means inhumane acts committed in the context of an institutionalized regime
of systematic oppression and domination by one racial group or groups and committed with
the intention of maintaining that regime

(b) "Arbitrary deportation or forcible transfer of population" means forced displacement of the
persons concerned by expultion by expulsion or other coercive acts from the area in which
they are lawfully present, without grounds permitted under domestic or international law.

(c) "Armed conflict" means any use of force or armed violence between States or a
protracted armed violence between governmental authorities and organized armed groups or
between such groups within that State: Provided, That such force or armed violence gives
rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949,
including their common Article 3, apply. Armed conflict may be international, that is, between
two (2) or more States, including belligerent occupation; or non-international, that is,
between governmental authorities and organized armed groups or between such groups
within a state. It does not cover internal disturbances or tensions such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.

(d) "Armed forces" means all organized armed forces, groups and units that belong to a party
to an armed conflict which are under a command responsible to that party for the conduct of
its subordinates. Such armed forces shall be subject to an internal disciplinary system which
enforces compliance with International Humanitarian Law

(e) "Attack directed against any civilian population" means a course of conduct involving the
multiple commission of acts referred to in Section 6 of this Act against any civilian population,
pursuant to or in furtherance of a State or organizational policy to commit such attack.

(f) "Effective command and control" or " effective authority and control" means having the
material ability to prevent and punish the commission of offenses by subordinates.

(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
(h) "Enslavement" means the exercise of any or all of the powers attaching to the right of
ownership over a person and includes the exercise of such power in the course of trafficking
in persons, in particular women and children.

(i) "Extermination" means the international infliction of conditions of life, inter alia, the
deprivation of access to food and medicine, calculated to bring about the destruction of a
part of a population.

(j) " Forced pregnancy" means the unlawful confinement of a women to be forcibly made
pregnant, with the intent of affecting the ethnic composition of any population carrying out
other grave violations of international law.

(k) "Hors de Combat" means a person who:

(1) is in the power of an adverse party;

(2) has clearly expressed an intention to surrender; or

(3) has been rendered unconscious or otherwise incapacitated by wounds or

sickness and therefore is incapable of defending himself: Provided, that in any of
these cases, the person form any hostile act and does not attempt to escape.

(l) "Military necessity" means the necessity of employing measures which are indispensable
to achieve a legitimate aim of the conflict and are not otherwise prohibited by International
Humanitarian Law

(m) "Non-defended locality" means a locality that fulfills the following conditions:

(1) all combatants, as well as mobile weapons and mobile military equipment, must
have been evacuated;

(2) no hostile use of fixed military installations or establishments must have been
made;

(3) no acts of hostility must have been committed by the authorities or by the
population; and

(4) no activities in support of military operations, must have been undertaken.

(n) "No quarter will be given' means refusing to spare the life of anybody, even of persons
manifestly unable to defend themselves or who clearly express their intention to surrender.

(o) "Perfidy" means acts which invite the confidence of an adversary to lead him/her to
believe he/she is entitled to, or is obliged to accord, protection under the rules of
International Humanitarian Law, with the intent to betray that confidence, including but not
limited to:

(1) feigning an intent to negotiate under a flag of truce;

(2) feigning surrender;

 (3) feigning incapacitation by wounds or sickness;

(4) feigning civilian or noncombatant status; and

(5) feigning protective status by use of signs, emblems or uniforms of the United
Nations or of a neutral or other State not party to the conflict.

(p) "Persecution" means the international and severe deprivation of fundamental rights
contrary to international law by reason of identity of the group or collectivity.

(q) "Protect person" in an armed conflict means:

(1) a person wounded, sick or shipwrecked, whether civilian or military;

(2) a prisoner of war or any person deprived of liberty for reasons related to an
armed conflict;

(3) a civilian or any person not taking a direct part or having ceased to take part in
the hostilities in the power of the adverse party;

(4) a person who, before the beginning of hostilities, was considered a stateless
person or refugee under the relevant international instruments accepted by the
parties to the conflict concerned or under the national legislation of the state of
refuge or state of residence;

(5) a member of the medical personnel assigned exclusively to medical purposes or

to the administration of medical units or to the operation of or administration of
medical transports; or

(6) a member of the religious personnel who is exclusively engaged in the work of
their ministry and attached to the armed forces of a party to the conflict, its medical
units or medical transports, or non-denominational, noncombatant military personnel
carrying out functions similar to religious personnel.

(r) " Superior" means:

(1) a military commander or a person effectively acting as a military commander; or

(2) any other superior, in as much as the crimes arose from activities within the
effective authority and control of that superior.

(s) "Torture" means the intentional infliction of severe pain or suffering, whether physical,
mental, or psychological, upon a person in the custody or under the control of the accused;
except that torture shall not include pain or suffering arising only from, inherent in or
incidental to, lawful sanctions.

(t) "Works and installations containing dangerous forces" means works and installations the
attack of which may cause the release of dangerous forces and consequent severe losses
among the civilian population, namely: dams, dikes, and nuclear, electrical generation
stations.
 CHAPTER III
CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW,
GENOCIDE AND OTHER CRIMES AGAINST HUMANITY

Section 4. War Crimes. - For the purpose of this Act, "war crimes" or "crimes against Interntional
Human Humanitarian Law" means:

(a) In case of an international armed conflict , grave breaches of the Geneva Conventions of
12 August 1949, namely, any of the following acts against persons or property protected
under provisions of the relevant Geneva Convention:

(1) Willful killing;

(2) Torture or inhuman treatment, including biological experiments;

(3) Willfully causing great suffering, or serious injury to body or health;

(4) Extensive destruction and appropriation of property not justified by military

necessity and carried out unlawfully and wantonly;

(5) Willfully depriving a prisoner of war or other protected person of the rights of fair
and regular trial;

(6) Arbitrary deportation or forcible transfer of population or unlawful confinement;

(7) Taking of hostages;

(8) Compelling a prisoner a prisoner of war or other protected person to serve in the
forces of a hostile power; and

(9) Unjustifiable delay in the repatriation of prisoners of war or other protected

persons.

(b) In case of a non-international armed conflict, serious violations of common Article 3 to the
four (4) Geneva Conventions of 12 August 1949, namely , any of the following acts
committed against persons taking no active part in the hostilities, including member of the
armed forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention or any other cause;

(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment
and torture;

(2) Committing outrages upon personal dignity, in particular, humiliating and

degrading treatment;

(3) Taking of hostages; and

(4) The passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all judicial
guarantees which are generally recognized as indispensable.
(c) Other serious violations of the laws and customs applicable in armed conflict, within the
established framework of international law, namely:

(1) Internationally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities;

(2) Intentionally directing attacks against civilian objects, that is, object which are not
military objectives;

(3) Intentionally directing attacks against buildings, material, medical units and
transport, and personnel using the distinctive emblems of the Geneva Conventions
or Additional Protocol III in conformity with intentional law;

(4) Intentionally directing attacks against personnel, installations, material, units or

vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as ling as they are entitled to the
protection given to civilians or civilian objects under the international law of armed
conflict;

(5) Launching an attack in the knowledge that such attack will cause incidental loss
of life or injury to civilians or damage to civilian objects or widespread, long-term and
severe damage to the natural environment which would be excessive in relation to
the concrete and direct military advantage anticipated;

(6) Launching an attack against works or installations containing dangerous forces in

the knowledge that such attack will cause excessive loss of life, injury to civilians or
damage to civilian objects, and causing death or serious injury to body or health .

(7) Attacking or bombarding, by whatever means, towns, villages, dwellings or

buildings which are undefended and which are not military objectives, or making non-
defended localities or demilitarized zones the object of attack;

(8) Killing or wounding a person in the knowledge that he/she is hors de

combat, including a combatant who, having laid down his/her arms or no longer
having means of defense, has surrendered at discretion;

(9) Making improper use of a flag of truce, of the flag or the military insignia and
uniform of the enemy or of the United Nations, as well as of the distinctive emblems
of the Geneva Conventions or other protective signs under International
Humanitarian Law, resulting in death, serious personal injury or capture;

(10) Intentionally directing attacks against buildings dedicated to religion, education,

art, science or charitable purposes, historic monuments, hospitals and places where
the sick and wounded are collected, provided they are not military objectives. In case
of doubt whether such building or place has been used to make an effective
contribution to military action, it shall be presumed not to be so used;

(11) Subjecting persons who are in the power of an adverse party to physical
mutilation or to medical or scientific experiments of any kind, or to removal of tissue
or organs for transplantation, which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his/her interest, and
which cause death to or seriously endanger the health of such person or persons;

(12) Killing, wounding or capturing an adversary by resort to perfidy;

(13) Declaring that no quarter will be given;

(14) Destroying or seizing the enemy's property unless such destruction or seizure is
imperatively demanded by the necessities of war;

(15) Pillaging a town or place, even when taken by assault;

(16) Ordering the displacements of the civilian population for reasons related to the
conflict, unless the security of the civilians involved or imperative military reasons so
demand;

(17) Transferring, directly or indirectly, by the occupying power of parts of its own
civilian population into the territory it occupies, or the deportation or transfer of all or
parts of the population of the occupied territory within or outside this territory;

(18) Commiting outrages upon personal dignity, in particular, humiliating and

degrading treatments;

(19) Commiting rape, sexual slavery, enforced prostitution, forced pregnancy,

enforced sterilization, or any other form of sexual violence also constituting a grave
breach of the Geneva Conventions or a serious violation of common Article 3 to the
Geneva Convensions;

(20) Utilizing the presence of a civilian or other protected person to render certain
points, areas or military forces immune from military operations;

(21) Intentionally using starvation of civilians as a method of warfare by depriving

them of objects indespensable to their survival, including willfully impeding relief
supplies as provided for under the Geneva Conventions and their Additional
Protocols;

(22) In an international armed conflict, compelling the nationals of the hostile party to
take part in the operations of war directed against their own country, even if they
were in the belligerent's service before the commencement of the war;

(23) In an international armed conflict, declaring abolished, suspended or

inadmissible in a court of law the rights and actions of the nationals of the hostile
party;

(24) Commiting any of the following acts:

(i) Conscripting, enlisting or recruiting children under the age of fifteen (15)
years into the national armed forces;

(ii) Conscripting, enlisting or recruiting children under the age of eighteen (18)
years into an armed force or group other than the national armed forces; and
 (iii) Using children under the age of eighteen (18) years to participate actively
in hostilities; and

(25) Employing means of warfare which are prohibited under international law, such
as:

(i) Poison or poisoned weapons;

(ii) Asphyxiating, poisonous or other gases, and all analogous liquids,

materials or devices;

(iii) Bullets which expand or flatten easily in the human body, such as bullets
with hard envelopes which do not entirely cover the core or are pierced with
incisions; and

(iv) Weapons, projectiles and material and methods of warfare which are of
the nature to cause superfluous injury or unecessary suffering or which are
inherently indiscriminate in violation of the international law of armed conflict.

Any person found guilty of commiting any of the acts specified herein shall suffer the penalty
provided under Section 7 of this Act.

Section 5. Genocide - (a) For the purpose of this Act, "genocide" means any of the following acts
with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other
similar stable and permanent group as such:

(1) Killing members of the group;

(2) Causing serious bodily or mental harm to members of the group;

(3) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

(4) Imposing measures intended to prevent births within the group; and

(5) Forcibly transferring children of the group to another group.

(b) It shall be unlawful for any person to directly and publicly incite others to commit
genocide.

Any person found guilty of committing any of the acts specified in paragraphs (a) and (b) of this
section shall suffer the penalty provided under Section 7 of this Act.

Section 6. Other Crimes Against Humanity. - For the purpose of this act, "other crimes against
humanity" means any of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack:

(a) Willful killing;

(b) Extermination;
 (c) Enslavement;

(d) Arbitrary deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental

rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in
this paragraph or any crime defined in this Act;

(i) Enforced or involuntary disappearance of persons;

(j) Apartheid; and

(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.

Any person found guilty of committing any of the acts specified herein shall suffer the penalty
provided under Section 7 of this Act.

CHAPTER IV
PENAL PROVISIONS

Section 7. Penalties. - Any person found guilty of committing any of the acts provided under
Sections 4, 5 and 6 of this Act shall suffer the penalty of reclusion temporal in its medium to
maximum period and a fine ranging from One hundred thousand pesos (Php 100,000.00) to Five
hundred thousand pesos (Php 500,000.00).

When justified by the extreme gravity of the crime, especially where the commision of any of the
crimes specified herein results in death or serious physical injury, or constitutes rape, and
considering the individual circumstances of the accused, the penalty of reclusion perpetua and a fine
ranging from Five hundred thousand pesos (Php 500,000.00) to One million pesos (Php
1,000,000.00) shall be imposed.

Any person found guilty of inciting others to commit genocide referred to in Section 5(b) of this Act
shall suffer the penalty of prision mayor in its minimum period and a fine ranging from Ten thousand
pesos (Php 10,000.00) to Twenty thousand pesos (Php 20,000.00).

In addition, the court shall order the forfeiture of proceeds, property and assets derived, directly or
indirectly, from that crime, without prejudice to the rights of bona fide third (3rd) parties. The court
shall also impose the corresponding accessory penalties under the Revised Penal Code, especially
where the offender is a public officer.
 CHAPTER V
SOME PRINCIPLES OF CRIMINAL LIABILITY

Section 8. Individual Criminal Responsibilities. - (a) In addition to existing provisions in Philippine

law on principles of criminal responsibility, a person shall be criminally liable as principal for a crime
defined and penalized in this Act if he/she:

(1) Commits such a crime, whether as an individual, jointly with another or through
another person, regardless of whether that other person is criminally responsible;

(2) Orders, solicits or induces the commission of such a crime which in fact occurs or
is attempted;

(3) In any other way contributes to the commission or attempted commission of such
a crime by a group of person acting with a common purpose. Such contribution shall
be intentional and shall either:

(i) be made with the aim of furthering the criminal activity or criminal purpose
of the group, where such activity or purpose involves the commission of a
crime defined in this Act; or

(ii) be made in the knowledge of the intention of the group to commit the
crime.

(b) A person shall be criminally liable as accomplice for facilitating the commission of a crime
defined and penalized in this Act if he/she aids, abets or otherwise assists in its commission
or attempted commission, including providing the means for its commission.

(c) A person shall be criminally liable for a crime defined and penalized in this Act if he/she
attempts to commit such a crime by taking action that commences its execution by means of
a substantial step, but the crime does not occur because of circumstances independent of
the person's intention. However, a person who abandons the effort to commit the crime or
otherwise prevents the completion of the crime shall not be liable for punishment under this
Act for the attempt to commit the same if he/she completely and voluntarily gave up the
criminal purpose.

Section 9. Irrelevance of Official Capacity. - This Act shall apply equally to all persons without any
distinction based on official capacity. In particular, official capacity as a head of state or government,
a member of a government or parliament, an elected representative or a government official shall in
no case exempt a person from criminal responsibility under this Act, nor shall it, in and of itself,
constitute a ground for reduction of sentence. However:

(a) Immunities or special procedural rules that may be attached to the official capacity of a
person under Philippine law other than the established constitutional immunity from suit of
the Philippine President during his/her tenure, shall not bar the court from exercising
jurisdiction over such a person; and

(b) Immunities that may be attached to the official capacity of a person under international
law may limit the application of this Act, nut only within the bounds established under
international law.
Section 10. Responsibility of Superiors. - In addition to other grounds of criminal responsibility for
crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal
for such crimes committed by subordinates under his/her effective command and control, or effective
authority and control as the case may be, as a result of his/her failure to properly exercise control
over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known
that the subordinates were committing or about to commit such crimes;

(b) That superior failed to take all necessary and reasonable measures within his/her power
to prevent or repress their commission or to submit the matter to the competent authorities
for investigation and prosecution.

Section 11. Non-prescription. - The crimes defined and penalized under this Act, their prosecution,
and the execution of sentences imposed on their account, shall not be subject to any prescription.

Section 12. Orders from a Superior. - The fact that a crime defined and penalized under this Act has
been committed by a person pursuant to an order of a government or a superior, whether military or
civilian, shall not relieve that person of criminal responsibility unless all of the following elements
occur:

(a) The person was under a legal obligation to obey orders of the government or the superior
in question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

For the purposes of this section, orders to commit genocide or other crimes against humanity are
manifestly unlawful.

CHAPTER VI
Protection of Victims and Witnesses

Section 13. Protection of Victims and Witnesses. - In addition to existing provisions in Philippine law
for the protection of victims and witnesses, the following measures shall be undertaken:

(a) The Philippine court shall take appropriate measures to protect the safety, physical and
physiological well-being, dignity and privacy of victims and witnesses. In so doing, the court
shall have regard of all relevant factors, including age, gender and health, and the nature of
the crime, in particular, but not limited to, where the crime involves sexual or gender violence
or violence against children. The prosecutor shall take such measures particularly during the
investigation and prosecution of such crimes. These measures shall not be prejudicial to or
inconsistent with the rights of the accused and to a fair and impartial trial;

(b) As an exception to the general principle of public hearings, the court may, to protect the
victims and witnesses or an accused, conduct any part of the proceedings in camera or allow
the presentation of evidence by electronic or other special means. In particular, such
measures shall be implemented in the case of the victim of sexual violence or a child who is
a victim or is a witness, unless otherwise ordered by the court, having regard to all the
circumstances, particularly the views of the victim or witness;
 (c) Where the personal interests of the victims are affected, the court shall permit their views
and concerns to be presented and considered at stages of the proceedings determined to be
appropriate by the court in manner which is not prejudicial to or inconsistent with the rights of
the accused and a fair and impartial trial. Such views and concerns may be presented by the
legal representatives of the victims where the court considers it appropriate in accordance
with the established rules of procedure and evidence; and

(d) Where the disclosure of evidence or information pursuant to this Act may lead to the
grave endangerment of the security of a witness for his/her family, the prosecution may, for
the purposes of any proceedings conducted prior to the commencement of the trial, withhold
such evidence or information and instead submit a summary thereof. Such measures shall
be exercised in a manner which is not prejudicial to or inconsistent with the rights of the
accused and to a fair and impartial trial.

Section 14. Reparations to Victims. - In addition to existing provisions in Philippine law and
procedural rules for reparations to victims, the following measures shall be undertaken:

(a) The court shall follow the principles relating to the reparations to, or in respect of,
victims,including restitution, compensation and rehabilitation. On this basis, in its decision,
the court may, wither upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to, or in respect of, victims
and state the principles on which it is acting;1avvphi1

(b) The court may make an order directly against a convicted person specifying appropriate
reparations to, or in respect of, victims, including restitution, compensation and rehabilitation;
and

(c) Before making an order under this section, the court may invite and shall take account of
representations from or on behalf of the convicted person, victims or other interested
persons.

Nothing in this section shall be interpreted as prejudicing the rights of victims under national or
international law.

CHAPTER VII
Applicability of International Law and Other Laws

Section 15. Applicability of International Law.- In the application and interpretation of this Act,
Philippine courts shall be guided by the following sources:

(a) The 1948 Genocide Convention;

(b) The 1949 Genava Conventions I-IV, their 1977 Additional Protocols I and II and their
2005 Additional Protocol III;

(c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict, its First Protocol and its 1999 Second Protocol;

(d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the
Involvement of Children in Armed Conflict;
 (e) The rules and principles of customary international law;

(f) The judicial decisions of international courts and tribunals;

(g) Relevant and applicable international human rights instruments;

(h) Other relevant international treaties and conventions ratified or acceded to by the
Republic of the Philippines; and

(i) Teachings of the most highly qualified publicists and authoritative commentaries on the
foregoing sources as subsidiary means for the determination of rules of international law.

Section 16. Suppletory Application of the Revised Penal Code and Other General or Special Laws. -
The provisions of the Revised Penal Code and other general or special laws shall have a suppletory
application to the provisions of this Act.

CHAPTER VII
JURISDICTION

Section 17. Jurisdiction.- The State shall exercise jurisdiction over persons, whether military or
civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the
crime is committed, provided, any one of the following conditions is met:

(a) The accused is a Filipino citizen;

(b) The accused, regardless of citizenship or residence, is present in the Philippines; or

(c) The accused has committed the said crime against a Filipino citizen.

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities
may surrender or extradite suspected or accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant to the applicable extradition laws and treaties.

No criminal proceedings shall be initiated against foreign nationals suspected or accused of having
committed the crimes defined and penalized in this Act if they have been tried by a competent court
outside the Philippines in respect of the same offense and acquitted, or having been convicted,
already served their sentence.

Section 18. Philippine Court, Prosecutors and Investigators. - The Regional Trial Court of the
Philippines shall have original and exclusive jurisdiction over the crimes punishable under this Act.
Their judgments may be appealed or elevated to the Court of Appeals and to the Supreme Court as
provided by law.

The Supreme Court shall designate special courts to try cases involving crimes punishable under
this Act. For these cases, the Commission on Human Rights, the Department of Justice, the
Philippine National Police or other concerned law enforcement agencies shall designate prosecutors
or investigators as the case may be.
The State shall ensure that judges, prosecutors and investigators, especially those designated for
purposes of this Act, receive effective training in human rights, International Humanitarian Law and
International Criminal Law.

CHAPTER IX
FINAL PROVISIONS

Section 19. Separability Clause. - If, for any reason or reasons, any part or provision of this Statute
shall be held to be unconstitutional or invalid, other parts or provisions hereof which are not affected
thereby shall continue to be in full force and effect.

Section 20. Repealing Clause. - All laws, presidential decrees and issuances, executive orders,
rules and regulations or parts thereof inconsistent with the provisions of this Statute are hereby
repealed or modified accordingly.

Section 21. Effectivity. - This Act shall take effect fifteen (15) days after its complete publication in
the Official Gazette or in two (2) newspapers general circulation.

Approved

XVII.1 PERALTA, J.:

For resolution of this Court is the Petition for Certiorari dated September 29, 2011 under Rule 65,
Section 1 of the Revised Rules of Civil Procedure which seeks to annul and set aside the
Confirmation of Sentence dated September 9, 2011, promulgated by the Office of the President.

The facts, as culled from the records, are the following:

On October 13, 2004, the Provost Martial General of the Armed Forces of the Philippines (AFP), Col.
Henry A. Galarpe, by command of Vice-Admiral De Los Reyes, issued a Restriction to
Quarters1 containing the following:

1. Pursuant to Article of War 70 and the directive of the Acting Chief of Staff, AFP to the
undersigned dtd 12 October 2004, you are hereby placed under Restriction to Quarters
under guard pending investigation of your case.

2. You are further advised that you are not allowed to leave your quarters without the
expressed permission from the Acting Chief of Staff, AFP.

3. In case you need immediate medical attention or required by the circumstance to be

confined in a hospital, you shall likewise be under guard.

Thereafter, a Charge Sheet dated October 27, 2004 was filed with the Special General Court Martial
NR 2 presided by Maj. Gen. Emmanuel R. Teodosio, AFP, (Ret.), enumerating the following
violations allegedly committed by petitioner:

CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR (CONDUCT UNBECOMING AN

OFFICER AND GENTLEMAN).
SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED
FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 16 March 2004,
knowingly, wrongfully and unlawfully fail to disclose/declare all his existing assets in his Sworn
Statement of Assets and Liabilities and Net Worth for the year 2003 as required by Republic Act No.
3019, as amended in relation to Republic Act 6713, such as the following: cash holdings with the
Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the amount of six million five
hundred [thousand] pesos (P6,500,000.00); cash dividend received from AFPSLAI from June 2003
to December 2003 in the amount of one million three hundred sixty-five thousand pesos
(P1,365,000.00); dollar peso deposits with Land Bank of the Philippines, Allied Banking Corporation,
Banco de Oro Universal Bank, Bank of Philippine Islands, United Coconut Planter's Bank and
Planter's Development Bank; motor vehicles registered under his and his wifes names such as 1998
Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota
Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC 134, 1997 Mitsubishi L-300
Van with Plate Nr. FDZ 582 and 2001 Toyota RAV 4 Utility Vehicle with Plate Nr. FEV-498, conduct
unbecoming an officer and gentleman.

SPECIFICATION 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED

FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 11 March 2003,
knowingly, wrongfully and unlawfully fail to disclose/declare all his existing assets in his Sworn
Statement of Assets and Liabilities and Net worth for the year 2002 as required by Republic Act No.
3019, as amended in relation to Republic Act 6713, such as the following: his cash holdings with the
Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the amount of six million five
hundred [thousand] pesos (P6,500,000.00); cash dividend received form AFPSLAI in June 2002 and
December 2002 in the total amount of one million four hundred thirty-five thousand pesos
(1,435,000.00), dollar and peso deposits with Land Bank of the Philippines, Allied Banking
Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planter's
Bank and Planter's Development Bank; motor vehicles registered under his and his wifes names
such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-
665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC-134, 1997
Mitsubishi L-300 Van with Plate Nr. FDZ-582, and 2001 Toyota RAV 4

Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an officer and gentleman.

SPECIFICATION 3: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED

FORCES OF THE PHILIPPINES, person subject to military law, did, while in the active military
service of the Armed Forces of the Philippines, knowingly, wrongfully and unlawfully violate his
solemn oath as a military officer to uphold the Constitution and serve the people with utmost loyalty
by acquiring and holding the status of an immigrant/permanent residence of the United

States of America in violation of the State policy governing public officers, thereby causing dishonor
and disrespect to the military professional and seriously compromises his position as an officer and
exhibits him as morally unworthy to remain in the honorable profession of arms.

CHARGE II: VIOLATION OF THE 97TH ARTICLE OF WAR (CONDUCT PREJUDICIAL TO GOOD
ORDER AND MILITARY DISCIPLINE).

SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED

FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 16 March 2004,
knowingly, wrongfully and unlawfully make untruthful statements under oath of his true assets in his
Statement of Assets and Liabilities and Net worth for the year 2003 as required by Republic Act No.
3019, as amended in relation to Republic Act 6713, conduct prejudicial to good order and military
discipline.

SPECIFICATION NO. 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED
FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 11 March 2003,
knowingly, wrongfully and unlawfully make untruthful statements under oath of his true assts in his
Statement of Assets and Liabilities and Net worth for the year 2002 as required by Republic Act No.
3019, as amended in relation to Republic Act 6713, conduct prejudicial to good order and military
discipline.

Petitioner, upon arraignment on November 16, 2004, pleaded not guilty on all the charges.

The Office of the Chief of Staff, through a Memorandum2 dated November 18, 2004, directed the
transfer of confinement of petitioner from his quarters at Camp General Emilio Aguinaldo to the
ISAFP Detention Center. On the same day, petitioner, having reached the age of fifty-six (56),
compulsorily retired from military service after availing of the provisions of Presidential Decree (P.D.)
No. 1650,3 amending Sections 3 and 5 of P.D. 1638, which establishes a system of retirement for
military personnel of the Armed Forces of the Philippines.

Pursuant to a Resolution4 dated June 1, 2005 of the Second Division of the Sandiganbayan,
petitioner was transferred from the ISAFP Detention Center to the Camp Crame Custodial Detention
Center.

After trial, at the Special General Court Martial No. 2, on December 2, 2005, the findings or the After-
Trial Report5of the same court was read to the petitioner. The report contains the following verdict
and sentence:

MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in closed session upon secret written
ballot 2/3 of all the members present at the time the voting was taken concurring the following
findings. Finds you:

On Specification 1 of Charge 1 Guilty except the words dollar deposits with Land Bank of the Phils,
dollar peso deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island,
United Coconut Planters Bank and Planters Development Bank.

On Specification 2 of Charge 1 Guilty except the words dollar deposits with Land Bank of the Phils,
dollar peso deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island,
United Coconut Planters Bank and Planters Development Bank.

On Specification 3 of Charge 1 Guilty

On Specification 1 of Charge 2 Guilty

On Specification 2 of Charge 2 Guilty

And again in closed session upon secret written ballot 2/3 all the members are present at the time
the votes was taken concurrently sentences you to be dishonorably [discharged] from the service, to
forfeit all pay and allowances due and to become due and to be confined at hard labor at such place
the reviewing authority may direct for a period of two (2) years. So ordered. (Emphases supplied)

Afterwards, in a document6 dated March 27, 2006, the Staff Judge Advocate stated the following
recommended action:

IV. RECOMMENDED ACTION:

The court, after evaluating the evidence, found accused: GUILTY on Charge 1, GUILTY on
Specification 1 on Charge 1 except the words dollar deposits with Land Bank of the Philippines,
dollar and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the
Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; GUILTY on
Charge 1, Specification 2 except the words dollar deposits with Land Bank of the Philippines, dollar
and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the
Philippine Islands, United Coconut Planters Bank and Planter's Development Bank; GUILTY on
Specification 3 of Charge 1; GUILTY on Charge 2 and all its specifications. The sentence imposed
by the Special GCM is to be dishonorably discharged from the service, to forfeit all pay and
allowances due and to become due; and to be confined at hard labor at such place the reviewing
authority may direct for a period of two (2) years. As it is, the sentence is proper and legal.
Recommend that the sentence be approved. The PNP custodial facility in Camp Crame, Quezon
City, is the appropriate place of confinement. The period of confinement from 18 October 2004 shall
be credited in his favor and deducted from the two (2) years to which the accused was sentenced.
Thus, confinement will expire on 18 October 2006. Considering that the period left not served is less
than one (1) year, confinement at the National Penitentiary is no longer appropriate.

4. To carry this recommendation into effect, a draft "ACTION OF THE REVIEWING AUTHORITY" is
hereto attached.

In an undated document,7 the AFP Board of Military Review recommended the following action:

8. RECOMMENDED ACTION:

A. Only so much of the sentence as provides for the mandatory penalty of dismissal from the
military service and forfeiture of pay and allowances due and to become due for the offenses
of violation of AW 96 (Conduct Unbecoming an Officer and a Gentleman) and for violation of
AW 97 (Conduct Prejudicial to Good Order and Military Discipline) be imposed upon the
Accused.

B. The records of the instant case should be forwarded to the President thru the Chief of
Staff and the Secretary of National Defense, for final review pursuant to AW 47, the Accused
herein being a General Officer whose case needs confirmation by the President.

C. To effectuate the foregoing, attached for CSAFP's signature/approval is a proposed 1st

Indorsement to the President, thru the Secretary of National Defense, recommending approval of the
attached prepared "ACTION OF THE PRESIDENT."

After six (6) years and two (2) months of preventive confinement, on December 16, 2010, petitioner
was released from the Camp Crame Detention Center.8
The Office of the President, or the President as Commander-in-Chief of the AFP and acting as the
Confirming Authority under the Articles of War, confirmed the sentence imposed by the Court Martial
against petitioner. The Confirmation of Sentence,9 reads in part:

NOW, THEREFORE, I, BENIGNO S. AQUINO III, the President as Commander-in-Chief of the

Armed Forces of the Philippines, do hereby confirm the sentence imposed by the Court Martial in the
case of People of the Philippines versus Major General Carlos Flores Garcia AFP:

a) To be dishonorable discharged from the service;

b) To forfeit all pay and allowances due and to become due; and

c) To be confined for a period of two (2) years in a penitentiary.

FURTHER, pursuant to the 48th and 49th Articles of War, the sentence on Major General Carlos
Flores Garcia AFP shall not be remitted/mitigated by any previous confinement. Major General
Carlos Flores Garcia AFP shall serve the foregoing sentence effective on this date.

DONE, in the City of Manila, this 9th day of September, in the year of our Lord, Two Thousand and
Eleven.

Consequently, on September 15, 2011, respondent Secretary of National Defense Voltaire T.

Gazmin, issued a Memorandum10 to the Chief of Staff, AFP for strict implementation, the
Confirmation of Sentence in the Court Martial Case of People of the Philippines Versus Major
General Carlos Flores Garcia AFP.

On September 16, 2011, petitioner was arrested and detained, and continues to be detained at the
National Penitentiary, Maximum Security, Bureau of Corrections, Muntinlupa City.11

Aggrieved, petitioner filed with this Court the present petition for certiorari and petition for habeas
corpus, alternatively. However, this Court, in its Resolution12 dated October 10, 2011, denied the
petition for habeas corpus. Petitioner filed a motion for reconsideration 13 dated November 15, 2011,
but was denied14 by this Court on December 12, 2011.

Petitioner enumerates the following grounds to support his petition:

GROUNDS

A.

THE JURISDICTION OF THE GENERAL COURT MARTIAL CEASED IPSO FACTO UPON THE
RETIREMENT OF PETITIONER, FOR WHICH REASON THE OFFICE OF THE PRESIDENT
ACTED WITHOUT JURISDICTION IN ISSUING THE CONFIRMATION OF SENTENCE, AND
PETITIONER'S ARREST AND CONFINEMENT PURSUANT THERETO IS ILLEGAL, THUS
WARRANTING THE WRIT OF HABEAS CORPUS.

B.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT PETITIONER REMAINED AMENABLE
TO COURT MARTIAL JURISDICTION AFTER HIS RETIREMENT, THE OFFICE OF THE
PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN IMPOSING THE SENTENCE OF
TWO (2) YEARS CONFINEMENT WITHOUT ANY LEGAL BASIS, FOR WHICH REASON
PETITIONER'S ARREST AND CONFINEMENT IS ILLEGAL, THUS WARRANTING THE WRIT OF
HABEAS CORPUS.

C.

EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE PENALTY OF TWO (2) YEARS
CONFINEMENT MAY BE IMPOSED IN ADDITION TO THE PENALTIES OF DISMISSAL AND
FORFEITURE, THE SENTENCE HAD BEEN FULLY SERVED IN VIEW OF PETITIONER'S
PREVENTIVE CONFINEMENT WHICH EXCEEDED THE 2-YEAR SENTENCE, AND THE OFFICE
OF THE PRESIDENT HAS NO AUTHORITY TO REPUDIATE SAID SERVICE OF SENTENCE,
FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT DESPITE FULL SERVICE
OF SENTENCE IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS.15

In view of the earlier resolution of this Court denying petitioner's petition for habeas corpus, the
above grounds are rendered moot and academic. Thus, the only issue in this petition for certiorari
under Rule 65 of the Revised Rules of Civil Procedure, which was properly filed with this

Court, is whether the Office of the President acted with grave abuse of discretion, amounting to lack
or excess of jurisdiction, in issuing the Confirmation of Sentence dated September 9, 2011.

In its Comment16 dated October 27, 2011, the Office of the Solicitor General (OSG) lists the following
counter-arguments:

I.

PETITIONER'S DIRECT RECOURSE TO THE HONORABLE COURT VIOLATES THE DOCTRINE

OF HIERARCHY OF COURTS; HENCE, THE PETITION SHOULD BE OUTRIGHTLY DISMISSED.

II.

THE GENERAL COURT MARTIAL RETAINED JURISDICTION OVER PETITIONER DESPITE HIS
RETIREMENT DURING THE PENDENCY OF THE PROCEEDINGS AGAINST HIM SINCE THE
SAID TRIBUNAL'S JURISDICTION HAD ALREADY FULLY ATTACHED PRIOR TO PETITIONER'S
RETIREMENT.

III.

THE CONFIRMATION ISSUED BY THE OFFICE OF THE PRESIDENT DIRECTING PETITIONER

TO BE CONFINED FOR TWO (2) YEARS IN A PENITENTIARY IS SANCTIONED BY C. A. NO. 408
AND EXECUTIVE ORDER NO. 178, PURSUANT TO THE PRESIDENT'S CONSTITUTIONAL
AUTHORITY AS THE COMMANDER-IN-CHIEF OF THE AFP.

IV.
PETITIONER'S RIGHT TO A SPEEDY DISPOSITION OF HIS CASE WAS NOT VIOLATED IN THIS
CASE.

V.

THE IMPOSITION OF THE PENALTY OF TWO (2) YEARS CONFINEMENT ON PETITIONER BY

THE GCM, AND AS CONFIRMED BY THE PRESIDENT OF THE PHILIPPINES, IS VALID.

VI.

ACCORDINGLY, PUBLIC RESPONDENTS DID NOT ACT WITH GRAVE ABUSE OF DISCRETION
IN ISSUING AND IMPLEMENTING THE CONFIRMATION OF SENTENCE. 17

Petitioner, in his Reply18 dated January 20, 2012, disagreed with the arguments raised by the OSG
due to the following:

(A)

THE CONFIRMATION OF THE COURT MARTIAL SENTENCE IS AN ACT BY THE PRESIDENT, AS

THE COMMANDER-IN-CHIEF, AND NOT MERELY AS THE HEAD OF THE EXECUTIVE BRANCH.
THEREFORE, THE HONORABLE COURT IS THE ONLY APPROPRIATE COURT WHERE HIS
ACT MAY BE IMPUGNED, AND NOT IN THE LOWER COURTS, I.E., REGIONAL TRIAL COURT
("RTC") OR THE COURT OF APPEALS ("CA"), AS THE OSG ERRONEOUSLY POSTULATES.

(B)

ALTHOUGH THE GENERAL COURT MARTIAL ("GCM") RETAINED JURISDICTION "OVER THE
PERSON" OF PETITIONER EVEN AFTER HE RETIRED FROM THE ARMED FORCES OF THE
PHILIPPINES ('AFP"), HOWEVER, HIS RETIREMENT, CONTRARY TO THE STAND OF THE OSG,
SEVERED HIS "JURAL RELATIONSHIP" WITH THE MILITARY, THEREBY PLACING HIM
BEYOND THE SUBSTANTIVE REACH OF THE AFP'S COURT MARTIAL JURISDICTION.

(C)

UNDER ART. 29, REVISED PENAL CODE ("RPC"), PETITIONER'S COURT MARTIAL SENTENCE
OF TWO (2) YEARS IN CARCERATION HAD ALREADY BEEN SERVED IN FULL SINCE HE HAD
ALREADY SUFFERED PREVENTIVE IMPRISONMENT OF AT LEAST SIX (6) YEARS BEFORE
THE SENTENCE COULD BE CONFIRMED, WHICH MEANS THAT THE PRESIDENT HAD NO
MORE JURISDICTION WHEN HE CONFIRMED IT, THEREBY RENDERING THE
"CONFIRMATION OF SENTENCE" A PATENT NULLITY, AND, CONSEQUENTLY, INVALIDATING
THE OSG'S POSITION THAT THE PRESIDENT STILL HAD JURISDICTION WHEN HE
CONFIRMED THE SENTENCE.19

Petitioner raises the issue of the jurisdiction of the General Court Martial to try his case. According to
him, the said jurisdiction ceased ipso facto upon his compulsory retirement. Thus, he insists that the
Office of the President had acted without jurisdiction in issuing the confirmation of his sentence.

This Court finds the above argument bereft of merit.

Article 2 of the Articles of War20 circumscribes the jurisdiction of military law over persons subject
thereto, to wit:

Art. 2. Persons Subject to Military Law. - The following persons are subject to these articles and shall
be understood as included in the term "any person subject to military law" or "persons subject to
military law," whenever used in these articles:

(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of
the Philippine Constabulary; all members of the reserve force, from the dates of their call to
active duty and while on such active duty; all trainees undergoing military instructions; and all
other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said
service, from the dates they are required by the terms of the call, draft, or order to obey the
same;

(b) Cadets, flying cadets, and probationary second lieutenants;

(c) All retainers to the camp and all persons accompanying or serving with the Armed Forces
of the Philippines in the field in time of war or when martial law is declared though not
otherwise subject to these articles;

(d) All persons under sentence adjudged by courts-martial.

(As amended by Republic Acts 242 and 516).

It is indisputable that petitioner was an officer in the active service of the AFP in March 2003 and
2004, when the alleged violations were committed. The charges were filed on October 27, 2004 and
he was arraigned on November 16, 2004. Clearly, from the time the violations were committed until
the time petitioner was arraigned, the General Court Martial had jurisdiction over the case. Well-
settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but
continues until the case is terminated.21 Therefore, petitioner's retirement on November 18, 2004 did
not divest the General Court Martial of its jurisdiction. In B/Gen. (Ret.) Francisco V. Gudani, et al. v.
Lt./Gen. Generoso Senga, et al.,22 this Court ruled that:

This point was settled against Gen. Gudani's position in Abadilla v. Ramos, where the Court declared
that an officer whose name was dropped from the roll of officers cannot be considered to be outside
the jurisdiction of military authorities when military justice proceedings were initiated against him
before the termination of his service. Once jurisdiction has been acquired over the officer, it
continues until his case is terminated. Thus, the Court held:

The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of
the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is
not lost upon the instance of the parties but continues until the case is terminated.

Citing Colonel Winthrop's treatise on Military Law, the Court further stated:

We have gone through the treatise of Colonel Winthrop and We find the following passage which
goes against the contention of the petitioners, viz.
3. Offenders in general Attaching of jurisdiction. It has further been held, and is now settled law, in
regard to military offenders in general, that if the military jurisdiction has once duly attached to them
previous to the date of the termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This principle has mostly
been applied to cases where the offense was committed just prior to the end of the term. In such
cases the interests of discipline clearly forbid that the offender should go unpunished. It is held
therefore that if before the day on which his service legally terminates and his right to a discharge is
complete, proceedings with a view to trial are commenced against him as by arrest or the service
of charges, the military jurisdiction will fully attach and once attached may be continued by a trial
by court-martial ordered and held after the end of the term of the enlistment of the accused x x x

Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of
and the initiation of the proceedings against him occurred before he compulsorily retired on 4
October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that
under Section 28 of Presidential Decree No. 1638, as amended, "an officer or enlisted man carried
in the retired list of the Armed Forces of the Philippines shall be subject to the Articles of War x x x"
To this citation, petitioners do not offer any response, and in fact have excluded the matter of Gen.
Gudani's retirement as an issue in their subsequent memorandum.23

It is also apt to mention that under Executive Order No. 178, or the Manual for Courts-Martial, AFP,
the jurisdiction of courts-martial over officers, cadets, soldiers, and other military personnel in the
event of discharge or other separation from the service, and the exceptions thereto, is defined thus:

10. COURT-MARTIAL Jurisdiction in general Termination General Rules The general rule is
that court-martial jurisdiction over officers, cadets, soldiers and others in the military service of the
Philippines ceases on discharge or other separation from such service, and that jurisdiction as to
any offense committed during a period of service thus terminated is not revived by a reentry into the
military service.

Exceptions To this general rule there are, however, some exceptions, among them the following:

xxxx

In certain case, where the person's discharge or other separation does not interrupt his status as a
person belonging to the general category of persons subject to military law, court-martial jurisdiction
does not terminate. Thus, where an officer holding a reserve commission is discharged from said
commission by reason of acceptance of a commission in the Regular Force, there being no interval
between services under the respective commissions, there is no terminating of the officer's military
status, but merely the accomplishment of a change in his status from that of a reserve to that of a
regular officer, and that court-martial jurisdiction to try him for an offense (striking enlisted men for
example) committed prior to the discharge is not terminated by the discharge. So also, where a
dishonorable discharged general prisoner is tried for an offense committed while a soldier and prior
to his dishonorable discharge, such discharge does not terminate his amenability to trial for the
offense. (Emphases supplied.)

Petitioner also asserts that the General Court Martial's continuing jurisdiction over him despite his
retirement holds true only if the charge against him involves fraud, embezzlement or
misappropriation of public funds citing this Court's ruling in De la Paz v. Alcaraz,et al. 24 and Martin v.
Ve r.25 However, this is not true. The OSG is correct in stating that in De la Paz,26 military jurisdiction
over the officer who reverted to inactive status was sustained by this Court because the violation
involved misappropriation of public funds committed while he was still in the active military service,
while in Martin,27 military jurisdiction was affirmed because the violation pertained to illegal disposal
of military property. Both cited cases centered on the nature of the offenses committed by the military
personnel involved, justifying the exercise of jurisdiction by the courts-martial. On the other hand, in
the present case, the continuing military jurisdiction is based on prior attachment of jurisdiction on
the military court before petitioner's compulsory retirement. This continuing jurisdiction is provided
under Section 1 of P.D. 1850,28 as amended, thus:

Section 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed
Forces. - Any provision of law to the contrary notwithstanding (a) uniformed members of the
Integrated National Police who commit any crime or offense cognizable by the civil courts shall
henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth
Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subject to military
law under article 2 of the aforecited Articles of War who commit any crime or offense shall be
exclusively tried by courts-martial or their case disposed of under the said Articles of War; Provided,
that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper
civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under
Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the
person of the accused military or Integrated National Police personnel can no longer be exercised by
virtue of their separation from the active service without jurisdiction having duly attached beforehand
unless otherwise provided by law: Provided further, that the President may, in the interest of justice,
order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil
court. (Emphasis supplied.)

Having established the jurisdiction of the General Court Martial over the case and the person of the
petitioner, the President, as Commander-in-Chief, therefore acquired the jurisdiction to confirm
petitioner's sentence as mandated under Article 47 of the Articles of War, which states:

Article 47. Confirmation When Required. - In addition to the approval required by article forty-five,
confirmation by the President is required in the following cases before the sentence of a court-
martial is carried into execution, namely:

(a) Any sentence respecting a general officer;

(b) Any sentence extending to the dismissal of an officer except that in time of war a
sentence extending to the dismissal of an officer below the grade of brigadier general may
be carried into execution upon confirmation by the commanding general of the Army in the
field;

(c) Any sentence extending to the suspension or dismissal of a cadet, probationary second
lieutenant; and

(d) Any sentence of death, except in the case of persons convicted in time of war, of murder,
mutiny, desertion, or as spies, and in such excepted cases of sentence of death may be
carried into execution, subject to the provisions of Article 50, upon confirmation by the
commanding general of the Army in the said field.
When the authority competent to confirm the sentence has already acted as the approving authority
no additional confirmation by him is necessary. (As amended by Republic Act No. 242). (Emphasis
supplied.)

In connection therewith, petitioner argues that the confirmation issued by the Office of the President
directing him to be confined for two (2) years in the penitentiary had already been fully served in
view of his preventive confinement which had exceeded two (2) years. Therefore, according to him,
the Office of the President no longer has the authority to order his confinement in a penitentiary. On
the other hand, the OSG opines that petitioner cannot legally demand the deduction of his
preventive confinement in the service of his imposed two-year confinement in a penitentiary,
because unlike our Revised Penal Code29 which specifically mandates that the period of preventive
imprisonment of the accused shall be deducted from the term of his imprisonment, the Articles of
War and/or the Manual for Courts-Martial do not provide for the same deduction in the execution of
the sentence imposed by the General Court Martial as confirmed by the President in appropriate
cases.

On the above matter, this Court finds the argument raised by the OSG unmeritorious and finds logic
in the assertion of petitioner that Article 29 of the Revised Penal Code can be made applicable in the
present case.

The OSG maintains that military commissions or tribunals are not courts within the Philippine judicial
system, citing Olaguer, et al. v. Military Commission No. 4, 30 hence, they are not expected to apply
criminal law concepts in their implementation and execution of decisions involving the discipline of
military personnel. This is misleading. In Olaguer, the courts referred to were military commissions
created under martial law during the term of former President Ferdinand Marcos and was declared
unconstitutional by this Court, while in the present case, the General Court Martial which tried it, was
created under Commonwealth Act No. 408, as amended, and remains a valid entity.

In Marcos v. Chief of Staff, Armed Forces of the Philippines,31 this Court ruled that a court-martial
case is a criminal case and the General Court Martial is a "court" akin to any other courts. In the
same case, this Court clarified as to what constitutes the words "any court" used in Section 17 32 of
the 1935 Constitution prohibiting members of Congress to appear as counsel in any criminal case in
which an officer or employee of the Government is accused of an offense committed in relation to his
office. This Court held:

We are of the opinion and therefore hold that it is applicable, because the words "any court" includes
the General Court-Martial, and a court-martial case is a criminal case within the meaning of the
above quoted provisions of our Constitution.

It is obvious that the words "any court," used in prohibiting members of Congress to appear as
counsel "in any criminal case in which an officer or employee of the Government is accused of an
offense committed in relation to his office," refers, not only to a civil, but also to a military court or a
Court-Martial. Because, in construing a Constitution, "it must be taken as established that where
words are used which have both a restricted and a general meaning, the general must prevail over
the restricted unless the nature of the subject matter of the context clearly indicates that the limited
sense is intended." (11 American Jurisprudence, pp. 680-682).

In the case of Ramon Ruffy vs. Chief of Staff of the Philippine Army,* 43 Off. Gaz., 855, we did not
hold that the word "court" in general used in our Constitution does not include a Court-Martial; what
we held is that the words "inferior courts" used in connection with the appellate jurisdiction of the
Supreme Court to "review on appeal certiorari or writ of error, as the law or rules of court may
provide, final judgments of inferior courts in all criminal cases in which the penalty imposed is death
or life imprisonment," as provided for in section 2, Article VIII, of the Constitution, do not refer to
Courts-Martial or Military Courts.

Winthrop's Military Law and Precedents, quoted by the petitioners and by this Court in the case of
Ramon Ruffy et al vs. Chief of Staff of the Philippine Army, supra, has to say in this connection the
following:

Notwithstanding that the court-martial is only an instrumentality of the executive power having no
relation or connection, in law, with the judicial establishments of the country, it is yet, so far as it is a
court at all, and within its field of action, as fully a court of law and justice as is any civil tribunal. As a
court of law, it is bound, like any court, by the fundamental principles of law, and, in the absence of
special provision of the subject in the military code, it observes in general the rules of evidence as
adopted in the common-law courts. As a court of justice, it is required by the terms of its statutory
oath, (art. 84.) to adjudicate between the U.S. and the accused "without partiality, favor, or affection,"
and according, not only to the laws and customs of the service, but to its "conscience," i.e. its sense
of substantial right and justice unaffected by technicalities. In the words of the Attorney General,
court-martial are thus, "in the strictest sense courts of justice. (Winthrop's Military Law and
Precedents, Vol. 1 and 2, 2nd Ed., p. 54.)

In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425, with approval, the court said:

In the language of Attorney General Cushing, a court-martial is a lawful tribunal existing by the same
authority that any other exists by, and the law military is a branch of law as valid as any other, and it
differs from the general law of the land in authority only in this: that it applies to officers and soldiers
of the army but not to other members of the body politic, and that it is limited to breaches of military
duty.

And in re Davison, 21 F. 618, 620, it was held:

That court-martial are lawful tribunals existing by the same authority as civil courts of the United
States, have the same plenary jurisdiction in offenses by the law military as the latter courts have in
controversies within their cognizance, and in their special and more limited sphere are entitled to as
untrammelled an exercise of their powers.

And lastly, American Jurisprudence says:

SEC. 99. Representation by Counsel. It is the general rule that one accused of the crime has the
right to be represented before the court by counsel, and this is expressly so declared by the statues
controlling the procedure in court-martial. It has been held that a constitutional provision extending
that right to one accused in any trial in any court whatever applies to a court-martial and gives the
accused the undeniable right to defend by counsel, and that a court-martial has no power to refuse
an attorney the right to appear before it if he is properly licensed to practice in the courts of the state.
(Citing the case of State ex rel Huffaker vs. Crosby, 24 Nev. 115, 50 Pac. 127; 36 American
Jurisprudence 253)
The fact that a judgment of conviction, not of acquittal, rendered by a court-martial must be approved
by the reviewing authority before it can be executed (Article of War 46), does not change or affect
the character of a court-martial as a court. A judgment of the Court of First Instance imposing death
penalty must also be approved by the Supreme Court before it can be executed.

That court-martial cases are criminal cases within the meaning of Section 17, Article VI, of the
Constitution is also evident, because the crimes and misdemeanors forbidden or punished by the
Articles of War are offenses against the Republic of the Philippines. According to section 1,

Rule 106, of the Rules of Court, a criminal action or case is one which involves a wrong or injury
done to the Republic, for the punishment of which the offender is prosecuted in the name of the
People of the Philippines; and pursuant to Article of War 17, "the trial advocate of a general or
special court-martial shall prosecute (the accused) in the name of the People of the Philippines."

Winthtrop, in his well known work "Military Law and Precedents' says the following:

In regard to the class of courts to which it belongs, it is lastly to be noted that the court-martial is
strictly a criminal court. It has no civil jurisdiction whatever; cannot enforce a contract, collect a debt,
or award damages in favor of an individual. . . . Its judgment is a criminal sentence not a civil verdict;
its proper function is to award punishment upon the ascertainment of guilt. (Winthrop's Military Law
and Precedents, Vols. 1 & 2, 2nd Ed., p. 55.)

In N. Y. it was held that the term "criminal case," used in the clause, must be allowed some meaning,
and none can be conceived, other than a prosecution for a criminal offense. Ex parte Carter. 66 S.
W. 540, 544, 166 No. 604, 57 L.R.A. 654, quoting People vs. Kelly, 24 N.Y. 74; Counselman vs.
Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed. 111o. (Words and Phrases, Vol. 10, p. 485.)

Besides, that a court-martial is a court, and the prosecution of an accused before it is a criminal and
not an administrative case, and therefore it would be, under certain conditions, a bar to another
prosecution of the defendant for the same offense, because the latter would place the accused in
jeopardy, is shown by the decision of the Supreme Court of the United States in the case of Grafton
vs. United States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the following was held:

If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded
the finality and conclusiveness as to the issues involved which attend the judgments of a civil court
in a case of which it may legally take cognizance; x x x and restricting our decision to the above
question of double jeopardy, we judge that, consistently with the above act of 1902, and for the
reasons stated, the plaintiff in error, a soldier in the Army, having been acquitted of the crime of
homicide, alleged to have been committed by him in the Philippines, by a military court of competent
jurisdiction, proceeding under the authority of the United States, could not be subsequently tried for
the same offense in a civil court exercising authority in that territory.33 (Emphasis supplied.)

Hence, as extensively discussed above, the General Court Martial is a court within the strictest
sense of the word and acts as a criminal court. On that premise, certain provisions of the Revised
Penal Code, insofar as those that are not provided in the Articles of War and the Manual for Courts-
Martial, can be supplementary. Under Article 10 of the Revised Penal Code:
Art. 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the future may
be punishable under special laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the contrary.

A special law is defined as a penal law which punishes acts not defined and penalized by the
Revised Penal Code.34 In the present case, petitioner was charged with and convicted of Conduct
Unbecoming an Officer and Gentleman (96th Article of War) and Violation of the 97th Article of War,
or Conduct Prejudicial to Good Order and Military Discipline, both of which are not defined and
penalized under the Revised Penal Code. The corresponding penalty imposed by the General Court
Martial, which is two (2) years of confinement at hard labor is penal in nature. Therefore, absent any
provision as to the application of a criminal concept in the implementation and execution of the
General Court Martial's decision, the provisions of the Revised Penal Code, specifically Article 29
should be applied. In fact, the deduction of petitioner's period of confinement to his sentence has
been recommended in the Staff Judge Advocate Review, thus:

x x x Recommend that the sentence be approved. The PNP custodial facility in Camp Crame,
Quezon City, is the appropriate place of confinement. The period of confinement from 18 October
2004 shall be credited in his favor and deducted from the two (2) years to which the accused was
sentenced. Thus, confinement will expire on 18 October 2006. Considering that the period left not
served is less than one (1) year, confinement at the National Penitentiary is no longer
appropriate.35 (Emphasis supplied.)

The above was reiterated in the Action of the Reviewing Authority, thus:

In the foregoing General Court-Martial case of People of the Philippines versus MGEN. CARLOS F.
GARCIA 0-5820 AFP (now Retired), the verdict of GUILTY is hereby approved.

The sentence to be dishonorably discharged from the service; to forfeit all pay and allowances due
and to become due; and to be confined at hard labor at such place as the reviewing authority may
direct for a period of two (2) years is also approved.

Considering that the Accused has been in confinement since 18 October 2004, the entire period of
his confinement since 18 October 2004 will be credited in his favor. Consequently, his two (2) year
sentence of confinement will expire on 18 October 2006.

The proper place of confinement during the remaining unserved portion of his sentence is an official
military detention facility. However, the Accused is presently undergoing trial before the
1wphi1

Sandiganbayan which has directed that custody over him be turned over to the civilian authority and
that he be confined in a civilian jail or detention facility pending the disposition of the case(s) before
said Court. For this reason, the Accused shall remain confined at the PNP's detention facility in
Camp Crame, Quezon City. The Armed Forces of the Philippines defers to the civilian authority on
this matter.

Should the Accused be released from confinement upon lawful orders by the Sandiganbayan before
the expiration of his sentence adjudged by the military court, the Provost Marshal General shall
immediately take custody over the Accused, who shall be transferred to and serve the remaining
unserved portion thereof at the ISAFP detention facility in Camp General Emilio Aguinaldo, Quezon
City.36 (Emphasis supplied.)
Nevertheless, the application of Article 29 of the Revised Penal Code in the Articles of War is in
accordance with the Equal Protection Clause of the 1987 Constitution. According to a long line of
decisions, equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. 37 It requires public bodies and
institutions to treat similarly situated individuals in a similar manner.38 The purpose of the equal
protection clause is to secure every person within a state's jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper
execution through the state's duly-constituted authorities.39 In other words, the concept of equal
justice under the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate governmental
objective.40 It, however, does not require the universal application of the laws to all persons or things
without distinction. What it simply requires is equality among equals as determined according to a
valid classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) the
classification rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not
limited to existing conditions only; and (4) it applies equally to all members of the same
class.41 "Superficial differences do not make for a valid classification."42 In the present case, petitioner
belongs to the class of those who have been convicted by any court, thus, he is entitled to the rights
accorded to them. Clearly, there is no substantial distinction between those who are convicted of
offenses which are criminal in nature under military courts and the civil courts. Furthermore, following
the same reasoning, petitioner is also entitled to the basic and time-honored principle that penal
statutes are construed strictly against the State and liberally in favor of the accused. 43 It must be
remembered that the provisions of the Articles of War which the petitioner violated are penal in
nature.

The OSG is correct when it argued that the power to confirm a sentence of the President, as
Commander-in-Chief, includes the power to approve or disapprove the entire or any part of the
sentence given by the court martial. As provided in Article 48 of the Articles of War:

Article 48. Power Incident to Power to Confirm. - The power to confirm the sentence of a court-
martial shall be held to include:

(a) The power to confirm or disapprove a finding, and to confirm so much only of a finding of
guilty of a particular offense as involves a finding of guilty of a lesser included offense when,
in the opinion of the authority having power to confirm, the evidence of record requires a
finding of only the lesser degree of guilt;

(b) The power to confirm or disapprove the whole or any part of the sentence; and

(c) The power to remand a case for rehearing, under the provisions of Article 50. (Emphasis
supplied.)

In addition, the President also has the power to mitigate or remit a sentence. Under Article 49 of the
Articles of War:

Article 49. Mitigation or Remission of Sentence. - The power to order the execution of the sentence
adjudged by a court-martial shall be held to include, inter alia, the power to mitigate or remit the
whole or any part of the sentence.
Any unexpected portion of a sentence adjudged by a court-martial may be mitigated or remitted by
the military authority competent to appoint, for the command, exclusive of penitentiaries and
Disciplinary Barracks of the Armed Forces of the Philippines or Philippine Constabulary, in which the
person under sentence is held, a court of the kind that imposed the sentence, and the same power
may be exercised by superior military authority; but no sentence approved or confirmed by the
President shall be remitted or mitigated by any other authority, and no approved sentence of loss of
files by an officer shall be remitted or mitigated by any authority inferior to the President, except as
provided in Article 52.

When empowered by the President to do so, the commanding general of the Army in the field or the
area commander may approve or confirm and commute (but not approve or confirm without
commuting), mitigate, or remit and then order executed as commuted, mitigated, or remitted any
sentence which under those Articles requires the confirmation of the President before the same may
be executed. (As amended by Republic Act No. 242).

Thus, the power of the President to confirm, mitigate and remit a sentence of erring military
personnel is a clear recognition of the superiority of civilian authority over the military. However,
although the law (Articles of War) which conferred those powers to the President is silent as to the
deduction of the period of preventive confinement to the penalty imposed, as discussed earlier, such
is also the right of an accused provided for by Article 29 of the RPC.

As to petitioner's contention that his right to a speedy disposition of his case was violated, this Court
finds the same to be without merit.

No less than our Constitution guarantees the right not just to a speedy trial but to the speedy
disposition of cases.44 However, it needs to be underscored that speedy disposition is a relative and
flexible concept. A mere mathematical reckoning of the time involved is not sufficient. Particular
regard must be taken of the facts and circumstances peculiar to each case. 45 In determining whether
or not the right to the speedy disposition of cases has been violated, this Court has laid down the
following guidelines: (1) the length of the delay; (2) the reasons for such delay; (3) the assertion or
failure to assert such right by the accused; and (4) the prejudice caused by the delay.46

In this case, there was no allegation, whatsoever of any delay during the trial. What is being
questioned by petitioner is the delay in the confirmation of sentence by the President. Basically, the
case has already been decided by the General Court Martial and has also been reviewed by the
proper reviewing authorities without any delay. The only thing missing then was the confirmation of
sentence by the President. The records do not show that, in those six (6) years from the time the
decision of the General Court Martial was promulgated until the sentence was finally confirmed by
the President, petitioner took any positive action to assert his right to a speedy disposition of his
case. This is akin to what happened in Guerrero v. Court of Appeals,47 where, in spite of the lapse of
more than ten years of delay, the Court still held that the petitioner could not rightfully complain of
delay violative of his right to speedy trial or disposition of his case, since he was part of the reason
for the failure of his case to move on towards its ultimate resolution. The Court held, inter alia:

In the case before us, the petitioner merely sat and waited after the case was submitted for
resolution in 1979. It was only in 1989 when the case below was reraffled from the RTC of Caloocan
City to the RTC of Navotas-Malabon and only after respondent trial judge of the latter court ordered
on March 14, 1990 the parties to follow-up and complete the transcript of stenographic notes that
matters started to get moving towards a resolution of the case. More importantly, it was only after the
new trial judge reset the retaking of the testimonies to November 9, 1990 because of petitioner's
absence during the original setting on October 24, 1990 that the accused suddenly became zealous
of safeguarding his right to speedy trial and disposition.

xxxx

In the present case, there is no question that petitioner raised the violation against his own right to
speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to
assume that he would have just continued to sleep on his right a situation amounting to laches
had the respondent judge not taken the initiative of determining the non-completion of the records
and of ordering the remedy precisely so he could dispose of the case. The matter could have taken
a different dimension if during all those ten years between 1979 when accused filed his
memorandum and 1989 when the case was reraffled, the accused showed signs of asserting his
right which was granted him in 1987 when the new constitution took effect, or at least made some
overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe
stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a
waiver of such right.

While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy
trial, and although this Court has always zealously espoused protection from oppressive and
vexatious delays not attributable to the party involved, at the same time, we hold that a party's
individual rights should not work against and preclude the people's equally important right to public
justice. In the instant case, three people died as a result of the crash of the airplane that the accused
was flying. It appears to us that the delay in the disposition of the case prejudiced not just the
accused but the people as well. Since the accused has completely failed to assert his right
seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on
the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair
opportunity to obtain (and the court to dispense) substantial justice in the premises. 48

Time runs against the slothful and those who neglect their rights.49 In fact, the delay in the
confirmation of his sentence was to his own advantage, because without the confirmation from the
President, his sentence cannot be served.

Anent petitioner's other arguments, the same are already rendered moot and academic due to the
above discussions. 1wphi1

Grave abuse of discretion means such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of
discretion, as when the power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.50 Thus,
applying, the earlier disquisitions, this Court finds that the Office of the President did not commit any
grave abuse of discretion in issuing the Confirmation of Sentence in question.

WHEREFORE, the Petition for Certiorari dated September 29, 2011 of Major General Carlos F.
Garcia, AFP (Ret.) is hereby DISMISSED. However, applying the provisions of Article 29 of the
Revised Penal Code, the time within which the petitioner was under preventive confinement should
be credited to the sentence confirmed by the Office of the President, subject to the conditions set
forth by the same law.
SO ORDERED.

XVII.2 R E S O L U T I O N

EDWIN N. NACIONALES, ERNESTO P. MALVAS, AND JOSE MA. G.

AMUGOD, Petitioners, v. SANDIGANBAYAN (FIRST DIVISION) AND PEOPLE OF THE PHILIPPINES,
REPRESENTED BY THE OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE
OMBUDSMAN, Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in these consolidated Petitions for Certiorari1 are the October 6, 20092 and February 10,
20103 Resolutions of public respondent First Division of Sandiganbayan (SB), denying the Motion to
Quash4 dated July 8, 2009 filed by petitioner Rafael L. Coscolluela (Coscolluela). The said motion was
adopted by petitioners Edwin N. Nacionales (Nacionales), Dr. Ernesto P. Malvas (Malvas), and Jose Ma. G.
Amugod (Amugod), praying for the dismissal of Crim. Case No. SB-09-CRM-0154 for violation of their right
to speedy disposition of cases.

The Facts

Coscolluela served as governor of the Province of Negros Occidental (Province) for three (3) full terms which
ended on June 30, 2001. During his tenure, Nacionales served as his Special Projects Division Head,
Amugod as Nacionales subordinate, and Malvas as Provincial Health Officer.5

On November 9, 2001, the Office of the Ombudsman for the Visayas (Office of the Ombudsman) received a
letter-complaint6 dated November 7, 2001 from Peoples Graftwatch, requesting for assistance to investigate
the anomalous purchase of medical and agricultural equipment for the Province in the amount of
P20,000,000.00 which allegedly happened around a month before Coscolluela stepped down from office.

Acting on the letter-complaint, the Case Building Team of the Office of the Ombudsman conducted its
investigation, resulting in the issuance of a Final Evaluation Report 7 dated April 16, 2002 which upgraded the
complaint into a criminal case against petitioners.8 Consequently, petitioners filed their respective counter-
affidavits.9

On March 27, 2003, the assigned Graft Investigation Officer Butch E. Caares (Caares) prepared a
Resolution (March 27, 2003 Resolution), finding probable cause against petitioners for violation of Section
3(e) of Republic Act No. (RA) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and
recommended the filing of the corresponding information. On even date, the Information 10was prepared and
signed by Caares and submitted to Deputy Ombudsman for the Visayas Primo C. Miro (Miro) for
recommendation. Miro recommended the approval of the Information on June 5, 2003. However, the final
approval of Acting Ombudsman Orlando C. Casimiro (Casimiro), came only on May 21, 2009, and on June
19, 2009, the Information was filed before the SB.

Petitioners alleged that they learned about the March 27, 2003 Resolution and Information only when they
received a copy of the latter shortly after its filing with the SB. 11

On July 9, 2009, Coscolluela filed a Motion to Quash,12 arguing, among others, that his constitutional right to
speedy disposition of cases was violated as the criminal charges against him were resolved only after almost
eight (8) years since the complaint was instituted. Nacionales, Malvas, and Amugod later adopted
Coscolluelas motion.

In reply, the respondents filed their Opposition to Motion to Quash 13 dated August 7, 2009, explaining that
although the Information was originally dated March 27, 2003, it still had to go through careful review and
revision before its final approval. It also pointed out that petitioners never raised any objections regarding
the purported delay in the proceedings during the interim. 14

The Ruling of the Sandiganbayan

In a Resolution15 dated October 6, 2009, the SB denied petitioners Motion to Quash for lack of merit. It held
that the preliminary investigation against petitioners was actually resolved by Caares on March 27, 2003,
one (1) year and four (4) months from the date the complaint was filed, or in November 9, 2001. Complying
with internal procedure, Caares then prepared the March 27, 2003 Resolution and Information for the
recommendation of the Miro and eventually, the final approval of the Casimiro. As these issuances had to
undergo careful review and revision through the various levels of the said office, the period of delay i.e.,
from March 27, 2003 to May 21, 2009, or roughly over six (6) years cannot be deemed as inordinate 16 and
as such, petitioners constitutional right to speedy disposition of cases was not violated. 17

Aggrieved, petitioners filed their respective Motions for Reconsideration 18 dated November 9, 2009 and
November 6, 2009, similarly arguing that the SB erred in making a distinction between two time periods,
namely: (a) from the filing of the complaint up to the time Caares prepared the resolution finding probable
cause against petitioners; and (b) from the submission of the said resolution to the Acting Ombudsman for
review and approval up to the filing of the Information with the SB. In this regard, petitioners averred that
the aforementioned periods should not be compartmentalized and thus, treated as a single period.
Accordingly, the delay of eight (8) years of the instant case should be deemed prejudicial to their right to
speedy disposition of cases.19

The SB, however, denied the foregoing motions in its Resolution20 dated February 10, 2010 for lack of merit.

Hence, the instant petitions.

The Issue Before the Court

The sole issue raised for the Courts resolution is whether the SB gravely abused its discretion in finding that
petitioners right to speedy disposition of cases was not violated.

The Courts Ruling

The petitions are meritorious.

A persons right to the speedy disposition of his case is guaranteed under Section 16, Article III of the 1987
Philippine Constitution (Constitution) which provides: cralavvonline lawlibrary

SEC. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies.

This constitutional right is not limited to the accused in criminal proceedings but extends to all parties in all
cases, be it civil or administrative in nature, as well as all proceedings, either judicial or quasi-judicial. In
this accord, any party to a case may demand expeditious action to all officials who are tasked with the
administration of justice.21

It must be noted, however, that the right to speedy disposition of cases should be understood to be a
relative or flexible concept such that a mere mathematical reckoning of the time involved would not be
sufficient.22 Jurisprudence dictates that the right is deemed violated only when the proceedings are attended
by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked
for and secured; or even without cause or justifiable motive, a long period of time is allowed to elapse
without the party having his case tried.23

Hence, in the determination of whether the defendant has been denied his right to a speedy disposition of a
case, the following factors may be considered and balanced: (1) the length of delay; (2) the reasons for the
delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the
delay.24

Examining the incidents in the present case, the Court holds that petitioners right to a speedy disposition of
their criminal case had been violated.

First, it is observed that the preliminary investigation proceedings took a protracted amount of time to
complete.
In this relation, the Court does not lend credence to the SBs position that the conduct of preliminary
investigation was terminated as early as March 27, 2003, or the time when Caares prepared the Resolution
recommending the filing of the Information. This is belied by Section 4, Rule II of the Administrative Order
No. 07 dated April 10, 1990, otherwise known as the Rules of Procedure of the Office of the Ombudsman,
which provides: cralavvonline lawlibrary

SEC. 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112
of the Rules of Court, subject to the following provisions: cralavvonline lawlibrary

xxxx

No information may be filed and no complaint may be dismissed without the written authority or approval of
the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy
Ombudsman in all other cases. (Emphasis and underscoring supplied)

The above-cited provision readily reveals that there is no complete resolution of a case under preliminary
investigation until the Ombudsman approves the investigating officers recommendation to either file an
Information with the SB or to dismiss the complaint. Therefore, in the case at bar, the preliminary
investigation proceedings against the petitioners were not terminated upon Caares preparation of the
March 27, 2003 Resolution and Information but rather, only at the time Casimiro finally approved the same
for filing with the SB. In this regard, the proceedings were terminated only on May 21, 2009, or almost eight
(8) years after the filing of the complaint.

Second, the above-discussed delay in the Ombudsmans resolution of the case largely remains unjustified.

To this end, the Court equally denies the SBs ratiocination that the delay in proceedings could be excused
by the fact that the case had to undergo careful review and revision through the different levels in the Office
of the Ombudsman before it is finally approved, in addition to the steady stream of cases which it had to
resolve.

Verily, the Office of the Ombudsman was created under the mantle of the Constitution, mandated to be the
protector of the people and as such, required to act promptly on complaints filed in any form or manner
against officers and employees of the Government, or of any subdivision, agency or instrumentality thereof,
in order to promote efficient service.25 This great responsibility cannot be simply brushed aside by
ineptitude. Precisely, the Office of the Ombudsman has the inherent duty not only to carefully go through
the particulars of case but also to resolve the same within the proper length of time. Its dutiful performance
should not only be gauged by the quality of the assessment but also by the reasonable promptness of its
dispensation. Thus, barring any extraordinary complication, such as the degree of difficulty of the questions
involved in the case or any event external thereto that effectively stymied its normal work activity any of
which have not been adequately proven by the prosecution in the case at bar there appears to be no
justifiable basis as to why the Office of the Ombudsman could not have earlier resolved the preliminary
investigation proceedings against the petitioners.

Third, the Court deems that petitioners cannot be faulted for their alleged failure to assert their right to
speedy disposition of cases.

Records show that they could not have urged the speedy resolution of their case because they were unaware
that the investigation against them was still on-going. They were only informed of the March 27, 2003
Resolution and Information against them only after the lapse of six (6) long years, or when they received a
copy of the latter after its filing with the SB on June 19, 2009. 26 In this regard, they could have reasonably
assumed that the proceedings against them have already been terminated. This serves as a plausible reason
as to why petitioners never followed-up on the case altogether. Instructive on this point is the Courts
observation in Duterte v. Sandiganbayan,27 to wit: cralavvonline lawlibrary

Petitioners in this case, however, could not have urged the speedy resolution of their case
because they were completely unaware that the investigation against them was still on-going.
Peculiar to this case, we reiterate, is the fact that petitioners were merely asked to comment, and not file
counter-affidavits which is the proper procedure to follow in a preliminary investigation. After giving their
explanation and after four long years of being in the dark, petitioners, naturally, had reason to
assume that the charges against them had already been dismissed.
On the other hand, the Office of the Ombudsman failed to present any plausible, special or even novel
reason which could justify the four-year delay in terminating its investigation. Its excuse for the delay the
many layers of review that the case had to undergo and the meticulous scrutiny it had to entail has lost
its novelty and is no longer appealing, as was the invocation in the Tatad case. The incident before us does
not involve complicated factual and legal issues, specially (sic) in view of the fact that the subject
computerization contract had been mutually cancelled by the parties thereto even before the Anti-Graft
League filed its complaint. (Emphasis and underscoring supplied)

Being the respondents in the preliminary investigation proceedings, it was not the petitioners duty to follow
up on the prosecution of their case. Conversely, it was the Office of the Ombudsmans responsibility to
expedite the same within the bounds of reasonable timeliness in view of its mandate to promptly act on all
complaints lodged before it. As pronounced in the case of Barker v. Wingo:28

A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that
the trial is consistent with due process.

Fourth, the Court finally recognizes the prejudice caused to the petitioners by the lengthy delay in the
proceedings against them.

Lest it be misunderstood, the right to speedy disposition of cases is not merely hinged towards the objective
of spurring dispatch in the administration of justice but also to prevent the oppression of the citizen by
holding a criminal prosecution suspended over him for an indefinite time. 29 Akin to the right to speedy trial,
its salutary objective is to assure that an innocent person may be free from the anxiety and expense of
litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the
presentation and consideration of whatsoever legitimate defense he may interpose. 30 This looming unrest as
well as the tactical disadvantages carried by the passage of time should be weighed against the State and in
favor of the individual. In the context of the right to a speedy trial, the Court in Corpuz v.
Sandiganbayan31 (Corpuz) illumined: cralavvonlinelawlibrary

A balancing test of applying societal interests and the rights of the accused necessarily compels the court to
approach speedy trial cases on an ad hoc basis.

x x x Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was
designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns
of the accused to trial; and to limit the possibility that his defense will be impaired. Of these, the most
serious is the last, because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall
accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is
still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion
and often, hostility. His financial resources may be drained, his association is curtailed, and he is
subjected to public obloquy.

Delay is a two-edge sword. It is the government that bears the burden of proving its case beyond
reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its
burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or
exertion from courts or the prosecutor, nor contemplate that such right shall deprive the State of a
reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the
government to sustain its right to try the accused despite a delay, it must show two things: (a) that the
accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and
(b) that there was no more delay than is reasonably attributable to the ordinary processes of justice.

Closely related to the length of delay is the reason or justification of the State for such delay. Different
weights should be assigned to different reasons or justifications invoked by the State. For instance, a
deliberate attempt to delay the trial in order to hamper or prejudice the defense should be weighted heavily
against the State. Also, it is improper for the prosecutor to intentionally delay to gain some tactical
advantage over the defendant or to harass or prejudice him. On the other hand, the heavy case load of the
prosecution or a missing witness should be weighted less heavily against the State. x x x (Emphasis and
underscoring supplied; citations omitted)
As the right to a speedy disposition of cases encompasses the broader purview of the entire proceedings of
which trial proper is but a stage, the above-discussed effects in Corpuz should equally apply to the case at
bar. As held in Dansal v. Fernandez, Sr.:32

Sec. 16, Article III of the 1987 Constitution, reads: cralavvonline lawlibrary

Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies.

Initially embodied in Section 16, Article IV of the 1973 Constitution, the aforesaid constitutional provision is
one of three provisions mandating speedier dispensation of justice. It guarantees the right of all
persons to a speedy disposition of their case; includes within its contemplation the periods
before, during and after trial, and affords broader protection than Section 14(2), which
guarantees just the right to a speedy trial. It is more embracing than the protection under Article VII,
Section 15, which covers only the period after the submission of the case. The present constitutional
provision applies to civil, criminal and administrative cases. (Emphasis and underscoring supplied; citations
omitted)

Thus, in view of the unjustified length of time miring the Office of the Ombudsmans resolution of the case
as well as the concomitant prejudice that the delay in this case has caused, it is undeniable that petitioners
constitutional right to due process and speedy disposition of cases had been violated. As the institutional
vanguard against corruption and bureaucracy, the Office of the Ombudsman should create a system of
accountability in order to ensure that cases before it are resolved with reasonable dispatch and to equally
expose those who are responsible for its delays, as it ought to determine in this case.

Corollarily, for the SBs patent and utter disregard of the existing laws and jurisprudence surrounding the
matter, the Court finds that it gravely abused its discretion when it denied the quashal of the Information.
Perforce, the assailed resolutions must be set aside and the criminal case against petitioners be dismissed.

While the foregoing pronouncement should, as matter of course, result in the acquittal of the petitioners, it
does not necessarily follow that petitioners are entirely exculpated from any civil liability, assuming that the
same is proven in a subsequent case which the Province may opt to pursue.

Section 2, Rule 111 of the Rules of Court provides that an acquittal in a criminal case does not bar the
private offended party from pursuing a subsequent civil case based on the delict, unless the judgment of
acquittal explicitly declares that the act or omission from which the civil liability may arise did
not exist.33 As explained in the case of Abejuela v. People,34 citing Banal v. Tadeo, Jr.:35

The Rules provide: The extinction of the penal action does not carry with it extinction of the civil,
unless the extinction proceeds from a declaration in a final judgment that the fact from which the
civil might arise did not exist. In other cases, the person entitled to the civil action may institute
it in the jurisdiction and in the manner provided by law against the person who may be liable for
restitution of the thing and reparation or indemnity for the damage suffered.

xxxx

In Banal vs. Tadeo, Jr., we declared: cralavvonlinelawlibrary

While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so
much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can
readily see that what gives rise to the civil liability is really the obligation and moral duty of
everyone to repair or make whole the damage caused to another by reason of his own act or
omission, done intentionally or negligently, whether or not the same be punishable by
law.(Emphasis and underscoring supplied)

Based on the violation of petitioners right to speedy disposition of cases as herein discussed, the present
case stands to be dismissed even before either the prosecution or the defense has been given the chance to
present any evidence. Thus, the Court is unable to make a definite pronouncement as to whether petitioners
indeed committed the acts or omissions from which any civil liability on their part might arise as prescribed
under Section 2, Rule 120 of the Rules of Court.36Consequently, absent this pronouncement, the Province is
not precluded from instituting a subsequent civil case based on the delict if only to recover the amount of
P20,000,000.00 in public funds attributable to petitioners alleged malfeasance.

WHEREFORE, the petitions are hereby GRANTED. The assailed Resolutions dated October 6, 2009 and
February 10, 2010 of the First Division of the Sandiganbayan are ANNULLED and SET ASIDE. The
Sandiganbayan is likewise ordered to DISMISS Crim. Case No. SB-09-CRM-0154 for violation of the
Constitutional right to speedy disposition of cases of petitioners Rafael L. Coscolluela, Edwin N. Nacionales,
Dr. Ernesto P. Malvas, and Jose Ma. G. Amugod, without prejudice to any civil action which the Province of
Negros Occidental may file against petitioners.

SO ORDERED

XVIII.1 MALCOLM, J.:

The petitioner prays that a writ of habeas corpus issue to restore her to her liberty.

The facts are not dispute. In a criminal case pending before the Court of First Instance of the city of
Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On this
case coming on for trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the
petitioner of the assistant fiscal for the city of Manila, the court ordered the defendant Emeteria
Villaflor, nor become the petitioner herein, to submit her body to the examination of one or two
competent doctors to determine if she was pregnant or not. The accused refused to obey the order
on the ground that such examination of her person was a violation of the constitutional provision
relating to self-incrimination. Thereupon she was found in contempt of court and was ordered to be
committed to Bilibid Prison until she should permit the medical examination required by the court.

The sole legal issue from the admitted facts is whether the compelling of a woman to permit her
body to be examined by physicians to determine if she is pregnant, violates that portion of the
Philippine Bill of Rights and that portion of our Code of Criminal Procedure which find their origin in
the Constitution of the United States and practically all state constitutions and in the common law
rules of evidence, providing that no person shall be compelled in any criminal case to be a witness
against himself. (President's Instructions to the Philippine Commission; Act of Congress of July 1,
1902, section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph 3; Code of
Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.) Counsel for
petitioner argues that such bodily exhibition is an infringement of the constitutional provision; the
representative of the city fiscal contends that it is not an infringement of the constitutional provision.
The trial judge in the instant case has held with the fiscal; while it is brought to our notice that a
judge of the same court has held on an identical question as contended for by the attorney for the
accused and petitioner.

The authorities are abundant but conflicting. What may be termed the conservative courts
emphasize greatly the humanitarianism of the constitutional provisions and are pleased to extend
the privilege in order that its mantle may cover any fact by which the accused is compelled to make
evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey
[1879], 14 Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., 506; State vs. Height
[1902]. 117 Iowa., 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view
and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216). A woman was charged
with the crime of infanticide. The corner directed two physicians to go to the jail and examine her
private parts to determine whether she had recently been delivered of a child. She objected to the
examination, but being threatened with force, yielded, and the examination was had. The evidence
of these physicians was offered at the trial and ruled out. The court said that the proceeding was in
violation of the spirit and meaning of the Constitution, which declares that "no person shall be
compelled in any criminal case to be a witness against himself." Continuing, the court said: "They
might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been
pregnant, and had been delivered of a child, as to have compelled her, by threats, to allow them to
look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and
been delivered of a child. . . . Has this court the right to compel the prisoner now to submit to an
examination they are of the opinion she is not a virgin, and has had a child? It is not possible that
this court has that right; and it is too clear to admit of argument that evidence thus obtained would be
inadmissible against the prisoner."

It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly
impressed with the weight of these decisions, especially the one written by Mr. Justice McClain, in
State vs. Height, supra, the instant case was reported by the writer with the tentative
recommendation that the court should lay down the general rule that a defendant can be compelled
to disclose only those parts of the body which are not usually covered. Buth having disabused our
minds of a too sensitive appreciation of the rights of accused persons, and having been able, as we
think, to penetrate through the maze of law reports to the policy which lies behind the constitutional
guaranty and the common law principle, we have come finally to take our stand with what we believe
to be the reason of the case.

In contradistinction to the cases above-mentioned are others which seem to us more progressive in
nature. Among these can be prominently mentioned decisions of the United States Supreme Court,
and the Supreme Court of these Islands. Thus, the always forward looking jurist, Mr. Justice Holmes,
in the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection based
upon what he termed "an extravagant extension of the Fifth Amendment," said: "The prohibition of
compelling a man in a criminal court to be a witness against himself is a prohibition of the use of
physical or moral compulsion to extort communications from him, not an exclusion of his body as
evidence when it may be material." (See also, of same general tenor, decision of Mr. Justice Day in
Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two
decisions, has seemed to limit the protection to a prohibition against compulsory testimonial self-
incrimination. The constitutional limitation was said to be "simply a prohibition against legal process
to extract from the defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan
Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle
announced in 16 Corpus Juris, 567, 568, citing the United States Supreme Court and the Supreme
Court of the Philippine Islands as authority.)

Although we have stated s proposition previously announced by this court and by the highest
tribunal in the United States, we cannot unconcernedly leave the subject without further
consideration. Even in the opinion Mr. Justice Holmes, to which we have alluded, there was inserted
the careful proviso that "we need not consider how far a court would go in compelling a man to
exhibit himself." Other courts have likewise avoided any attempt to determine the exact location of
the dividing line between what is proper and what is improper in this very broad constitutional field.
But here before us is presented what would seem to be the most extreme case which could be
imagined. While the United States Supreme Court could nonchalantly decree that testimony that an
accused person put on a blouse and it fitted him is not a violation of the constitutional provision,
while the Supreme Court of Nuevada could go so far as to require the defendant to roll up his sleeve
in order to disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit
substances taken from the person of an accused to be offered in evidence, none of these even
approach in apparent harshness an order to make a woman, possibly innocent, to disclose her body
in all of its sanctity to the gaze of strangers. We can only consistently consent to the retention of a
principle which would permit of such a result by adhering steadfastly to the proposition that the
purpose of the constitutional provision was and is merely to prohibit testimonial compulsion.

So much for the authorities. For the nonce we would prefer to forget them entirely, and here in the
Philippines, being in the agrreable state of breaking new ground, would rather desire our decision to
rest on a strong foundation of reason and justice than on a weak one blind adherence to tradition
and precedent. Moreover, we believe that an unbiased consideration of the history of the
constitutional provisions will disclose that our conclusion is in exact accord with the causes which led
to its adoption.

The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early
days, but not in the other legal systems of the world, in a revolt against the thumbscrew and the
rack. A legal shield was raised against odious inquisitorial methods of interrogating an accused
person by which to extort unwilling confessions with the ever present temptation to commit the crime
of perjury. The kernel of the privilege as disclosed by the textwriters was testimonial compulsion. As
forcing a man to be a witness against himself was deemed contrary to the fundamentals of
republican government, the principle was taken into the American Constitutions, and from the United
States was brought to the Philippine Islands, in exactly as wide but no wider a scope as it
existed in old English days. The provision should here be approached in no blindly worshipful spirit,
but with a judicious and a judicial appreciation of both its benefits and its abuses. (Read the
scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p.
610 found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.)

Perhaps the best way to test the correctness of our position is to go back once more to elements
and ponder on what is the prime purpose of a criminal trial. As we view it, the object of having
criminal laws is to purgue the community of persons who violate the laws to the great prejudice of
their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions, are then
provided, not to protect the guilty but to protect the innocent. No rule is intemended to be so rigid as
to embarrass the administration of justice in its endeavor to ascertain the truth. No accused person
should be afraid of the use of any method which will tend to establish the truth. For instance, under
the facts before us, to use torture to make the defendant admit her guilt might only result in including
her to tell a falsehood. But no evidence of physical facts can for any substantial reason be held to be
detrimental to the accused except in so far as the truth is to be avoided in order to acquit a guilty
person.

Obviously a stirring plea can be made showing that under the due process of law cause of the
Constitution every person has a natural and inherent right to the possession and control of his own
body. It is extremely abhorrent to one's sense of decency and propriety to have the decide that such
inviolability of the person, particularly of a woman, can be invaded by exposure to another's gaze. As
Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S., 250) said, "To compel
any one, and especially a woman, to lay bare the body, or to submit to the touch of a stranger,
without lawful authority, is an indignity, an assault, and a trespass." Conceded, and yet, as well
suggested by the same court, even superior to the complete immunity of a person to be let alone is
the inherent which the public has in the orderly administration of justice. Unfortunately, all too
frequently the modesty of witnesses is shocked by forcing them to answer, without any mental
evasion, questions which are put to them; and such a tendency to degrade the witness in public
estimation does not exempt him from the duty of disclosure. Between a sacrifice of the
ascertainment of truth to personal considerations, between a disregard of the public welfare for
refined notions of delicacy, law and justice cannot hesitate.

The protection of accused persons has been carried to such an unwarranted extent that criminal
trials have sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the
lawyers as players, the criminal as guest of honor, and the public as fascinated spectators. Against
such a loose extension of constitutional guaranties we are here prepared to voice our protest.

Fully conscious that we are resolving a most extreme case in a sense, which on first impression is a
shock to one's sensibilities, we must nevertheless enforce the constitutional provision in this
jurisdiction in accord with the policy and reason thereof, undeterred by merely sentimental
influences. Once again we lay down the rule that the constitutional guaranty, that no person shall be
compelled in any criminal case to be a witness against himself, is limited to a prohibition against
compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular
inspection of the body of the accused is permissible. The proviso is that torture of force shall be
avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course, be
decided as cases arise.

It is a reasonable presumption that in an examination by reputable and disinterested physicians due

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

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

XVIII.2FRANCISCO BELTRAN, petitioner,

vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial
Fiscal of Isabela, respondents.

Gregorio P. Formoso and Vicente Formoso for petitioner.

The respondents in their own behalf.

ROMUALDEZ, J.:

This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent judge
ordered him to appear before the provincial fiscal to take dictation in his own handwriting from the
latter.

The order was given upon petition of said fiscal for the purpose of comparing the petitioner's
handwriting and determining whether or not it is he who wrote certain documents supposed to be
falsified.

There is no question as to the facts alleged in the complaint filed in these proceedings; but the
respondents contend that the petitioner is not entitled to the remedy applied for, inasmuch as the
order prayed for by the provincial fiscal and later granted by the court below, and again which the
instant action was brought, is based on the provisions of section 1687 of the Administrative Code
and on the doctrine laid down in the cases of People vs. Badilla (48 Phil., 718); United States vs. Tan
Teng (23 Phil., 145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the
respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in
question.

Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon
motion of the fiscal, may compel witnesses to be present at the investigation of any crime or
misdemeanor. But this power must be exercised without prejudice to the constitutional rights of
persons cited to appear.

And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the constitutional
provision contained in the Jones Law and incorporated in General Orders, No. 58.

Therefore, the question raised is to be decided by examining whether the constitutional provision
invoked by the petitioner prohibits compulsion to execute what is enjoined upon him by the order
against which these proceedings were taken.

Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni se
le obligara a declarar en contra suya en ningun proceso criminal" and has been incorporated in our
Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 ) and section 56.

As to the extent of the privilege, it should be noted first of all, that the English text of the Jones Law,
which is the original one, reads as follows: "Nor shall be compelled in any criminal case to be a
witness against himself."

This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned with
a principle contained both in the Federal constitution and in the constitutions of several states of the
United States, but expressed differently, we should take it that these various phrasings have a
common conception.

In the interpretation of the principle, nothing turns upon the variations of wording in the
constitutional clauses; this much is conceded (ante, par. 2252). It is therefore immaterial that
the witness is protected by one constitution from 'testifying', or by another from 'furnishing
evidence', or by another from 'giving evidence,' or by still another from 'being a witness.'
These various phrasings have a common conception, in respect to the form of the protected
disclosure. What is that conception? (4 Wigmore on Evidence, p. 863, 1923 ed.)

As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or
furnishing of evidence.

The rights intended to be protected by the constitutional provision that no man accused of
crime shall be compelled to be a witness against himself is so sacred, and the pressure
toward their relaxation so great when the suspicion of guilt is strong and the evidence
obscure, that is the duty of courts liberally to construe the prohibition in favor of personal
rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the
well-established doctrine that the constitutional inhibition is directed not merely to giving of
oral testimony, but embraces as well the furnishing of evidence by other means than by word
 of mouth, the divulging, in short, of any fact which the accused has a right to hold secret. (28
R. C. L., paragraph 20, page 434 and notes.) (Emphasis ours.)

The question, then, is reduced to a determination of whether the writing from the fiscal's dictation by
the petitioner for the purpose of comparing the latter's handwriting and determining whether he wrote
certain documents supposed to be falsified, constitutes evidence against himself within the scope
and meaning of the constitutional provision under examination.

Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain
writing or signature is in his own hand, he may on cross-examination be compelled to write in open
court in order that the jury maybe able to compare his handwriting with the one in question.

It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the
defendant, in offering himself as witness in his own behalf, waived his personal privileges.

Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the
defendant to write his name during the hearing, and the latter did so voluntarily.

But the cases so resolved cannot be compared to the one now before us. We are not concerned
here with the defendant, for it does not appear that any information was filed against the petitioner
for the supposed falsification, and still less as it a question of the defendant on trial testifying and
under cross-examination. This is only an investigation prior to the information and with a view to filing
it. And let it further be noted that in the case of Sprouse vs. Com., the defendant performed the act
voluntarily.

We have also come upon a case wherein the handwriting or the form of writing of the defendant was
obtained before the criminal action was instituted against him. We refer to the case of People vs.
Molineux (61 Northeastern Reporter, 286).

Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse vs.
Com., the defendant voluntarily offered to write, to furnish a specimen of his handwriting.

We cite this case particularly because the court there gives prominence to the defendant's right to
decline to write, and to the fact that he voluntarily wrote. The following appears in the body of said
decision referred to (page 307 of the volume cited):

The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to the
latter's request, and we can discover no ground upon which the writings thus produced can
be excluded from the case. (Emphasis ours.)

For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N. W.,
199), that the defendant could not be compelled to write his name, the doctrine being stated as
follows:

The defendant being sworn in his own behalf denied the endorsement.

He was then cross-examined the question in regard to his having signed papers not in the
case, and was asked in particular whether he would not produce signatures made prior to
the note in suit, and whether he would not write his name there in the court. The judge
 excluded all these inquiries, on objection, and it is of these rulings that complaint is made.
The object of the questions was to bring into the case extrinsic signatures, for the purpose of
comparison by the jury, and we think that the judge was correct in ruling against it.

It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says:

Measuring or photographing the party is not within the privilege. Nor it is

the removal or replacement of his garments or shoes. Nor is the requirement that the party
move his body to enable the foregoing things to be done. Requiring him to make specimens
of handwriting is no more than requiring him to move his body . . ." but he cites no case in
support of his last assertion on specimens of handwriting. We note that in the same
paragraph 2265, where said authors treats of "Bodily Exhibition." and under preposition "1. A
great variety of concrete illustrations have been ruled upon," he cites many cases, among
them that of People vs. Molineux (61 N. E., 286) which, as we have seen, has no application
to the case at bar because there the defendant voluntary gave specimens of his handwriting,
while here the petitioner refuses to do so and has even instituted these prohibition
proceedings that he may not be compelled to do so.

Furthermore, in the case before us, writing is something more than moving the body, or the hands,
or the fingers; writing is not a purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish
a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly
states. Except that it is more serious, we believe the present case is similar to that of producing
documents or chattels in one's possession. And as to such production of documents or chattels.
which to our mind is not so serious as the case now before us, the same eminent Professor
Wigmore, in his work cited, says (volume 4, page 864):

. . . 2264. Production or Inspection of Documents and Chattels. 1. It follows that the

production of documents or chattels by a person (whether ordinary witness or party-witness)
in response to a subpoena, or to a motion to order production, or to other form of process
treating him as a witness ( i.e. as a person appearing before a tribunal to furnish testimony
on his moral responsibility for truthtelling), may be refused under the protection of the
privilege; and this is universally conceded. (And he cites the case of People vs. Gardner, 144
N. Y., 119; 38 N.E., 1003)

We say that, for the purposes of the constitutional privilege, there is a similarity between one who is
compelled to produce a document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish evidence against himself.

And we say that the present case is more serious than that of compelling the production of
documents or chattels, because here the witness is compelled to write and create, by means of the
act of writing, evidence which does not exist, and which may identify him as the falsifier. And for this
reason the same eminent author, Professor Wigmore, explaining the matter of the production of
documents and chattels, in the passage cited, adds:

For though the disclosure thus sought be not oral in form, and though the documents or
chattels be already in existence and not desired to be first written and created by testimonial
act or utterance of the person in response to the process, still no line can be drawn short of
any process which treats him as a witness; because in virtue it would be at any time liable to
 make oath to the identity or authenticity or origin of the articles produced. (Ibid., pp. 864-
865.) (Emphasis ours.)

It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's
handwriting is not granted, the crime would go unpunished. Considering the circumstance that the
petitioner is a municipal treasurer, according to Exhibit A, it should not be a difficult matter for the
fiscal to obtained genuine specimens of his handwriting. But even supposing it is impossible to
obtain specimen or specimens without resorting to the means complained herein, that is no reason
for trampling upon a personal right guaranteed by the constitution. It might be true that in some
cases criminals may succeed in evading the hand of justice, but such cases are accidental and do
not constitute the raison d' etre of the privilege. This constitutional privilege exists for the protection
of innocent persons.

With respect to the judgments rendered by this court and cited on behalf of the respondents, it
should be remembered that in the case of People vs. Badilla (48 Phil., 718), it does not appear that
the defendants and other witnesses were questioned by the fiscal against their will, and if they did
not refuse to answer, they must be understood to have waived their constitutional privilege, as they
could certainly do.

The privilege not to give self-incriminating evidence, while absolute when claimed, maybe
waived by any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442, and cases
noted.)

The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the
defendant did not oppose the extraction from his body of the substance later used as evidence
against him.

In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to rest
its decision on the reason of the case rather than on blind adherence to tradition. The said reason of
the case there consisted in that it was the case of the examination of the body by physicians, which
could be and doubtless was interpreted by this court, as being no compulsion of the petitioner
therein to furnish evidence by means of testimonial act. In reality she was not compelled to execute
any positive act, much less a testimonial act; she was only enjoined from something preventing the
examination; all of which is very different from what is required of the petitioner of the present case,
where it is sought to compel him to perform a positive, testimonial act, to write and give a specimen
of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs. Summers, it
was sought to exhibit something already in existence, while in the case at bar, the question deals
with something not yet in existence, and it is precisely sought to compel the petitioner to make,
prepare, or produce by this means, evidence not yet in existence; in short, to create this evidence
which may seriously incriminate him.

Similar considerations suggest themselves to us with regard to the case of United States vs. Ong
Siu Hong (36 Phil., 735), wherein the defendant was not compelled to perform any testimonial act,
but to take out of his mouth the morphine he had there. It was not compelling him to testify or to be a
witness or to furnish, much less make, prepare, or create through a testimonial act, evidence for his
own condemnation.
Wherefore, we find the present action well taken, and it is ordered that the respondents and those
under their orders desist and abstain absolutely and forever from compelling the petitioner to take
down dictation in his handwriting for the purpose of submitting the latter for comparison.

Without express pronouncement as to costs. So ordered.

XVIII.3 CORONA, J.:

At issue in this petition for certiorari is whether or not the Court of

[1]

Appeals (CA) gravely erred in exercising its discretion, amounting to lack or

excess of jurisdiction, in issuing a decision and resolution upholding the
[2] [3]

resolution and order of the trial court, which denied petitioners motion to
[4]

dismiss private respondents complaint for support and directed the parties to
submit themselves to deoxyribonucleic acid (DNA) paternity testing.

Respondents Fe Angela and her son Martin Prollamante sued Martins

alleged biological father, petitioner Arnel L. Agustin, for support and
support pendente litebefore the Regional Trial Court (RTC) of Quezon City,
Branch 106. [5]

In their complaint, respondents alleged that Arnel courted Fe in 1992, after

which they entered into an intimate relationship. Arnel supposedly
impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnels
insistence on abortion, Fe decided otherwise and gave birth to their child out
of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in
Quezon City. The babys birth certificate was purportedly signed by Arnel as
the father. Arnel shouldered the pre-natal and hospital expenses but later
refused Fes repeated requests for Martins support despite his adequate
financial capacity and even suggested to have the child committed for
adoption. Arnel also denied having fathered the child.

On January 19, 2001, while Fe was carrying five-month old Martin at the
Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van, with
the open car door hitting Fes leg. This incident was reported to the police. In
July 2001, Fe was diagnosed with leukemia and has, since then, been
undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for
support. [6]

In his amended answer, Arnel denied having sired Martin because his
affair and intimacy with Fe had allegedly ended in 1998, long before Martins
conception. He claimed that Fe had at least one other secret lover. Arnel
admitted that their relationship started in 1993 but he never really fell in love
with (Fe) not only because (she) had at least one secret lover, a certain Jun,
but also because she proved to be scheming and overly demanding and
possessive. As a result, theirs was a stormy on-and-off affair. What started as
a romantic liaison between two consenting adults eventually turned out to be a
case of fatal attraction where (Fe) became so obsessed with (Arnel), to the
point of even entertaining the idea of marrying him, that she resorted to
various devious ways and means to alienate (him) from his wife and family.
Unable to bear the prospect of losing his wife and children, Arnel terminated
the affair although he still treated her as a friend such as by referring potential
customers to the car aircon repair shop where she worked. Later on, Arnel
[7]

found out that Fe had another erstwhile secret lover. In May 2000, Arnel and
his entire family went to the United States for a vacation. Upon their return in
June 2000, Arnel learned that Fe was telling people that he had impregnated
her. Arnel refused to acknowledge the child as his because their last intimacy
was sometime in 1998. Exasperated, Fe started calling Arnels wife and
[8]

family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and
Country Club parking lot to demand that he acknowledge Martin as his child.
According to Arnel, he could not get through Fe and the discussion became so
heated that he had no alternative but to move on but without bumping or
hitting any part of her body. Finally, Arnel claimed that the signature and the
[9]

community tax certificate (CTC) attributed to him in the acknowledgment of

Martins birth certificate were falsified. The CTC erroneously reflected his
marital status as single when he was actually married and that his birth year
was 1965 when it should have been 1964. [10]

In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having
sired Martin but expressed willingness to consider any proposal to settle the
case.[11]

On July 23, 2002, Fe and Martin moved for the issuance of an order
directing all the parties to submit themselves to DNA paternity testing pursuant
to Rule 28 of the Rules of Court. [12]

Arnel opposed said motion by invoking his constitutional right against self-
incrimination. He also moved to dismiss the complaint for lack of cause of
[13]

action, considering that his signature on the birth certificate was a forgery and
that, under the law, an illegitimate child is not entitled to support if not
recognized by the putative father. In his motion, Arnel manifested that he had
[14]
filed criminal charges for falsification of documents against Fe (I.S. Nos. 02-
5723 and 02-7192) and a petition for cancellation of his name appearing in
Martins birth certificate (docketed as Civil Case No. Q-02-46669). He attached
the certification of the Philippine National Police Crime Laboratory that his
signature in the birth certificate was forged.

The trial court denied the motion to dismiss the complaint and ordered the
parties to submit themselves to DNA paternity testing at the expense of the
applicants. The Court of Appeals affirmed the trial court.

Thus, this petition.

In a nutshell, petitioner raises two issues: (1) whether a complaint for

support can be converted to a petition for recognition and (2) whether DNA
paternity testing can be ordered in a proceeding for support without violating
petitioners constitutional right to privacy and right against self-incrimination.
[15]

The petition is without merit.

First of all, the trial court properly denied the petitioners motion to dismiss
because the private respondents complaint on its face showed that they had a
cause of action against the petitioner. The elements of a cause of action are:
(1) the plaintiffs primary right and the defendants corresponding primary duty,
and (2) the delict or wrongful act or omission of the defendant, by which the
primary right and duty have been violated. The cause of action is determined
not by the prayer of the complaint but by the facts alleged. [16]

In the complaint, private respondents alleged that Fe had amorous

relations with the petitioner, as a result of which she gave birth to Martin out of
wedlock. In his answer, petitioner admitted that he had sexual relations with
Fe but denied that he fathered Martin, claiming that he had ended the
relationship long before the childs conception and birth. It is undisputed and
even admitted by the parties that there existed a sexual relationship between
Arnel and Fe. The only remaining question is whether such sexual relationship
produced the child, Martin. If it did, as respondents have alleged, then Martin
should be supported by his father Arnel. If not, petitioner and Martin are
strangers to each other and Martin has no right to demand and petitioner has
no obligation to give support.

Preliminaries aside, we now tackle the main issues.

 Petitioner refuses to recognize Martin as his own child and denies the
genuineness and authenticity of the childs birth certificate which he
purportedly signed as the father. He also claims that the order and resolution
of the trial court, as affirmed by the Court of Appeals, effectively converted the
complaint for support to a petition for recognition, which is supposedly
proscribed by law. According to petitioner, Martin, as an unrecognized child,
has no right to ask for support and must first establish his filiation in a
separate suit under Article 283 in relation to Article 265 of the Civil Code
[17] [18]

and Section 1, Rule 105 of the Rules of Court.

[19]

The petitioners contentions are without merit.

The assailed resolution and order did not convert the action for support
into one for recognition but merely allowed the respondents to prove their
cause of action against petitioner who had been denying the authenticity of
the documentary evidence of acknowledgement. But even if the assailed
resolution and order effectively integrated an action to compel recognition with
an action for support, such was valid and in accordance with jurisprudence.
In Tayag v. Court of Appeals, we allowed the integration of an action to
[20]

compel recognition with an action to claim ones inheritance:

In Paulino, we held that an illegitimate child, to be entitled to support and

successional rights from the putative or presumed parent, must prove his filiation to
the latter. We also said that it is necessary to allege in the complaint that the putative
father had acknowledged and recognized the illegitimate child because such
acknowledgment is essential to and is the basis of the right to inherit. There being no
allegation of such acknowledgment, the action becomes one to compel recognition
which cannot be brought after the death of the putative father. The ratio
decidendi in Paulino, therefore, is not the absence of a cause of action for failure of
the petitioner to allege the fact of acknowledgment in the complaint, but the
prescription of the action.

Applying the foregoing principles to the case at bar, although petitioner contends that
the complaint filed by herein private respondent merely alleges that the minor Chad
Cuyugan is an illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be considered as one to compel
recognition. Further, that the two causes of action, one to compel recognition and
the other to claim inheritance, may be joined in one complaint is not new in our
jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763
[1922]) wherein we said:

The question whether a person in the position of the present plaintiff can in any event
maintain a complex action to compel recognition as a natural child and at the same
time to obtain ulterior relief in the character of heir, is one which in the opinion of this
court must be answered in the affirmative, provided always that the conditions
justifying the joinder of the two distinct causes of action are present in the particular
case. In other words, there is no absolute necessity requiring that the action to
compel acknowledgment should have been instituted and prosecuted to a
successful conclusion prior to the action in which that same plaintiff seeks
additional relief in the character of heir. Certainly, there is nothing so peculiar to
the action to compel acknowledgment as to require that a rule should be here applied
different from that generally applicable in other cases. x x x

The conclusion above stated, though not heretofore explicitly formulated by this
court, is undoubtedly to some extent supported by our prior decisions. Thus, we have
held in numerous cases, and the doctrine must be considered well settled, that a
natural child having a right to compel acknowledgment, but who has not been in
fact legally acknowledged, may maintain partition proceedings for the division of
the inheritance against his coheirs x x x; and the same person may intervene in
proceedings for the distribution of the estate of his deceased natural father, or mother
x x x. In neither of these situations has it been thought necessary for the plaintiff to
show a prior decree compelling acknowledgment. The obvious reason is that in
partition suits and distribution proceedings the other persons who might take by
inheritance are before the court; and the declaration of heirship is appropriate to such
proceedings. (Underscoring supplied)

Although the instant case deals with support rather than inheritance, as
in Tayag, the basis or rationale for integrating them remains the same.
Whether or not respondent Martin is entitled to support depends completely
on the determination of filiation. A separate action will only result in a
multiplicity of suits, given how intimately related the main issues in both cases
are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to
these proceedings.

On the second issue, petitioner posits that DNA is not recognized by this
Court as a conclusive means of proving paternity. He also contends that
compulsory testing violates his right to privacy and right against self-
incrimination as guaranteed under the 1987 Constitution. These contentions
have no merit.

Given that this is the very first time that the admissibility of DNA testing as
a means for determining paternity has actually been the focal issue in a
controversy, a brief historical sketch of our past decisions featuring or
mentioning DNA testing is called for.

In the 1995 case of People v. Teehankee where the appellant was

[21]

convicted of murder on the testimony of three eyewitnesses, we stated as

an obiter dictumthat while eyewitness identification is significant, it is not as
accurate and authoritative as the scientific forms of identification evidence
such as the fingerprint or the DNA test result (emphasis supplied).

Our faith in DNA testing, however, was not quite so steadfast in the
previous decade. In Pe Lim v. Court of Appeals, promulgated in 1997, we
[22]

cautioned against the use of DNA because DNA, being a relatively new
science, (had) not as yet been accorded official recognition by our courts.
Paternity (would) still have to be resolved by such conventional evidence as
the relevant incriminating acts, verbal and written, by the putative father.

In 2001, however, we opened the possibility of admitting DNA as evidence

of parentage, as enunciated in Tijing v. Court of Appeals: [23]

A final note. Parentage will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately, we have now the facility
and expertise in using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing using short
tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and the other from the
father. The DNA from the mother, the alleged father and child are analyzed to
establish parentage. Of course, being a novel scientific technique, the use of DNA test
as evidence is still open to challenge. Eventually, as the appropriate case comes,
courts should not hesitate to rule on the admissibility of DNA evidence. For it was
said, that courts should apply the results of science when competently obtained in aid
of situations presented, since to reject said result is to deny progress.

The first real breakthrough of DNA as admissible and authoritative

evidence in Philippine jurisprudence came in 2002 with our en banc decision
in People v. Vallejo where the rape and murder victims DNA samples from
[24]

the bloodstained clothes of the accused were admitted in evidence. We

reasoned that the purpose of DNA testing (was) to ascertain whether an
association exist(ed) between the evidence sample and the reference sample.
The samples collected (were) subjected to various chemical processes to
establish their profile.

A year later, in People v. Janson, we acquitted the accused charged with

[25]

rape for lack of evidence because doubts persist(ed) in our mind as to who
(were) the real malefactors. Yes, a complex offense (had) been perpetrated
but who (were) the perpetrators? How we wish we had DNA or other scientific
evidence to still our doubts!

In 2004, in Tecson, et al. v. COMELEC where the Court en banc was

[26]

faced with the issue of filiation of then presidential candidate Fernando Poe
Jr., we stated:

In case proof of filiation or paternity would be unlikely to satisfactorily establish or

would be difficult to obtain, DNA testing, which examines genetic codes obtained
from body cells of the illegitimate child and any physical residue of the long dead
parent could be resorted to. A positive match would clear up filiation or paternity. In
Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA
testing

Moreover, in our en banc decision in People v. Yatar, we affirmed the

[27]

conviction of the accused for rape with homicide, the principal evidence for
which included DNA test results. We did a lengthy discussion of DNA, the
process of DNA testing and the reasons for its admissibility in the context of
our own Rules of Evidence:

Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in

all living organisms. A persons DNA is the same in each cell and it does not change
throughout a persons lifetime; the DNA in a persons blood is the same as the DNA
found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin
tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in
human genetic structure, no two individuals have the same DNA, with the notable
exception of identical twins.

xxx xxx xxx

In assessing the probative value of DNA evidence, courts should consider, inter alia,
the following factors: how the samples were collected, how they were handled, the
possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether proper standards and procedures were followed in conducting the
tests, and the qualification of the analyst who conducted the tests.

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the
prosecution as an expert witness on DNA print or identification techniques. Based on
Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of
appellant are identical to that of the extracts subject of examination. The blood sample
taken from the appellant showed that he was of the following gene types: vWA 15/19,
TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken
from the victims vaginal canal. Verily, a DNA match exists between the semen found
in the victim and the blood sample given by the appellant in open court during the
course of the trial.

Admittedly, we are just beginning to integrate these advances in science and

technology in the Philippine criminal justice system, so we must be cautious as we
traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth
of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the
prevailing doctrine in the U.S. has proven instructive.

In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that
pertinent evidence based on scientifically valid principles could be used as long as it
was relevant and reliable. Judges, under Daubert, were allowed greater discretion over
which testimony they would allow at trial, including the introduction of new kinds of
scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as
to induce belief in its existence or non-existence. Applying the Daubert test to the
case at bar, the DNA evidence obtained through PCR testing and utilizing STR
analysis, and which was appreciated by the court a quo is relevant and reliable since it
is reasonably based on scientifically valid principles of human genetics and molecular
biology.

Significantly, we upheld the constitutionality of compulsory DNA testing

and the admissibility of the results thereof as evidence. In that case, DNA
samples from semen recovered from a rape victims vagina were used to
positively identify the accused Joel Kawit Yatar as the rapist. Yatar claimed
that the compulsory extraction of his blood sample for DNA testing, as well as
the testing itself, violated his right against self-incrimination, as embodied in
both Sections 12 and 17 of Article III of the Constitution. We addressed this as
follows:

The contention is untenable. The kernel of the right is not against all compulsion, but
against testimonial compulsion. The right against self-incrimination is simply against
the legal process of extracting from the lips of the accused an admission of guilt. It
does not apply where the evidence sought to be excluded is not an incrimination but
as part of object evidence.

Over the years, we have expressly excluded several kinds of object

evidence taken from the person of the accused from the realm of self-
incrimination. These include photographs, hair, and other bodily
[28] [29]

substances. We have also declared as constitutional several procedures

[30]

performed on the accused such as pregnancy tests for women accused of

adultery, expulsion of morphine from ones mouth and the tracing of ones
[31] [32]

foot to determine its identity with bloody footprints. In Jimenez v. Caizares,

[33]

we even authorized the examination of a womans genitalia, in an action for

[34]

annulment filed by her husband, to verify his claim that she was impotent, her
orifice being too small for his penis. Some of these procedures were, to be
sure, rather invasive and involuntary, but all of them were constitutionally
sound. DNA testing and its results, per our ruling in Yatar, are now similarly[35]

acceptable.

Nor does petitioners invocation of his right to privacy persuade us. In Ople
v. Torres, where we struck down the proposed national computerized
[36]

identification system embodied in Administrative Order No. 308, we said:

In no uncertain terms, we also underscore that the right to privacy does not bar all
incursions into individual privacy. The right is not intended to stifle scientific and
technological advancements that enhance public service and the common good...
Intrusions into the right must be accompanied by proper safeguards that enhance
public service and the common good.

Historically, it has mostly been in the areas of legality of searches and

seizures, and the infringement of privacy of communication where the
[37] [38]

constitutional right to privacy has been critically at issue. Petitioners case

involves neither and, as already stated, his argument that his right against
self-incrimination is in jeopardy holds no water. His hollow invocation of his
constitutional rights elicits no sympathy here for the simple reason that they
are not in any way being violated. If, in a criminal case, an accused whose
very life is at stake can be compelled to submit to DNA testing, we see no
reason why, in this civil case, petitioner herein who does not face such dire
consequences cannot be ordered to do the same.

DNA paternity testing first came to prominence in the United States, where
it yielded its first official results sometime in 1985. In the decade that followed,
DNA rapidly found widespread general acceptance. Several cases decided
[39]

by various State Supreme Courts reflect the total assimilation of DNA testing
into their rules of procedure and evidence.

The case of Wilson v. Lumb shows that DNA testing is so commonly

[40]

accepted that, in some instances, ordering the procedure has become a

ministerial act. The Supreme Court of St. Lawrence County, New York allowed
a party who had already acknowledged paternity to subsequently challenge
his prior acknowledgment. The Court pointed out that, under the law,
specifically Section 516 of the New York Family Court Act, the Family Court
examiner had the duty, upon receipt of the challenge, to order DNA tests: [41]

516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed

pursuant to section one hundred eleven-k of the social services law or section four
thousand one hundred thirty-five-b of the public health law shall establish the
paternity of and liability for the support of a child pursuant to this act. Such
acknowledgment must be reduced to writing and filed pursuant to section four
thousand one hundred thirty-five-b of the public health law with the registrar of the
district in which the birth occurred and in which the birth certificate has been filed. No
further judicial or administrative proceedings are required to ratify an unchallenged
acknowledgment of paternity.

(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-

k of the social services law or section four thousand one hundred thirty-five-b of the
public health law may be rescinded by either signators filing of a petition with the
court to vacate the acknowledgment within the earlier of sixty days of the date of
signing the acknowledgment or the date of an administrative or a judicial proceeding
(including a proceeding to establish a support order) relating to the child in which
either signator is a party. For purposes of this section, the "date of an administrative or
a judicial proceeding" shall be the date by which the respondent is required to answer
the petition. After the expiration of sixty days of the execution of the
acknowledgment, either signator may challenge the acknowledgment of paternity in
court only on the basis of fraud, duress, or material mistake of fact, with the burden of
proof on the party challenging the voluntary acknowledgment. Upon receiving a
partys challenge to an acknowledgment, the court shall order genetic marker
tests or DNA tests for the determination of the childs paternity and shall make a
finding of paternity, if appropriate, in accordance with this article. Neither
signators legal obligations, including the obligation for child support arising from the
acknowledgment, may be suspended during the challenge to the acknowledgment
except for good cause as the court may find. If a party petitions to rescind an
acknowledgment and if the court determines that the alleged father is not the father of
the child, or if the court finds that an acknowledgment is invalid because it was
executed on the basis of fraud, duress, or material mistake of fact, the court shall
vacate the acknowledgment of paternity and shall immediately provide a copy of the
order to the registrar of the district in which the childs birth certificate is filed and also
to the putative father registry operated by the department of social services pursuant to
section three hundred seventy-two-c of the social services law. In addition, if the
mother of the child who is the subject of the acknowledgment is in receipt of child
support services pursuant to title six-A of article three of the social services law, the
court shall immediately provide a copy of the order to the child support enforcement
unit of the social services district that provides the mother with such services.

(c) A determination of paternity made by any other state, whether established through
the parents acknowledgment of paternity or through an administrative or judicial
process, must be accorded full faith and credit, if and only if such acknowledgment
meets the requirements set forth in section 452(a)(7) of the social security act.

(emphasis supplied)

DNA testing also appears elsewhere in the New York Family Court Act: [42]

532. Genetic marker and DNA tests; admissibility of records or reports of test results;
costs of tests.

a) The court shall advise the parties of their right to one or more genetic marker tests
or DNA tests and, on the courts own motion or the motion of any party, shall order the
mother, her child and the alleged father to submit to one or more genetic marker or
DNA tests of a type generally acknowledged as reliable by an accreditation body
designated by the secretary of the federal department of health and human services
and performed by a laboratory approved by such an accreditation body and by the
commissioner of health or by a duly qualified physician to aid in the determination of
whether the alleged father is or is not the father of the child. No such test shall be
ordered, however, upon a written finding by the court that it is not in the best
interests of the child on the basis of res judicata, equitable estoppel, or the
presumption of legitimacy of a child born to a married woman. The record or
report of the results of any such genetic marker or DNA test ordered pursuant to this
section or pursuant to section one hundred eleven-k of the social services law shall be
received in evidence by the court pursuant to subdivision (e) of rule forty-five
hundred eighteen of the civil practice law and rules where no timely objection in
writing has been made thereto and that if such timely objections are not made, they
shall be deemed waived and shall not be heard by the court. If the record or report
of the results of any such genetic marker or DNA test or tests indicate at least a
ninety-five percent probability of paternity, the admission of such record or
report shall create a rebuttable presumption of paternity, and shall establish, if
unrebutted, the paternity of and liability for the support of a child pursuant to
this article and article four of this act.

(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a
report made as provided in subdivision (a) of this section may be received in evidence
pursuant to rule forty-five hundred eighteen of the civil practice law and rules if
offered by any party.

(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in
the first instance, paid by the moving party. If the moving party is financially unable
to pay such cost, the court may direct any qualified public health officer to conduct
such test, if practicable; otherwise, the court may direct payment from the funds of the
appropriate local social services district. In its order of disposition, however, the court
may direct that the cost of any such test be apportioned between the parties according
to their respective abilities to pay or be assessed against the party who does not
prevail on the issue of paternity, unless such party is financially unable to pay.
(emphasis supplied)

In R.E. v. C.E.W., a decision of the Mississippi Supreme Court, DNA tests

[43]

were used to prove that H.W., previously thought to be an offspring of the

marriage between A.C.W. and C.E.W., was actually the child of R.E. with
whom C.E.W. had, at the time of conception, maintained an adulterous
relationship.
 In Erie County Department of Social Services on behalf of Tiffany M.H. v.
Greg G., the 4th Department of the New York Supreme Courts Appellate
[44]

Division allowed G.G., who had been adjudicated as T.M.H.s father by default,
to have the said judgment vacated, even after six years, once he had shown
through a genetic marker test that he was not the childs father. In this case,
G.G. only requested the tests after the Department of Social Services, six
years after G.G. had been adjudicated as T.M.H.s father, sought an increase
in his support obligation to her.

In Greco v. Coleman, the Michigan Supreme Court while ruling on the

[45]

constitutionality of a provision of law allowing non-modifiable support

agreements pointed out that it was because of the difficulty of determining
paternity before the advent of DNA testing that such support agreements were
necessary:

As a result of DNA testing, the accuracy with which paternity can be proven has
increased significantly since the parties in this lawsuit entered into their support
agreement(current testing methods can determine the probability of paternity to
99.999999% accuracy). However, at the time the parties before us entered into the
disputed agreement, proving paternity was a very significant obstacle to an
illegitimate child's access to child support. The first reported results of
modern DNA paternity testing did not occur until 1985. ("In fact, since its first
reported results in 1985, DNA matching has progressed to 'general acceptance in less
than a decade'"). Of course, while prior blood-testing methods could exclude some
males from being the possible father of a child, those methods could not affirmatively
pinpoint a particular male as being the father. Thus, when the settlement agreement
between the present parties was entered in 1980, establishing paternity was a far more
difficult ordeal than at present. Contested paternity actions at that time were often no
more than credibility contests. Consequently, in every contested paternity action,
obtaining child support depended not merely on whether the putative father was, in
fact, the child's biological father, but rather on whether the mother could prove to a
court of law that she was only sexually involved with one man--the putative father.
Allowing parties the option of entering into private agreements in lieu of proving
paternity eliminated the risk that the mother would be unable meet her burden of
proof.

It is worth noting that amendments to Michigans Paternity law have

included the use of DNA testing: [46]
722.716 Pretrial proceedings; blood or tissue typing determinations as to mother,
child, and alleged father; court order; refusal to submit to typing or identification
profiling; qualifications of person conducting typing or identification profiling;
compensation of expert; result of typing or identification profiling; filing summary
report; objection; admissibility; presumption; burden of proof; summary disposition.

Sec. 6.

(1) In a proceeding under this act before trial, the court, upon application made
by or on behalf of either party, or on its own motion, shall order that the mother,
child, and alleged father submit to blood or tissue typing determinations, which
may include, but are not limited to, determinations of red cell antigens, red cell
isoenzymes, human leukocyte antigens, serum proteins, or DNA identification
profiling, to determine whether the alleged father is likely to be, or is not, the
father of the child. If the court orders a blood or tissue typing
or DNA identification profiling to be conducted and a party refuses to submit to
the typing or DNA identification profiling, in addition to any other remedies
available, the court may do either of the following:

(a) Enter a default judgment at the request of the appropriate party.

(b) If a trial is held, allow the disclosure of the fact of the refusal unless good
cause is shown for not disclosing the fact of refusal.

(2) A blood or tissue typing or DNA identification profiling shall be conducted by a

person accredited for paternity determinations by a nationally recognized scientific
organization, including, but not limited to, the American association of blood banks.

xxx xxx xxx

(5) If the probability of paternity determined by the qualified person described in

subsection (2) conducting the blood or tissue typing or DNA identification
profiling is 99% or higher, and the DNA identification profile and summary
report are admissible as provided in subsection (4), paternity is presumed. If the
results of the analysis of genetic testing material from 2 or more persons indicate
a probability of paternity greater than 99%, the contracting laboratory shall
conduct additional genetic paternity testing until all but 1 of the putative fathers
is eliminated, unless the dispute involves 2 or more putative fathers who have
identical DNA.
(6) Upon the establishment of the presumption of paternity as provided in subsection
(5), either party may move for summary disposition under the court rules. this section
does not abrogate the right of either party to child support from the date of birth of the
child if applicable under section 7. (emphasis supplied)

In Rafferty v. Perkins, the Supreme Court of Mississippi ruled that DNA

[47]

test results showing paternity were sufficient to overthrow the presumption of

legitimacy of a child born during the course of a marriage:

The presumption of legitimacy having been rebutted by the results of the blood test
eliminating Perkins as Justin's father, even considering the evidence in the light most
favorable to Perkins, we find that no reasonable jury could find that Easter is not
Justin's father based upon the 99.94% probability of paternity concluded by the DNA
testing.

In S.J.F. and J.C.F. v. R.C.W., the North Dakota Supreme Court upheld
[48]

an order for genetic testing given by the Court of Appeals, even after trial on
the merits had concluded without such order being given. Significantly, when
J.C.F., the mother, first filed the case for paternity and support with the District
Court, neither party requested genetic testing. It was only upon appeal from
dismissal of the case that the appellate court remanded the case and ordered
the testing, which the North Dakota Supreme Court upheld.

The case of Kohl v. Amundson, decided by the Supreme Court of South

[49]

Dakota, demonstrated that even default judgments of paternity could be

vacated after the adjudicated father had, through DNA testing, established
non-paternity. In this case, Kohl, having excluded himself as the father of
Amundsons child through DNA testing, was able to have the default judgment
against him vacated. He then obtained a ruling ordering Amundson to
reimburse him for the amounts withheld from his wages for child support. The
Court said (w)hile Amundson may have a remedy against the father of the
child, she submit(ted) no authority that require(d) Kohl to support her child.
Contrary to Amundson's position, the fact that a default judgment was entered,
but subsequently vacated, (did) not foreclose Kohl from obtaining a money
judgment for the amount withheld from his wages.

In M.A.S. v. Mississippi Dept. of Human Services, another case decided

[50]

by the Supreme Court of Mississippi, it was held that even if paternity was
established through an earlier agreed order of filiation, child support and
visitation orders could still be vacated once DNA testing established someone
other than the named individual to be the biological father. The Mississippi
High Court reiterated this doctrine in Williams v. Williams. [51]

The foregoing considered, we find no grave abuse of discretion on the part

of the public respondent for upholding the orders of the trial court which both
denied the petitioners motion to dismiss and ordered him to submit himself for
DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy
of certiorari is only available when any tribunal, board or officer has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any
plain, speedy and adequate remedy in the ordinary course of law. In Land [52]

Bank of the Philippines v. the Court of Appeals where we dismissed a special

[53]

civil action for certiorari under Rule 65, we discussed at length the nature of
such a petition and just what was meant by grave abuse of discretion:

Grave abuse of discretion implies such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction or, in other words, where the power is
exercised in an arbitrary manner by reason of passion, prejudice, or personal
hostility, and it must be so patent or gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.

The special civil action for certiorari is a remedy designed for the correction of errors
of jurisdiction and not errors of judgment. The raison detre for the rule is when a
court exercises its jurisdiction, an error committed while so engaged does not deprive
it of the jurisdiction being exercised when the error is committed. If it did, every error
committed by a court would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. In such a scenario, the administration of justice
would not survive. Hence, where the issue or question involved affects the wisdom or
legal soundness of the decisionnot the jurisdiction of the court to render said
decisionthe same is beyond the province of a special civil action for certiorari.

The proper recourse of the aggrieved party from a decision of the CA is a petition for
review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand,
if the error subject of the recourse is one of jurisdiction, or the act complained of was
perpetrated by a quasi-judicial officer or agency with grave abuse of discretion
amounting to lack or excess of jurisdiction, the proper remedy available to the
aggrieved party is a petition for certiorari under Rule 65 of the said Rules. (emphasis
supplied)

In the instant case, the petitioner has in no way shown any arbitrariness,
passion, prejudice or personal hostility that would amount to grave abuse of
discretion on the part of the Court of Appeals. The respondent court acted
entirely within its jurisdiction in promulgating its decision and resolution, and
any error made would have only been an error in judgment. As we have
discussed, however, the decision of the respondent court, being firmly
anchored in law and jurisprudence, was correct.

Epilogue

For too long, illegitimate children have been marginalized by fathers who
choose to deny their existence. The growing sophistication of DNA testing
technology finally provides a much needed equalizer for such ostracized and
abandoned progeny. We have long believed in the merits of DNA testing and
have repeatedly expressed as much in the past. This case comes at a perfect
time when DNA testing has finally evolved into a dependable and authoritative
form of evidence gathering. We therefore take this opportunity to forcefully
reiterate our stand that DNA testing is a valid means of determining paternity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED.

The Court of Appeals decision dated January 28, 2004 in CA-G.R. SP No.
80961 is hereby AFFIRMED in toto.

Costs against petitioner.

SO ORDERED.

XVIII.4 SANCHEZ, J.:

The thrust of petitioner's case presented in his original and supplementary petitions invoking
jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon
the ground that in the trial which resulted in his conviction1 he was denied his constitutional right not
to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be
granted the alternative remedies of certiorari to strike down the two resolutions of the Court of
Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to
forward his appeal to this Court for the reason that he was raising purely questions of law.
The indictment in the court below the third amended information upon which the judgment of
conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1)
Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its
accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez,
Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo
alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe,
Charlie Doe and Paul Doe.2

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

Upon arraignment, all the accused, except the three Does who have not been identified nor
apprehended, pleaded not guilty. 1wph1.t

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

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

COURT:

The parties may proceed.

FISCAL GRECIA:

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

ATTY. CARBON [Counsel for petitioner Chavez]:

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

COURT:

On what ground, counsel? .

ATTY. CARBON:

On the ground that I have to confer with my client. It is really surprising that at this stage,
without my being notified by the Fiscal, my client is being presented as witness for the
prosecution. I want to say in passing that it is only at this very moment that I come to know
about this strategy of the prosecution.

COURT (To the Fiscal):

You are not withdrawing the information against the accused Roger Chavez by making [him
a] state witness?.

FISCAL GRECIA:

I am not making him as state witness, Your Honor.

I am only presenting him as an ordinary witness.

ATTY. CARBON:

As a matter of right, because it will incriminate my client, I object.

COURT:

The Court will give counsel for Roger Chavez fifteen minutes within which to confer and
explain to his client about the giving of his testimony.

xxx xxx xxx

COURT: [after the recess]

Are the parties ready? .

FISCAL:

We are ready to call on our first witness, Roger Chavez.

ATTY. CARBON:

As per understanding, the proceeding was suspended in order to enable me to confer with
my client.

I conferred with my client and he assured me that he will not testify for the prosecution this
morning after I have explained to him the consequences of what will transpire.

COURT:

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-
stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to
interpose his objection and the court will sustain him if and when the court feels that the
answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions
which would incriminate him.
But surely, counsel could not object to have the accused called on the witnessstand.

ATTY. CARBON:

I submit.

xxx xxx xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

MAY IT PLEASE THE COURT:

This incident of the accused Roger Chavez being called to testify for the prosecution is
something so sudden that has come to the knowledge of this counsel.

This representation has been apprised of the witnesses embraced in the information.

For which reason I pray this court that I be given at least some days to meet whatever
testimony this witness will bring about. I therefore move for postponement of today's hearing.

COURT:

The court will give counsel time within which to prepare his cross-examination of this
witness.

ATTY. CRUZ:

I labored under the impression that the witnesses for the prosecution in this criminal case are
those only listed in the information.

I did not know until this morning that one of the accused will testify as witness for the
prosecution.

COURT:

That's the reason why the court will go along with counsels for the accused and will give
them time within which to prepare for their cross-examination of this witness.

The court will not defer the taking of the direct examination of the witness.

Call the witness to the witness stand.

EVIDENCE FOR THE PROSECUTION

ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the
Manila Police Department headquarters, after being duly sworn according to law, declared
as follows:
 ATTY. IBASCO [Counsel for defendant Luis Asistio]:

WITH THE LEAVE OF THE COURT:

This witness, Roger Chavez is one of the accused in this case No. Q-5311.

The information alleges conspiracy. Under Rule 123, Section 12, it states:

'The act or declaration of a conspirator relating to the conspiracy and during its existence,
may be given in evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration.'

COURT:

That is premature, counsel. Neither the court nor counsels for the accused know what
the prosecution events to establish by calling this witness to the witness stand.

ATTY. IBASCO:

I submit.

COURT: The Fiscal may proceed.3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal
Grecia".

Came the judgment of February 1, 1965. The version of the prosecution as found by the court below
may be briefly narrated as follows:

A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a
Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was
in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered
affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a
barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind
about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for
P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to
see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion,
already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he
had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez'
reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and,
after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell
it to a third person for a profit. Chavez known to be a car agent was included in the plan. He
furnished the name of Johnson Lee who was selling his Thunderbird. 1wph1.t

In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment.
Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54.
Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the
wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they went to
Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter,
they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed
of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok
the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto.

As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the
Thunderbird car to that place. The deed of sale and other papers remained in the pockets of
Johnson Lee.

At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the
Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the
restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note
bearer.4

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose
for pictures with some fans and come back, again left never to return. So did Chavez, who
disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate
Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it
was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the
already repainted car and impounded it.

Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at
Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio
handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the
transaction. On the 14th of November, the registration of the car was transferred in the name of
Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.

From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be
condensed as follows:

In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter
informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00
and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00.

To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena
Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was
exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an
agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked
the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should
not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to
give the money the nextday as long as the check would be left with them and Sumilang would sign a
promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money
the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because
P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.

About the end of October or at the beginning of November, Chavez asked Sumilang for another
P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they
accommodate him once more. He also sent a check, again without funds. Baltazar gave the money
after verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if
Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and
another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay
out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was
already bought by a Chinese who would be the vendor.

The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus
P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part
of the price to Chavez.

At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang,
also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned
the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and
advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual,
offered to make out a receipt for Chavez to sign.

After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed
him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the
receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by
Sumilang.

When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the
registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in
the car with his driver at the wheel.

Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at
Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio
offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his
friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio
tendered a down payment of P1,000.00; the balance he promised to pay the next day after
negotiating with some financing company. Before said balance could be paid, the car was
impounded.

The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles'
corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio
whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of
conspiracy was discounted.

As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo
Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was
not identified by Johnson Lee in court.

As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any
defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt
beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court further
continued:

It is not improbable that true to the saying that misery loves company Roger Chavez tried to
drag his co-accused down with him by coloring his story with fabrications which he expected
 would easily stick together what with the newspaper notoriety of one and the sensationalism
caused by the other. But Roger Chavez' accusations of Asistio's participation is utterly
uncorroborated. And coming, as it does, from a man who has had at least two convictions for
acts not very different from those charged in this information, the Court would be too
gullible if it were to give full credence to his words even if they concerned a man no less
notorious than himself.7

The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no
one but Roger Chavez to blame.

The sum of all these is that the trial court freed all the accused except Roger Chavez who was found
guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to
suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not
more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun
Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of
insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The
Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang,
who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay
P21,500.00, representing the balance of the contract price for the car.

The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of
Appeals.

On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez,
to show cause within ten days from notice why Chavez' appeal should not be considered abandoned
and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967
and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed.

On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she
were allowed to file appellant's brief she would go along with the factual findings of the court below
but will show however that its conclusion is erroneous.8

On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the
appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a
per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the
City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the
Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment
below, and ordered remand of the case to the Quezon City court for execution of judgment.

It was at this stage that the present proceedings were commenced in this Court.

Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to
grips with the main problem presented.

We concentrate attention on that phase of the issues which relates petitioner's assertion that he was
compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we
need not reach the others; in which case, these should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right
constitutionally entrenched against self-incrimination. He asks that the hand of this Court be made
to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider
the constitutional injunction that "No person shall be compelled to be a witness against
himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the
defendant shall be entitled: "(e) To be exempt from being a witness against himself." .

It has been said that forcing a man to be a witness against himself is at war with "the fundamentals
of a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide
the pure atmosphere of political liberty and personal freedom." 11 Mr. Justice Abad Santos recounts
the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum
accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of
interrogating accused persons, which has long obtained in the continental system, and, until the
expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the
protection of the people against the exercise of arbitrary power, was not uncommon even in
England. While the admissions of confessions of the prisoner, when voluntarily and freely made,
have always ranked high in the scale of incriminating evidence, if an accused person be asked to
explain his apparent connection with a crime under investigation, the ease with which the questions
put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to
browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal
contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to
a demand for its total abolition. The change in the English criminal procedure in that particular
seems to be founded upon no statute and no judicial opinion, but upon a general and silent
acquiescence of the courts in a popular demand. But, however adopted, it has become firmly
embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the
ancient system impress themselves upon the minds of the American colonists that the states, with
one accord, made a denial of the right to question an accused person a part of their fundamental
law, so that a maxim which in England was a mere rule of evidence, became clothed in this country
with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40
Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was
recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old
Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the
United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the
accused person"; and as having been adopted in the Philippines "to wipe out such practices as
formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations,
and to give testimony regarding the offenses with which they were charged."

So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the
discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive
right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the
United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional
privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16

It is in this context that we say that the constitutional guarantee may not be treated with unconcern.
To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Taada
and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs.
Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad
grounds of public policy and humanity; of policy because it would place the witness against the
strongest temptation to commit perjury, and of humanity because it would be to extort a confession
of truth by a kind of duress every species and degree of which the law abhors. 17

Therefore, the court may not extract from a defendant's own lips and against his will an admission of
his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts
usable against him as a confession of the crime or the tendency of which is to prove the commission
of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the
witness stand with undiluted, unfettered exercise of his own free, genuine will.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the
product of unintentional statements. Pressure which operates to overbear his will, disable him from
making a free and rational choice, or impair his capacity for rational judgment would in our opinion
be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the
defendant." 18

2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal
case. He was called by the prosecution as the first witness in that case to testify for the People
during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination.
This he broadened by the clear cut statement that he will not testify. But petitioner's protestations
were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody
to act as witness on the witness stand including the accused," and that defense counsel "could not
object to have the accused called on the witness stand." The cumulative impact of all these is that
accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against
himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law,
and jurisprudence.

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an
ordinary witness may be compelled to take the witness stand and claim the privilege as each
question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to
take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of
calling an accused as a witness for the People would be to incriminate him. 21 The rule positively
intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the
missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a
joint trial.23

And the guide in the interpretation of the constitutional precept that the accused shall not be
compelled to furnish evidence against himself "is not the probability of the evidence but it is
the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate
petitioner with these words:.

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-
stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to
interpose his objection and the court will sustain him if and when the court feels that the
answer of this witness to the question would incriminate him.
 Counsel has all the assurance that the court will not require the witness to answer questions
which would incriminate him.

But surely, counsel could not object to have the accused called on the witness stand.

Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII
Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his bosom,
he is safe; but draw it from thence, and he is exposed" to conviction.

The judge's words heretofore quoted "But surely counsel could not object to have the accused
called on the witness stand" wielded authority. By those words, petitioner was enveloped by a
coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human
nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no
genuine consent underlay submission to take the witness stand. Constitutionally sound consent was
absent.

3. Prejudice to the accused for having been compelled over his objections to be a witness for the
People is at once apparent. The record discloses that by leading questions Chavez, the accused,
was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the
afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez),
Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to
narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27

The decision convicting Roger Chavez was clearly of the view that the case for the People was built
primarily around the admissions of Chavez himself. The trial court described Chavez as the "star
witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly
from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense.
There are the unequivocal statements in the decision that "even accused Chavez" identified "the
very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness
for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-
confessed culprit". 1wph1.t

4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate
himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has
waived his right. He did not volunteer to take the stand and in his own defense; he did not offer
himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner
nevertheless answered the questions inspite of his fear of being accused of perjury or being put
under contempt, this circumstance cannot be counted against him. His testimony is not of his own
choice. To him it was a case of compelled submission. He was a cowed participant in proceedings
before a judge who possessed the power to put him under contempt had he chosen to remain silent.
Nor could he escape testifying. The court made it abundantly clear that his testimony at least on
direct examination would be taken right then and thereon the first day of the trial.

It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no
objections to questions propounded to him were made. Here involve is not a mere question of self-
incrimination. It is a defendant's constitutional immunity from being called to testify against himself.
And the objection made at the beginning is a continuing one. 1wph1.t
There is therefore no waiver of the privilege. "To be effective, a waiver must be certain
and unequivocal, and intelligently, understandably, and willingly made; such waiver following only
where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to
have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs.
Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption against
waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of
fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known
right or privilege." Renuntiatio non praesumitur.

The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to,
make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt,
still, his original claim remains valid. For the privilege, we say again, is a rampart that gives
protection - even to the guilty. 30

5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is
traditionally considered as an exceptional remedy to release a person whose liberty is illegally
restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in
the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction
of the accused whose fundamental right was violated. 34 That void judgment of conviction may be
challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may
issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus,
failure by the accused to perfect his appeal before the Court of Appeals does not preclude a
recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained
in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally
given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was
given the nod in that case, involving a violation of another constitutional right, in this wise:

Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance
of Counsel, compliance with this constitutional mandate is an essential jurisdictional
prerequisite to a Federal Court's authority. When this right is properly waived, the assistance
of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to
conviction and sentence. If the accused, however, is not represented by Counsel and has
not competently and intelligently waived his constitutional right, the Sixth Amendment stands
as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's
jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to
failure to complete the court as the Sixth Amendment requires by providing Counsel for
an accused who is unable to obtain Counsel, who has not intelligently waived this
constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth
Amendment is not complied with, the court no longer has jurisdiction to proceed. The
judgment of conviction pronounced by a court without jurisdiction is void, and
one imprisoned thereunder may obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case
presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule
102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement
or detention by which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto.
Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in
legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars
any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to
enforce it may be responsible as trespassers. ... " 42

6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of
conviction for another offense. We should guard against the improvident issuance of an order
discharging a petitioner from confinement. The position we take here is that petitioner herein is
entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First
Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of
the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner
Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch,
in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et
al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or
detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the
Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed
shall be effected when such other cause or reason ceases to exist.

No costs. So ordered.

XVIII.5 CONCEPCION, J.:

This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the Hon.
Ruperto Kapunan, Jr., as Judge of the Court of First Instance of Manila, from further proceeding in
Criminal Case No. 60111 of said court, and to set aside an order of said respondent, as well as the
whole proceedings in said criminal case. .

On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of
Nation Defense a letter-complaint charging petitioner Manuel Cabal, then Chief of Staff of the Armed
Forces of the Philippines, with "graft, corrupt practices, unexplained wealth, conduct unbecoming of
an officer and gentleman dictatorial tendencies, giving false statements of his as sets and liabilities
in 1958 and other equally reprehensible acts". On September 6, 1961, the President of the
Philippines created a committee of five (5) members, consisting of former Justice Marceliana R.
Montemayor, as Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug, and
Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the charge of unexplained
wealth contained in said letter-complaint and submit its report and recommendations as soon as
possible. At the beginning of the investigation, on September 15, 1961, the Committee, upon request
of complainant Col. Maristela, or considered petitioner herein to take the witness stand and be sworn
to as witness for Maristela, in support of his aforementioned charge of unexplained wealth.
Thereupon, petitioner objected, personally and through counsel, to said request of Col. Maristela
and to the aforementioned order of the Committee, invoking his constitutional right against self-
incrimination. The Committee insisted that petitioner take the witness stand and be sworn to, subject
to his right to refuse to answer such questions as may be incriminatory. This notwithstanding,
petitioner respectfully refused to be sworn to as a witness to take the witness stand. Hence, in a
communication dated September 18, 1961, the Committee referred the matter to respondent City
Fiscal of Manila, for such action as he may deem proper. On September 28, 1961, the City Fiscal
filed with the Court of First Instance of Manila a "charge" reading as follows:

The undersigned hereby charges Manuel F. Cabal with contempt under section 580 of the
Revised Administrative Code in relation to sections I and 7, Rule 64 of the Rules of Court,
committed as follows:

That on or about September 15, 1961, in the investigation conducted at the U.P. Little
Theater:, Padre Faura, Manila, by the Presidential Committee, which was created by
the President of the Republic of the Philippines in accordance with law to investigate
the charges of alleged acquisition by respondent of unexplained wealth and
composed of Justice Marceliano Montemayor, as Chairman, and Justices
Buenaventura Ocampo and Sotero Cabahug and Generals Basilio Valdez and
Guillermo Francisco, as members, with the power, among others, to compel the
attendance of witnesses and take their testimony under oath, respondent who was
personally present at the time before the Committee in compliance with a subpoena
duly issued to him, did then and there willfully, unlawfully, and contumaciously,
without any justifiable cause or reason refusal and fail and still refuses and fails to
obey the lawful order of the Committee to take the witness stand, be sworn and
testify as witness in said investigation, in utter disregard of the lawful authority of the
Committee and thereby obstructing and degrading the proceedings before said body.

Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of

contempt of the Presidential Committee and accordingly disciplined as in contempt of court
imprisonment until such time as he shall obey the subject order of said committee.

This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII
thereof, presided over by respondent Judge. On October 2, 1961, the latter issued an order requiring
petitioner to show cause and/or answer the charge filed against him within ten (10) days. Soon
thereafter, or on October 4, 1961, petitioner filed with respondent Judge a motion to quash the
charge and/or order to show cause, upon the ground: (1) that the City Fiscal has neither authority
nor personality to file said char and the same is null and void, for, if criminal, the charge has been
filed without a preliminary investigation, and, civil, the City Fiscal may not file it, his authority in
respect of civil cases being limited to representing the City of Manila; (2) that the facts charged
constitute no offense for section 580 of the Revised Administrative Code, upon which the charge is
based, violates due process, in that it is vague and uncertain as regards the offense therein defined
and the fine imposable therefor and that it fail to specify whether said offense shall be treated also
contempt of an inferior court or of a superior court (3) that more than one offense is charged, for the
contempt imputed to petitioner is sought to be punished as contempt of an inferior court, as
contempt of a superior court an as contempt under section 7 of Rule 64 of the Rules Court; (4) that
the Committee had no power to order an require petitioner to take the witness stand and be sworn
to, upon the request of Col. Maristela, as witness for the latter, inasmuch as said order violates
petitioner's constitutional right against self-incrimination.

By resolution dated October 14, 1961. respondent Judge denied said motion to quash. Thereupon,
or on October 20, 1961, petitioner began the present action for the purpose adverted to above,
alleging that, unless restrained by this court, respondent Judge may summarily punish him for
contempt, and that such action would not be appealable.
In their answer, respondents herein allege, inter alia, that the investigation being conducted by the
Committee above referred to is administrative, not criminal, in nature; that the legal provision relied
upon by petitioner in relation to preliminary investigations (Section '08-C, Republic Act No. 409, as
amended by Republic Act No. 1201) is inapplicable to contempt proceedings; that, under section 580
of the Revised Administrative Code. contempt against an administrative officer is to be dealt with as
contempt of a superior court; that petitioner herein is charged with only one offense; and that, tinder
the constitutional guarantee against self-incrimination, petitioner herein may refuse, not to take the
witness stand, but to answer incriminatory questions.

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

In this connection, it should be noted that, although said Committee was created to investigate the
administrative charge of unexplained wealth, there seems to be no question that Col. Maristela does
not seek the removal of petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As
a matter of fact he no longer holds such office. It seems, likewise conceded that the purpose of the
charge against petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise
known as the Anti-Graft Law, which authorizes the forfeiture to the State of property of a public
officer or employee which is manifestly out of proportion to his salary as such public officer or
employee and his other lawful income and the income from legitimately acquired property. Such for
forfeiture has been held, however, to partake of the nature of a penalty.

In a strict signification, a forfeiture is a divestiture property without compensation, in

consequence of a default an offense, and the term is used in such a sense in this article. A
forfeiture, as thus defined, is imposed by way of punishment not by the mere convention of
the parties, but by the lawmaking power, to insure a prescribed course of conduct. It is a
method deemed necessary by the legislature to restrain the commission of an offense and to
aid in the prevention of such a offense. The effect of such a forfeiture is to transfer the title to
the specific thing from the owner to the sovereign power (23 Am. Jur. 599) (Emphasis ours.)

In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a liability to pay a

definite sum of money as the consequence of violating the provisions of some statute or
refusal to comply with some requirement of law." It may be said to be a penalty imposed for
misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.)

As a consequence, proceedings for forfeiture of proper are deemed criminal or penal, and, hence,
the exemption of defendants in criminal case from the obligation to be witnesses against themselves
are applicable thereto.

Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or
imprisonment against any person are deemed to be civil proceedings in rem. Such
proceedings are criminal in nature to the extent that where the person using the res illegally
is the owner or rightful possessor of it, the forfeiture proceeding is in the nature of a
punishment. They have been held to be so far in the nature criminal proceedings that a
general verdict on several count in an information is upheld if one count is good. According
to the authorities such proceedings, where the owner of the property appears, are so far
considered as quasi-criminal proceeding as to relieve the owner from being a witness
against himself and to prevent the compulsory production of his books and papers. ... (23
Am. Jur. 612; emphasis ours.)

Although the contrary view formerly obtained, the late decisions are to the effect that suits for
forfeitures incurred by the commission of offenses against the law are so far of quasi-criminal
nature as to be within the reason of criminal proceedings for all purposes of ... that portion of
the Fifth Amendment which declares that no person shall be compelled in any criminal case
to be a witness against himself. .... It has frequently been held upon constitutional grounds
under the various State Constitution, that a witness or party called as witness cannot be
made to testify against himself as to matters which would subject his property to forfeiture. At
early common law no person could be compelled to testify against himself or to answer any
question which would have had a tendency to expose his property to a forfeiture or to form a
link in a chain of evidence for that purpose, as well as to incriminate him. Under this
common-law doctrine of protection against compulsory disclosures which would tend to
subject the witness to forfeiture, such protection was claimed and availed of in some early
American cases without placing the basis of the protection upon constitutional grounds. (23
Am. Jur., 616; emphasis ours.)

Proceedings for forfeitures are generally considered to be civil and in the nature of
proceedings in rem. The statute providing that no judgment or other proceedings in civil
cases shall be arrested or reversed for any defect or want of form is applicable to them. In
some aspects, however, suits for penalties and forfeitures are of quasi-criminal nature and
within the reason of criminal proceedings for all the purposes of ... that portion of the Fifth
Amendment which declares, that no person shall be compelled in any criminal case to be a
witness against himself. The proceeding is one against the owner, as well as against the
goods; for it is his breach of the laws which has to be proved to establish the forfeiture and
his property is sought to be forfeited. (15 Am. Jur., Sec. 104, p. 368; emphasis ours.) lawphil.net

The rule protecting a person from being compelled to furnish evidence which would
incriminate him exists not only when he is liable criminally to prosecution and
punishment, but also when his answer would tend to expose him to a ... forfeiture .... (58 Am.
Jur., See. 43, p. 48; emphasis ours.)

As already observed, the various constitutions provide that no person shall be compelled in
any criminal case to be a witness against himself. This prohibition against compelling a
person to take the stand as a witness against himself applied only to criminal, quasi-criminal,
and penal proceedings, including a proceeding civil in form for forfeiture of property by
reason of the commission of an offense, but not a proceeding in which the penalty
recoverable is civil or remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49: emphasis ours.)

The privilege of a witness not to incriminate himself is not infringed by merely asking the
witness a question which he refuses to answer. The privilege is simply an option of refusal,
and not a prohibition of inquiry. A question is not improper merely because the answer may
tend to incriminate but, where a witness exercises his constitutional right not to answer, a
question by counsel as to whether the reason for refusing to answer is because the answer
may tend to incriminate the witness is improper.

The possibility that the examination of the witness will be pursued to the extent of requiring
self-incrimination will not justify the refusal to answer questions. However, where the position
 of the witness is virtually that of an accused on trial, it would appear that he may invoke the
privilege in support of a blanket refusal to answer any and all questions. (C.J.S., p. 252;
emphasis ours.)

A person may not be compelled to testify in an action against him for a penalty or to answer
any question as a witness which would subject him to a penalty or forfeiture, where the
penalty or forfeiture is imposed as a vindication of the public justice of the state.

In general, both at common law and under a constitution provision against compulsory self-
incrimination, a person may not be compelled to answer any question as a witness which
would subject him to a penalty or forfeiture, or testify in action against him for a penalty.

The privilege applies where the penalty or forfeiture recoverable, or is imposed in vindication
of the public justice the state as a statutory fine or penalty, or a fine or penalty for violation of
a municipal ordinance, even though the action or proceeding for its enforcement is not
brought in a criminal court but is prosecuted through the modes of procedure applicable to
ordinary civil remedy. (98 C. J. S., pp. 275-6.)

Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a proceeding
to declaration a forfeiture of certain property because of the evasion of a certain revenue law,
"though technically a civil proceeding is in substance and effect a criminal one", and that suits for
penalties and forfeitures are within the reason criminal proceedings for the purposes of that portion
the Fifth Amendment of the Constitution of the U.S. which declares that no person shall be
compelled in a criminal case to be a witness against himself. Similarly, a proceeding for the removal
of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance
criminal, for said portion of the Fifth Amendment applies "to all cases in which the action prosecution
is not to establish, recover or redress private and civil rights, but to try and punish persons charged
with the commission of public offenses" and "a criminal case is a action, suit or cause instituted to
punish an infraction the criminal laws, and, with this object in view, it matters not in what form a
statute may clothe it; it is still a criminal case ...". This view was, in effect confirmed in Lees vs.
U.S. (37 L. ed. 1150-1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an extensive
examination of pertinent cases, concludes that said constitutional provision applies whenever the
proceeding is not "purely remedial", or intended "as a redress for a private grievance", but primarily
to punish "a violation of duty or a public wrong and to deter others from offending in likewise manner.
...".

We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which
the theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act
No. 1379, said petition may not be amended as to substance pursuant to our rules of criminal
procedure, was rejected by this Court upon the ground that said forfeiture proceeding in civil in
nature. This doctrine refers, however, to the purely procedural aspect of said proceeding, and has no
bearing the substantial rights of the respondents therein, particularly their constitutional right against
self-incrimination.

WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently
from proceeding further in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so
ordered.

XVIII.6 FERNANDO, J.:

The broad, all-embracing sweep of the self-incrimination clause, 1 whenever appropriately invoked,
has been accorded due recognition by this Court ever since the adoption of the
Constitution.2 Bermudez v. Castillo,3decided in 1937, was quite categorical. As we there stated: "This
Court is of the opinion that in order that the constitutional provision under consideration may prove to
be a real protection and not a dead letter, it must be given a liberal and broad interpretation
favorable to the person invoking it." As phrased by Justice Laurel in his concurring opinion: "The
provision, as doubtless it was designed, would be construed with the utmost liberality in favor of the
right of the individual intended to be served." 4

Even more relevant, considering the precise point at issue, is the recent case of Cabal v.
Kapunan,5where it was held that a respondent in an administrative proceeding under the Anti-Graft
Law 6 cannot be required to take the witness stand at the instance of the complainant. So it must be
in this case, where petitioner was sustained by the lower court in his plea that he could not be
compelled to be the first witness of the complainants, he being the party proceeded against in an
administrative charge for malpractice. That was a correct decision; we affirm it on appeal.

Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of
Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical
Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of an
administrative case7 for alleged immorality, counsel for complainants announced that he would
present as his first witness herein petitioner-appellee, who was the respondent in such malpractice
charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on
the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the
Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled
hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness,
unless in the meantime he could secure a restraining order from a competent authority.

Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the
Board of Examiners was guilty, at the very least, of grave abuse of discretion for failure to respect
the constitutional right against self-incrimination, the administrative proceeding against him, which
could result in forfeiture or loss of a privilege, being quasi-criminal in character. With his assertion
that he was entitled to the relief demanded consisting of perpetually restraining the respondent
Board from compelling him to testify as witness for his adversary and his readiness or his willingness
to put a bond, he prayed for a writ of preliminary injunction and after a hearing or trial, for a writ of
prohibition.

On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the
respondent Board commanding it to refrain from hearing or further proceeding with such an
administrative case, to await the judicial disposition of the matter upon petitioner-appellee posting a
bond in the amount of P500.00.

The answer of respondent Board, while admitting the facts stressed that it could call petitioner-
appellee to the witness stand and interrogate him, the right against self-incrimination being available
only when a question calling for an incriminating answer is asked of a witness. It further elaborated
the matter in the affirmative defenses interposed, stating that petitioner-appellee's remedy is to
object once he is in the witness stand, for respondent "a plain, speedy and adequate remedy in the
ordinary course of law," precluding the issuance of the relief sought. Respondent Board, therefore,
denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the
complainants in the administrative case for malpractice against petitioner-appellee, asking that they
be allowed to file an answer as intervenors. Such a motion was granted and an answer in
intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board,
which for them is limited to compelling the witness to take the stand, to be distinguished, in their
opinion, from the power to compel a witness to incriminate himself. They likewise alleged that the
right against self-incrimination cannot be availed of in an administrative hearing.

A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-
appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act
and testify as a witness for the complainant in said investigation without his consent and against
himself." Hence this appeal both by respondent Board and intervenors, the Gatbontons. As noted at
the outset, we find for the petitioner-appellee.

1. We affirm the lower court decision on appeal as it does manifest fealty to the principle announced
by us in Cabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to annul an order of
Judge Kapunan, it appeared that an administrative charge for unexplained wealth having been filed
against petitioner under the Anti-Graft Act,9the complainant requested the investigating committee
that petitioner be ordered to take the witness stand, which request was granted. Upon petitioner's
refusal to be sworn as such witness, a charge for contempt was filed against him in the sala of
respondent Judge. He filed a motion to quash and upon its denial, he initiated this proceeding. We
found for the petitioner in accordance with the well-settled principle that "the accused in a criminal
case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand."

It was noted in the opinion penned by the present Chief Justice that while the matter referred to an a
administrative charge of unexplained wealth, with the Anti-Graft Act authorizing the forfeiture of
whatever property a public officer or employee may acquire, manifestly out proportion to his salary
and his other lawful income, there is clearly the imposition of a penalty. The proceeding for forfeiture
while administrative in character thus possesses a criminal or penal aspect. The case before us is
not dissimilar; petitioner would be similarly disadvantaged. He could suffer not the forfeiture of
property but the revocation of his license as a medical practitioner, for some an even greater
deprivation.

To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to an American
Supreme Court opinion highly persuasive in character. 10 In the language of Justice Douglas: "We
conclude ... that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the
Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should
not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a
price for asserting it." We reiterate that such a principle is equally applicable to a proceeding that
could possibly result in the loss of the privilege to practice the medical profession.

2. The appeal apparently proceeds on the mistaken assumption by respondent Board and
intervenors-appellants that the constitutional guarantee against self-incrimination should be limited to
allowing a witness to object to questions the answers to which could lead to a penal liability being
subsequently incurred. It is true that one aspect of such a right, to follow the language of another
American decision, 11 is the protection against "any disclosures which the witness may reasonably
apprehend could be used in a criminal prosecution or which could lead to other evidence that might
be so used." If that were all there is then it becomes diluted.
lawphi1.et
The constitutional guarantee protects as well the right to silence. As far back as 1905, we had
occasion to declare: "The accused has a perfect right to remain silent and his silence cannot be
used as a presumption of his guilt." 12 Only last year, in Chavez v. Court of Appeals, 13 speaking
through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant "to
forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted,
unfettered exercise of his own free genuine will."

Why it should be thus is not difficult to discern. The constitutional guarantee, along with other rights
granted an accused, stands for a belief that while crime should not go unpunished and that the truth
must be revealed, such desirable objectives should not be accomplished according to means or
methods offensive to the high sense of respect accorded the human personality. More and more in
line with the democratic creed, the deference accorded an individual even those suspected of the
most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional
foundation underlying the privilege is the respect a government ... must accord to the dignity and
integrity of its citizens." 14

It is likewise of interest to note that while earlier decisions stressed the principle of humanity on
which this right is predicated, precluding as it does all resort to force or compulsion, whether physical
or mental, current judicial opinion places equal emphasis on its identification with the right to privacy.
Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables
the citizen to create a zone of privacy which government may not force to surrender to his
detriment." 15 So also with the observation of the late Judge Frank who spoke of "a right to a private
enclave where he may lead a private life. That right is the hallmark of our democracy." 16 In the light
of the above, it could thus clearly appear that no possible objection could be legitimately raised
against the correctness of the decision now on appeal. We hold that in an administrative hearing
against a medical practitioner for alleged malpractice, respondent Board of Medical Examiners
cannot, consistently with the self-incrimination clause, compel the person proceeded against to take
the witness stand without his consent.

WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without pronouncement
as to costs.

XVIII.7 CUEVAS, JR., J.:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside
the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S.
Aquino, Jr., an opposition stalwart who was returning to the country after a long-sojourn abroad, was
gunned down to death. The assassination rippled shock-waves throughout the entire country which
reverberated beyond the territorial confines of this Republic. The after-shocks stunned the nation
even more as this ramified to all aspects of Philippine political, economic and social life.

To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and
exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc
Fact Finding Board which later became more popularly known as the Agrava Board. 2 Pursuant to the
powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses
appeared and testified and/or produced documentary and other evidence either in obedience to a
subpoena or in response to an invitation issued by the Board Among the witnesses who appeared,
testified and produced evidence before the Board were the herein private respondents General Fabian C.
Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica,
Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4

UPON termination of the investigation, two (2) reports were submitted to His Excellency, President
Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another
one, jointly authored by the other members of the Board namely: Hon. Luciano Salazar, Hon.
Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred
and turned over to the TANODBAYAN for appropriate action. After conducting the necessary
preliminary investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for
MURDER-one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010
and another, criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the
airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal
cases, private respondents were charged as accessories, along with several principals, and one
accomplice.

Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT
GUILTY.

In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by
the Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the
individual testimonies of private respondents before the Agrava Board. 6 Private respondents, through
their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a
formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence
against him in the above-entitled cases" 7 contending that its admission will be in derogation of his
constitutional right against self-incrimination and violative of the immunity granted by P.D. 1886. He
prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and
the rest of the other private respondents likewise filed separate motions to exclude their respective
individual testimonies invoking the same ground. 8 Petitioner TANODBAYAN opposed said motions
contending that the immunity relied upon by the private respondents in support of their motions to exclude
their respective testimonies, was not available to them because of their failure to invoke their right against
self-incrimination before the ad hoc Fact Finding Board. 9 Respondent SANDIGANBAYAN ordered the
TANODBAYAN and the private respondents to submit their respective memorandum on the issue after
which said motions will be considered submitted for resolution. 10

On May 30, 1985, petitioner having no further witnesses to present and having been required to
make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for
exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending
motions for exclusion and the opposition thereto, together with the memorandum in support thereof,
as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's
Resolution on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June
3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the
testimonies of private respondents and other evidences produced by them before the Board, all of which
have been previously marked in the course of the trial. 12

All the private respondents objected to the prosecution's formal offer of evidence on the same
ground relied upon by them in their respective motion for exclusion.

On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two
(2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or
other evidence produced by the private respondents in view of the immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now
come before Us by way of certiorari 14 praying for the amendment and/or setting aside of the challenged
Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased
Rolando Galman, also filed a separate petition for certiorari 15 on the same ground. Having arisen from the
same factual beginnings and raising practically Identical issues, the two (2) petitioners were consolidated
and will therefore be jointly dealt with and resolved in this Decision.

The crux of the instant controversy is the admissibility in evidence of the testimonies given by the
eight (8) private respondents who did not invoke their rights against self-incrimination before the
Agrava Board.

It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said
testimonies are admissible against the private respondents, respectively, because of the latter's
failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private
respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by
contending that such failure to claim said constitutional privilege amounts to a waiver thereof. 16 The
private respondents, on the other hand, claim that notwithstanding failure to set up the privilege against
self- incrimination before the Agrava Board, said evidences cannot be used against them as mandated by
Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second
clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section
would suffer from constitutional infirmity for being violative of the witness' right against self-
incrimination. 17 Thus, the protagonists are locked in horns on the effect and legal significance of failure to
set up the privilege against self-incrimination.

The question presented before Us is a novel one. Heretofore, this Court has not been previously
called upon to rule on issues involving immunity statutes. The relative novelty of the question
coupled with the extraordinary circumstance that had precipitated the same did nothing to ease the
burden of laying down the criteria upon which this Court will henceforth build future jurisprudence on
a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We
shall be guided, as always, by the constitution and existing laws.

The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and
independent body, instead of any ordinary police agency, be charged with the task of conducting the
investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the
probable motive behind the assassination and the person or persons responsible for or involved in the
assassination hastened its creation and heavily contributed to its early formation. 19

Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact,
and to all legal intents and purposes, an entity charged, not only with the function of determining the
facts and circumstances surrounding the killing, but more importantly, the determination of the
person or persons criminally responsible therefor so that they may be brought before the bar of
justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to
know the facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt
with criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent
portion of which provides

SECTION 12. The findings of the Board shall be made public. Should the findings
warrant the prosecution of any person, the Board may initiate the filing of proper
complaint with the appropriate got government agency. ... (Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort, to the
ascertainment and/or determination of the culprit or culprits, their consequent prosecution and
ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify
before the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing
environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned
to testify will include not merely plain witnesses but also those suspected as authors and co-participants
in the tragic killing. And when suspects are summoned and called to testify and/or produce evidence, the
situation is one where the person testifying or producing evidence is undergoing investigation for the
commission of an offense and not merely in order to shed light on the facts and surrounding
circumstances of the assassination, but more importantly, to determine the character and extent of his
participation therein.

Among this class of witnesses were the herein private respondents, suspects in the said
assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest) at
the time they were summoned and gave their testimonies before the Agrava Board. This
notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were
compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no
choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if
they failed or refused to do so. 21 The jeopardy of being placed behind prison bars even before
conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness
against themselves, both of which are sacrosantly enshrined and protected by our fundamental law. 21-
a Both these constitutional rights (to remain silent and not to be compelled to be a witness against
himself) were right away totally foreclosed by P.D. 1886. And yet when they so testified and produced
evidence as ordered, they were not immune from prosecution by reason of the testimony given by them.

Of course, it may be argued is not the right to remain silent available only to a person undergoing
custodial interrogation? We find no categorical statement in the constitutional provision on the matter
which reads:

... Any person under investigation for the commission of an offense shall have the
right to remain and to counsel, and to be informed of such right. ... 22 (Emphasis
supplied)

Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific
portion of the subject provision. In all these cases, it has been categorically declared that a person
detained for the commission of an offense undergoing investigation has a right to be informed of his right
to remain silent, to counsel, and to an admonition that any and all statements to be given by him may be
used against him. Significantly however, there has been no pronouncement in any of these cases nor in
any other that a person similarly undergoing investigation for the commission of an offense, if not
detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of the Bill of
Rights.

The fact that the framers of our Constitution did not choose to use the term "custodial" by having it
inserted between the words "under" and investigation", as in fact the sentence opens with the phrase
"any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda
doctrine. 24 Neither are we impressed by petitioners' contention that the use of the word "confession" in
the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police investigation,
for although the word "confession" is used, the protection covers not only "confessions" but also
"admissions" made in violation of this section. They are inadmissible against the source of the confession
or admission and against third person. 25
It is true a person in custody undergoing investigation labors under a more formidable ordeal and
graver trying conditions than one who is at liberty while being investigated. But the common
denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the
person undergoing interrogation for the commission of an offense, the very evidence with which to
prosecute and thereafter convict him. This is the lamentable situation we have at hand.

All the private respondents, except Generals Ver and Olivas, are members of the military contingent
that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on
that fateful day. Being at the scene of the crime as such, they were among the first line of suspects in
the subject assassination. General Ver on the other hand, being the highest military authority of his
co-petitioners labored under the same suspicion and so with General Olivas, the first designated
investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case.
The papers, especially the foreign media, and rumors from uglywagging tongues, all point to them as
having, in one way or another participated or have something to do, in the alleged conspiracy that
brought about the assassination. Could there still be any doubt then that their being asked to testify,
was to determine whether they were really conspirators and if so, the extent of their participation in
the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being
called to the witness stand was merely to elicit from them facts and circumstances surrounding the
tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified
earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called
by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the
transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than
merely eliciting and determining the so-called surrounding facts and circumstances of the
assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude
that they were called to the stand to determine their probable involvement in the crime being
investigated. Yet they have not been informed or at the very least even warned while so testifying,
even at that particular stage of their testimonies, of their right to remain silent and that any statement
given by them may be used against them. If the investigation was conducted, say by the PC, NBI or
by other police agency, all the herein private respondents could not have been compelled to give any
statement whether incriminatory or exculpatory. Not only that. They are also entitled to be
admonished of their constitutional right to remain silent, to counsel, and be informed that any and all
statements given by them may be used against them. Did they lose their aforesaid constitutional
rights simply because the investigation was by the Agrava Board and not by any police investigator,
officer or agency? True, they continued testifying. May that be construed as a waiver of their rights to
remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they
have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the
awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are
not persuaded that when they testified, they voluntarily waived their constitutional rights not to be
compelled to be a witness against themselves much less their right to remain silent.

Compulsion as it is understood here does not necessarily connote the use of

violence; it may be the product of unintentional statements. Pressure which operates
to overbear his will, disable him from making a free and rational choice, or impair his
capacity for rational judgment would in our opinion be sufficient. So is moral coercion
'tending to force testimony from the unwilling lips of the defendant. 26

Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where
certain police officers summoned to an inquiry being conducted by the Attorney General involving the
fixing of traffic tickets were asked questions following a warning that if they did not answer they would be
removed from office and that anything they said might be used against them in any criminal proceeding,
and the questions were answered, the answers given cannot over their objection be later used in their
prosecutions for conspiracy. The United States Supreme Court went further in holding that:

the protection of the individuals under the Fourteenth Amendment against coerced
statements prohibits use in subsequent proceedings of statements obtained under
threat or removal from office, and that it extends to all, whether they are policemen or
other members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held
that in the context of threats of removal from office the act of responding to
interrogation was not voluntary and was not an effective waiver of the privilege
against self- incrimination.

To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and
amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a
witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be
invoked by any of the herein private respondents before the Agrava Board. The Cabal vs.
Kapunan 28 doctrine militates very heavily against this theory. Said case is not a criminal case as its title
very clearly indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when
Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for complainant
Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea that for him to
be compelled to testify will be in violation of his right against self- incrimination. We did not therein state
that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the
witness stand and testify, and that he can invoke his right against self-incrimination only when a question
which tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the
character of the suit involved but the nature of the proceedings that controls. The privilege has
consistently been held to extend to all proceedings sanctioned by law and to all cases in which
punishment is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture case
where only property rights were involved, "the right not to be compelled to be a witness against himself" is
secured in favor of the defendant, then with more reason it cannot be denied to a person facing
investigation before a Fact Finding Board where his life and liberty, by reason of the statements to be
given by him, hang on the balance. Further enlightenment on the subject can be found in the historical
background of this constitutional provision against self- incrimination. The privilege against self-
incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the Philippines, the
same principle obtains as a direct result of American influence. At first, the provision in our organic laws
were similar to the Constitution of the United States and was as follows:

That no person shall be ... compelled in a criminal case to be a witness against

himself. 30

As now worded, Section 20 of Article IV reads:

No person shall be compelled to be a witness against himself.

The deletion of the phrase "in a criminal case" connotes no other import except to make said
provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled
to testify against himself" applies to the herein private respondents notwithstanding that the
proceedings before the Agrava Board is not, in its strictest sense, a criminal case

No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional
rights, but also the right to "due process" which is fundamental fairness. 31 Quoting the highly-
respected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M.
Fernando, 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 (Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). 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." (Frankfurter, Hannah v.
Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with
fixed content unrelated to time, place and circumstances."(Cafeteria Workers v.
McElroy 1961, 367 US 1230) Decisions based on such a clause requiring a 'close
and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois,
1959, 359 US 121). Questions of due process are not to be treated narrowly or
pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939, 308 US 313).

Our review of the pleadings and their annexes, together with the oral arguments, manifestations and
admissions of both counsel, failed to reveal adherence to and compliance with due process. The
manner in which the testimonies were taken from private respondents fall short of the constitutional
standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in
Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of
private respondents cannot be admitted against them in ally criminal proceeding. This is true
regardless of absence of claim of constitutional privilege or of the presence of a grant of immunity by
law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private
respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised
and extensively discussed in the pleadings and oral arguments of the parties.

Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the
other, which grants what is known as "transactional immunity." The distinction between the two is as
follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in
connection with the criminal prosecution of the witness. On the other hand, "transactional immunity"
grants immunity to the witness from prosecution for an offense to which his compelled testimony
relates." 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads:

SEC. 5. No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience to a
subpoena issued by the Board on the ground that his testimony or the evidence
required of him may tend to incriminate him or subject him to penalty or forfeiture; but
his testimony or any evidence produced by him shall not be used against him in
connection with any transaction, matter or thing concerning which he is compelled,
after having invoked his privilege against self-incrimination, to testify or produce
evidence, except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall he be
exempt from demotion or removal from office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely
immunity from use of any statement given before the Board, but not immunity from prosecution by
reason or on the basis thereof. Merely testifying and/or producing evidence do not render the
witness immuned from prosecution notwithstanding his invocation of the right against self-
incrimination. He is merely saved from the use against him of such statement and nothing more.
Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against self-
incrimination. The dictates of fair play, which is the hallmark of due process, demands that private
respondents should have been informed of their rights to remain silent and warned that any and all
statements to be given by them may be used against them. This, they were denied, under the
pretense that they are not entitled to it and that the Board has no obligation to so inform them.

It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the
petitioners that the right against self-incrimination must be invoked before the Board in order to
prevent use of any given statement against the testifying witness in a subsequent criminal
prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the
Constitution, which is the first test of admissibility. It reads:

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.
(Emphasis supplied)

The aforequoted provision renders inadmissible any confession obtained in violation thereof. As
herein earlier discussed, this exclusionary rule applies not only to confessions but also to
admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal proceeding
or any person under investigation for the commission of an offense. Any interpretation of a statute which
will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more
constructions or interpretations could possibly be resorted to, then that one which will avoid
unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the
more usual and apparent import of the language used. 34 To save the statute from a declaration of
unconstitutionality it must be given a reasonable construction that will bring it within the fundamental
law. 35 Apparent conflict between two clauses should be harmonized. 36

But a literal application of a requirement of a claim of the privilege against self- incrimination as a
condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he
has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however,
forecloses such option of refusal by imposing sanctions upon its exercise, thus:

SEC. 4. The Board may hold any person in direct or indirect contempt, and impose
appropriate penalties therefor. A person guilty of .... including ... refusal to be sworn
or to answer as a witness or to subscribe to an affidavit or deposition when lawfully
required to do so may be summarily adjudged in direct contempt by the Board. ...

Such threat of punishment for making a claim of the privilege leaves the witness no choice but to
answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such
application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of
contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion
imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes
upon the witness' right against self-incrimination. As a rule, such infringement of the constitutional
right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to
answer UNLESS a co-extensive protection in the form of IMMUNITY is offered. 37 Hence, under the
oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be
required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has
already produced its desired results the private respondents had all testified without offer of immunity.
Their constitutional rights are therefore, in jeopardy. 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. We hold, therefore, that in
view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D.
1886, 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.

With the stand we take on the issue before Us, and considering the temper of the times, we run the
risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening
consequences that hover before Us, we have strictly adhered to the Constitution in upholding the
rule of law finding solace in the view very aptly articulated by that well-known civil libertarian and
admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case
of People vs. Manalang 38 and we quote:

I am completely conscious of the need for a balancing of the interests of society with
the rights and freedoms of the individuals. I have advocated the balancing-of-
interests rule in an situations which call for an appraisal of the interplay of conflicting
interests of consequential dimensions. But I reject any proposition that would blindly
uphold the interests of society at the sacrifice of the dignity of any human being.
(Emphasis supplied)

Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt
or innocence of the herein private respondents an issue which is before the Sandiganbayan. We are
merely resolving a question of law and the pronouncement herein made applies to all similarly
situated, irrespective of one's rank and status in society.

IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit,
same are DISMISSED. No pronouncement as to costs.

SO ORDERED.

XVIII.8 PUNO, J.:

The denial of the right to be free from further prosecution of a cooperative witness who has been
granted immunity is the core issue posed in this petition. On balance are important rights in conflict:
the right of an individual who has surrendered his constitutional prerogative to be silent to the State
to be exempt from further prosecution; the right of the State to prosecute all persons who appear to
have committed a crime and its prerogative to revoke the immunity it has granted to an accused for
breach of agreement; and the extent of the jurisdiction of the Sandiganbayan as an impartial tribunal
to review the grant of immunity extended by the PCGG to an accused.

First, the facts.

On January 20, 1987, petitioners Placido L. Mapa and Lorenzo Vergara, together with Gregorio Ma.
Araneta III, Fernando Balatbat, Ramon Aviado, Jr., Dominador Lopez, Jr., Fernando Maramag, Jr.,
and Jose Crisanto, Jr., were charged with violation of the Anti-Graft and Corrupt Practices Act (R.A.
3019) as amended, docketed as Case No. 11960 in the respondent court, as follows:

That on or about and during the period from March 1985 and March 1986, in Metro
Manila, Philippines, and within the jurisdiction of the Honorable Sandiganbayan,
accused Placido L. Mapa, Jr., J. Lorenzo Vergara, Ramon F. Aviado, Jr., Dominador
Lopez, Jr., Fernando Maramag, Jr., Jose C. Crisanto, Jr., acting in various capacities
as management officials of the Philippine National Bank (PNB), National Investment
and Development Corporation (NIDC) and/or Pantranco North Express Inc. (PNEI),
all government-owned and controlled corporations, as well as Dolores Potenciano of
BLTB, acting in concert in the performance of their duties, in utter neglect of their
fiduciary responsibilities, and with intent to gain, conspiring and confederating with
one another and with accused Gregorio Ma. Araneta III, son-in-law of former
President Ferdinand E. Marcos and therefore related to the deposed President by
affinity within the third degree, and Fernando Balatbat, did then and there, willfully
and unlawfully, with manifest partiality and evident bad faith, without proper board
resolution and in disregard of better offers, promote and facilitate the sale of a major
portion of the public utility assets of the Pantranco Express, Inc., for a consideration
of SEVEN HUNDRED SEVENTY-FIVE MILLION (P775,000,000.00) PESOS,
Philippine Currency, to the North Express Transport, Inc. (NETI), which the accused
knew to be a newly organized paper corporation with a purported paid-up capital of
only FIVE MILLION (P5,000,000.00) PESOS and owned and controlled by accused
Gregorio Ma. Araneta III, by misleading, inducing and/or unduly influencing the Board
of Directors of PNB, NIDC and PNEI into approving a Memorandum of Agreement
and later a Purchase Agreement with manifestly and grossly disadvantageous terms
and conditions which made possible the premature delivery of said PNEI assets to
NETI without any down payment, and which, inter alia, allowed NETI to operate
PNEI's franchises and utilize, even before the execution of the said Purchase
Agreement, not only the PNEI assets subject of the proposed sale, but also other
utility buses and properties of PNEI not covered by the sale, thereby allowing NETI to
derive an income from said operation between the period of actual delivery and
execution of the Purchase Agreement of the sum of EIGHTY-FIVE MILLION SIX
HUNDRED EIGHTY-NINE THOUSAND, ONE HUNDRED EIGHTY (P85,689,180.00)
PESOS before the actual payment of the agreed FIFTY-FIVE MILLION
(P55,000,000.00) PESOS down payment, thereby giving accused Gregorio Ma.
Araneta III unwarranted benefits, advantages and/or preferences and causing undue
injury to the damage and prejudice of the Government in the amount of FOUR
HUNDRED MILLION (P400,000,000.00) PESOS, and such other amounts as may
be awarded by the Court.

CONTRARY TO LAW.

Except for petitioner Araneta, all the accused in Criminal Case

No. 11960 were arraigned. Their trial started on September 20, 1988.

In the interim, the late President Ferdinand E. Marcos and Mrs. Imelda R. Marcos were charged in
New York with violations of the Racketeer Influenced and Corrupt Organization Act (RICO) by
transporting to the United States and concealing the investment of money through cronies and
offshore organizations. To insure the conviction of the Marcoses, the prosecution solicited the
testimonies of witnesses. Among these witnesses were petitioners Vergara and Mapa. Petitioner
Vergara was interviewed in 1987 by PCGG lawyers Kendall and Severina Rivera and by United
States Prosecutor Charles La Bella. Petitioner Mapa was interviewed on November 14, 1988 and
August 11, 1989 also by Prosecutor La Bella at the behest of former Secretary of Justice Sedfrey
Ordonez and former PCGG Chairman Mateo Caparas. After their interviews, petitioners were
requested to testify in the said RICO cases against the former First Couple. They were promised
immunity from further criminal prosecution. They agreed.

On May 16, 1990, the Philippine Government through the PCGG, and the petitioners formalized their
separate agreements in writing. The agreement with petitioner Mapa provided:

WHEREAS, REPUBLIC has requested MAPA to make himself available as a witness

in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.," more
particularly in the on-going trial of the case;

WHEREAS, MAPA is a defendant or respondent in several civil and criminal cases

which the REPUBLIC has filed or intends to file in relation to this participation in
various contracts that are alleged to have resulted in the accumulation of ill-gotten
wealth by Ferdinand and Imelda Marcos in violation of Philippine laws, rules and
regulations;

WHEREAS, on the basis of MAPA's express intent to make himself available as

witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
al.," and in light of REPUBLIC's re-appraisal of the civil and criminal cases which it
has filed or intends to file against MAPA under the terms and conditions herein below
set forth.

NOW, THEREFORE, for and in consideration of the foregoing premises, the parties
agree as follows:

1. MAPA shall make himself available as a witness in the case entitled "United States
of America vs. Ferdinand E. Marcos, et al."

2. In consideration of the same, REPUBLIC grants MAPA immunity from

investigation, prosecution and punishment for any offense with reference to which his
testimony and information are given, including any offense and commission of which
any information, directly or indirectly derived from such testimony or other information
is used as basis thereof, except a prosecution for perjury and/or giving false
testimony.

3. Likewise, in consideration of such cooperation, and in light of REPUBLICs review

of the cases both civil and criminal which it has filed or intends to file against MAPA
within the purview of Executive Orders Nos. 1, 2, 14 and 14-A, the REPUBLIC shall
cause the dismissal or exclusion of MAPA as party defendant or respondent in all
PCGG initiated civil cases and criminal proceeding or investigation.
 4. The immunity has been granted by the REPUBLIC to MAPA on the basis of and
relying on MAPA's promise of cooperation as described herein. In case of breach of
his commitment to fully cooperate and make himself available as a witness in the
case entitled "United States of America vs. Ferdinand E. Marcos, et al.", the immunity
herein granted shall forthwith be deemed revoked, and of no force and effect.

5. The parties agree that the grant of immunity from criminal prosecution to MAPA
and his exclusion from PCGG initiated civil cases and criminal proceeding or
investigations has been undertaken in the exercise of the PCGG's authority under
Executive Order Nos. 1, 2, 14 and 14-A. Accordingly, nothing herein shall be
construed as an admission by MAPA of any criminal or civil liability.

The agreement with petitioner Vergara stated:

WHEREAS, REPUBLIC has requested VERGARA to make himself available as a

witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
al.," more particularly in the on-going trial of the case;

WHEREAS, Vergara is a defendant in Criminal Case No. 11960 entitled "People vs.
Gregorio Ma. Araneta, et al.", now pending before the Sandiganbayan, Second
Division;

WHEREAS, on the basis of VERGARAs express intent to make himself available as

witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
al.," and in the light of REPUBLIC's re-appraisal of VERGARA's participation in
Criminal Case No. 11960, the REPUBLIC approved to grant immunity to VERGARA
under the terms and conditions hereinbelow set forth.

NOW, THEREFORE, for and in consideration of the foregoing premises, the parties
agree as follows:

1. VERGARA shall make himself available as a witness in the case entitled "United
States of America vs. Ferdinand E. Marcos, et al."

2. In consideration of the same, REPUBLIC grants VERGARA immunity from

investigation, prosecution and punishment for any offense with reference to which his
testimony and information are given, including any offense and commission of which
any information, directly or indirectly derived from such testimony or other information
is used as basis thereof, except a prosecution for perjury and/or giving false
testimony.

3. Likewise, in consideration of such cooperation, and in light of REPUBLICs review

of VERGARAs participation in Criminal Case No. 11960, the REPUBLIC shall cause
the dismissal of VERGARA from Criminal Case No. 11960.

4. The immunity has been granted by the REPUBLIC to VERGARA on the basis of
and relying on VERGARA's promise of cooperation as described herein. In case of
breach of h is commitment to fully cooperate and make himself available as a
witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
 al.", the immunity herein granted shall forthwith be deemed revoked, and of no force
and effect.

5. The parties agree that the grant of immunity from civil and criminal prosecution to
VERGARA and his exclusion from Criminal Case No. 11960 has been undertaken in
the exercise of the PCGG's authority under Executive Orders Nos. 1, 2, 14 and 14-A.
Accordingly, nothing herein shall be construed as a admission by VERGARA of any
criminal liability.

On the same day, May 16, 1990, former PCGG Chairman Mateo Caparas wrote to petitioner Mapa
the following letter:

Dear Sir:

With reference to the agreement executed between yourself and the Republic of the
Philippines on May 16, 1990, we would like to confirm
that among the criminal cases which the Republic agrees to cause the dismissal of
the case entitled "People of the Philippines vs. Mr. Gregorio Ma. Araneta III, et. al., "
Criminal Case No. 11960 of the Sandiganbayan. We understand that in that case the
prosecution is in the process of closing its evidence with the submission of its offer of
documentary evidence and that it is your intention thereupon to submit a Motion to
Dismiss for failure of the prosecution to prove its case. We affirm that if, because of
the situation of the case, it would not be possible for the Republic to file the
necessary motion to cause the dismissal thereof, then we shall upon submission of
your Motion to Dismiss offer no objection to its favorable consideration by the court in
relation to you.

We also affirm our understanding that we shall arrange with the U.S. prosecutors the
grant of immunity in your favor no less broad or extensive than that granted to Mr.
Jaime C. Laya.

Very
truly
yours,

(SGD.) M.A.T. Caparas

A similar letter was sent to petitioner Vergara.

The petitioners complied with their respective undertaking. They travelled to New York to testify
against the Marcoses. Their travel fare and hotel accommodations were even furnished by the
PCGG. But despite their availability and willingness to testify, the US prosecutors decided not to call
them to the witness stand. The result was a debacle for the US prosecutors and the PCGG.
Mrs.Imelda Marcos was acquitted by the jury. Earlier, former President Marcos was delisted as an
accused as he died in the course of the proceedings.

The legal struggle shifted back to the prosecution of petitioners in Criminal Case No. 11960 before
the respondent court. On the basis of the immunity granted to them, petitioners filed a Joint Motion
to Dismiss on October 22, 1990. Deputized PCGG prosecutors Vivencio B. Dionido and Angel J.
Parazo filed a Manifestation interposing no objection to petitioners' Motion, viz:

That herein accused Placido L. Mapa, Jr. and J. Lorenzo Vergara were granted
immunity by the Presidential Commission on Good Government from criminal liability
arising from cases which PCGG had or intends to file against them;

The PCGG, therefore, interposes no objection to the Joint Motion to Dismiss filed by
accused Placido L. Mapa, Jr. and J. Lorenzo Vergara in Criminal Case No. 11960-
PCGG by reason of the immunity aforestated.

Despite PCGG's concurrence, the respondent court denied the Joint Motion to Dismiss, by a vote of
4-1. 1Petitioners were undaunted. On April 8, 1991, they filed a Motion for Reconsideration. This was
followed on May 23, 1991, by a Supplement to the Motion for Reconsideration. The deputized
prosecutors again filed a Manifestation reiterating PCGG's acquiescence to petitioners' Motion for
Reconsideration. Respondent court, however, refused to budge from its prior position. It denied
petitioners' motions.

Hence, this recourse where petitioners charge the respondent court with grave abuse of discretion in
denying their Motion to Dismiss and Motion for Reconsideration. They pose the following issues:

2.00.a. Does the fact that the information provided by petitioners to the Presidential
Commission on Good Government (PCGG) did not refer to Criminal Case No. 11960
make the immunity granted to them inapplicable to Criminal Case No. 11960?

2.00.b. Is it necessary that information furnished the PCGG, which would become
basis of the grant of immunity, be submitted to the Sandiganbayan in order that it
may determine whether such information is necessary to ascertain or prove the guilt
or liability of a respondent, defendant or an accused in an action involving the
recovery of ill-gotten wealth?

2.00.c. Does the fact that the prosecution in the RICO cases did not actually present
petitioners as witnesses abrogate the immunity granted to them?

2.00.d. Was the immunity granted to petitioners too late considering that when it was
granted, the prosecution in Criminal Case
No. 11960 had already rested its case?"

The proceedings before us took a new wrinkle with the appointment of Atty. David Castro as
Chairman of PCGG. In its Comment dated January 6, 1992, the PCGG somersaulted from its stance
supporting the petitioners. Its Comment states:

1. The Presidential Commission on Good Government has indeed granted Messrs.

Placido L. Mapa, Jr., and Jesus Lorenzo Vergara immunity from investigation,
prosecution and punishment for any offense for which civil and criminal cases have
been or to be filed against them within the purview of Executive Orders Nos. 1, 2, 14
and 14-A but such immunity is conditional.
 2. The conditions for giving such immunity is the cooperation said petitioners shall
give to said Commission by way of information and testimony in cases now pending
or to be filed before the Sandiganbayan against other defendants therein to prove the
latter's acquisition or accumulation of property or properties in violation of existing
laws.

3. Failure on the part of petitioners Placido Mapa, Jr. and Jesus Vergara to testify in
favor of the government and against other defendants on matters referred to in
the immediately preceding paragraph nullifies the immunity granted to both
defendants (emphasis supplied).

It reiterated its breakaway from petitioners in its Comment to the Reply of petitioners dated June 10,
1992, where it adopted the respondent Sandiganbayan's questioned Resolution and Concurring
Opinions dated
March 6, 1991. It further stressed that "[T]he granting of 'Immunity' from criminal liability and/or
prosecution is a matter subject to the court's judicious determination and approval, after applying the
test of compliance and the standard of reasonableness with the rigid requirements for such grant
under Section 5 of Executive Order No. 14-A, as amended." The Solicitor General defended the
stance of the PCGG and the respondent court.

We find merit in the petition.

The practice of granting government, its officials, and some accused or respondents immunity from
suits, has a long history.

We begin with the Constitution which expressly grants some of these immunities. Article XVI, section
3 provides that "the State may not be sued without its consent." The classic justification for the non-
suability of the State is that provided by Mr. Justice Oliver Wendell Holmes: ". . . there can be no
legal right against the authority which makes the law on which the right depends." 2 Article VI, section
11 of the Constitution also grants parliamentary immunities, viz: "A Senator or Member of the House of
Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged
from arrest while the Congress is in session. No member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in
any committee thereof." Mr. Justice Isagani A. Cruz explains the rationale for this immunity in the
following manners: ". . . The first is intended to ensure representation of the constituents of the member of
the Congress by preventing attempts to keep him from attending its sessions. The second enables the
legislator to express views bearing upon the public interest without fear of accountability outside the halls
of the legislature for his inability to support his statements with the usual evidence required in the court of
justice. In other words, he is given more leeway than the ordinary citizen in the ventilation of matters that
ought to be divulged for the public good." 3 The President was also immunized from suit during his tenure
in the 1973 Constitution.

Aside from the Constitution, Congress has enacted laws giving immunity to witnesses to facilitate the
solution of crimes with high political, social and economic impact against the people. Some of these
statutory grants are related in the impugned Resolution. Thus, PD 749 provides:

Section 1. Any person who voluntarily gives information about any violation of Articles
210, 211, 212 of the Revised Penal Code, Republic Act No. 3019, as amended;
Section 345 of the Internal Revenue Code and Section 3604 of the Tariff and
Customs Code and other provisions of the said codes penalizing abuse or
 dishonesty on the part of the public officials concerned; and other laws, rules and
regulations punishing acts of graft, corruption and other forms of official abuse; and
who willingly testified, such violator shall be exempt from prosecution or punishment
for the offense with reference to which his information and testimony were given, and
may plead or prove the giving of such information and testimony in bar of such
prosecution: Provided, That this immunity may be enjoyed even in cases where the
information and the testimony are given against a person who is not a public official
but who is a principal or accomplice, or accessory in the commission of any of the
above-mentioned violations: Provided, further, That this immunity may be enjoyed by
such informant or witness notwithstanding that he offered or gave bribe or gift to the
public official or is an accomplice for such gift or bribe-giving; And, Provided, finally,
That the following conditions concur:

1. The information must refer to consummated violations of any of the above-

mentioned provisions of law, rules and regulations;

2. The information and testimony are necessary for the conviction of the accused
public officer;

3. Such information and testimony are not yet in the possession of the State;

4. Such information and testimony can be corroborated on its material points; and

5. The informant or witness has not been previously convicted of a crime involving
moral turpitude.

Likewise, under PD No. 1886, the Agrava Fact Finding Board, created to conduct a fact-finding
inquiry in the Aquino-Galman double murder case, was given the power to compel testimony of a
witness. In exchange for his testimony, such a witness was extended transactional immunity from
later prosecution. Section 5 of said PD No. 1886 states:

No person shall be excused from attending and testifying or from producing books,
records, correspondence, documents, or other evidence in obedience to a subpoena
issued by the Board on the ground that his testimony or the evidence required of him
may tend to incriminate him or subject him to penalty or forfeiture; but his testimony
or any evidence produced by him shall not be used against him in connection with
any transaction, matter or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination to testify or produce evidence, except
that such individual so testifying shall not be exempt from prosecution and
punishment for perjury committed in so testifying, nor shall he be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall he be
exempt from demotion or removal from office.

Indeed, as early as April 16, 1951, R.A. 602, establishing a minimum wage law, extended
transactional immunity to persons who testify or produce books, papers or other records and
documents before the Secretary of Labor or a Wage Board. A similar but not identical power is given
to the prosecution under section 9, Rule 119 of the 1985 Rules on Criminal Procedure to discharge
an accused to be utilized as a state witness.
Our immunity statutes are of American origin. In the United States, there are two types of statutory
immunity granted to a witness. They are the transactional immunity and the used-and-derivative-use
immunity. Transactional immunity is broader in the scope of its protection. By its grant, a witness can
no longer be prosecuted for any offense whatsoever arising out of the act or transaction. 4 In contrast,
by the grant of use-and-derivative-use immunity,
a witness is only assured that his or her particular testimony and
evidence derived from it will not be used against him or her in a subsequent prosecution. 5 In Kastigar vs.
US, 6 the rationale of these immunity grants is well explained, viz:

The power of government to compel persons to testify in court or before grand juries
and other governmental agencies is firmly established in Anglo-American
jurisprudence . . . The power to compel testimony, and the corresponding duty to
testify, are recognized in the Sixth Amendment requirements that an accused be
confronted with the witnesses against him, and have compulsory process for
obtaining witnesses in his favor. . .

xxx xxx xxx

But the power to compel testimony is not absolute. There are a number of
exemptions from the testimonial duty, the most important
of which is the Fifth Amendment privilege against compulsory
self-incrimination. The privilege reflects a complex of our fundamental values and
aspirations, and marks an important advance in the development of our liberty. It can
be asserted in any proceeding, civil or criminal, administrative or judicial,
investigatory or adjudicatory; and it protects against any disclosures that the witness
reasonably believes could be used in a criminal prosecution or could lead to other
evidence that might be so used. This Court has been zealous to safeguard the
values that underlie the privilege.

Immunity statutes, which have historical roots deep in Anglo-American jurisprudence,

are not incompatible with these values. Rather, they seek a rational accommodation
between the imperatives of the privilege and the legitimate demands of government
to compel citizens to testify. The existence of these statutes reflects the importance
of testimony, and the fact that many offenses are of such a character that the only
persons capable of giving useful testimony are those implicated in the crime. Indeed,
their origins were in the context of such offenses, and their primary use has been to
investigate such offenses . . . (E)very State in the Union, as well as the District of
Columbia and Puerto Rico, has one of more such statutes. The commentators, and
this Court on several occasions, have characterized immunity statutes as essential to
the effective enforcement of various criminal statutes. . .

We shall now examine the powers granted to PCGG by Executive Order No. 14, as amended, to
grant immunity from criminal prosecution. The pertinent sections provide:

xxx xxx xxx

Sec. 2. Section 4 of Executive Order No. 14 dated May 7, 1986 is hereby amended
to read as follows:
 Sec. 4. A witness may refuse on the basis of his privilege against self-incrimination,
to testify or provide other information in a proceeding before the Sandiganbayan if
the witness believes that such testimony or provision of information would tend to
incriminate him or subject him to prosecution. Upon such refusal, the Sandiganbayan
may order the witness to testify or provide information.

The witness may not refuse to comply with the order on the basis of his privilege
against self-incrimination; but no testimony or other information compelled under the
order (or any information directly or indirectly derived from such testimony, or other
information) may be used against the witness in any criminal case, except a
prosecution for perjury, giving a false statement, or otherwise failing to comply with
the other.'

Sec. 3. Section 5 of Executive Order No. 14 dated May 7, 1986 is hereby amended
to read as follows:

Sec. 5. The Presidential Commission on Good Government is authorized to grant

immunity from criminal prosecution to any person who provides information or
testifies in any investigation conducted by such Commission to establish the unlawful
manner in which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case where such
information or testimony is necessary to ascertain or prove the latter's guilt or his civil
liability. The immunity thereby granted shall be continued to protect the witness who
repeats such testimony before the Sandiganbayan when required to do so by the
latter or by the Commission.

There are obvious differences between the powers granted to the PCGG under sections 4 and 5.
Section 4 deals with the power which PCGG can use to compel an unwilling witness to testify. On
the other hand, section 5 speaks of the power which PCGG can wield to secure information from
a friendly witness. Under section 4, the hostile witness compelled to testify is not immunized from
prosecution. He can still be prosecuted but "no testimony or other information compelled under the
order (or any information directly or indirectly derived from such testimony or other information) may
be used against the witness in any criminal case . . . ." In contrast, under section 5, the friendly
witness is completely immunized from prosecution.

The case at bench involves an exercise of power by PCGG under

section 5, supra. Petitioners are not hostile but friendly witnesses. It is not disputed that they
furnished information to the PCGG during their interviews conducted by PCGG lawyers and US
prosecutor La Bella. Due to their cooperation, they were extended immunity from prosecution by the
PCGG. In return, they flew to New York to testify in the RICO trial of Imelda Marcos. As they were
witnesses for the prosecution, their expenses were shouldered by the PCGG itself. At the last
minute, however, US prosecutor La Bella decided to dispense with their testimony. The rest is
history. The prosecution failed to convict Mrs. Marcos.

The first issue is whether the respondent court has jurisdiction to review the immunity granted by
PCGG in favor of the petitioners. We sustain the jurisdiction of the respondent court. To be sure, we
have grappled with this once slippery issue in the case of Republic vs. Sandiganbayan, 173 SCRA
76, 80-81, and we held:
 We first ascertain whether or not the Sandiganbayan has jurisdiction to look into the
validity of the immunity granted by the PCGG to Jose Y. Campos which was
extended to his son, petitioner-intervenor herein,
Jose Campos, Jr.

xxx xxx xxx

The powers of the PCGG are not unlimited. Its jurisdiction over cases involving ill-
gotten wealth must be within the parameters stated in Executive Order No. 14.
Necessarily, the jurisdiction of the Sandiganbayan which is tasked to handle the ill-
gotten wealth cases must include the jurisdiction to determine whether or not the
PCGG exceeded its power to grant immunity pursuant to the provisions of Executive
Order No.14.

It should also be noted that the respondent court has already acquired jurisdiction to try and decide
Case No. 11960 where petitioners stand accused of violating RA 3019. It has started receiving the
evidence of the prosecution against the petitioners. Petitioners, with the conformity of PCGG, then
claimed their immunity via a motion to dismiss addressed to the respondent court. The motion to
dismiss is thus a mere incident well within the jurisdiction of the respondent court to resolve.

The next issue is a finer and more difficult one, i.e., gauging the range of the power of the
respondent court to review the exercise of discretion of the PCGG granting immunity to petitioners
pursuant to section 5 of E.O. No. 14, as amended.

Respondent court, thru the Solicitor General, pushes the proposition that said power of review is
plenary in reach. It is urged that its plenitude and panoply empower the respondent court to reverse
the grant of immunity made by the PCGG by supplanting the latter's judgment. The submission will
warrant the respondent court in examining the intrinsic quality of the given information or testimony,
i.e., whether it truly establishes the "unlawful manner" in which the respondent, defendant or
accused has acquired or accumulated the property or properties in question. Likewise, it will give a
warrant to the respondent court to change the judgment made by the PCGG that the witness'
information or testimony is "necessary" to ascertain or prove the guilt or civil liability of the
respondent, defendant or accused.

We are not prepared to concede the correctness of this proposition. Neither the text nor the texture
of E.O. No. 14, as amended, lends color to the suggested interpretation. Section 5 of E.O. No. 14, as
amended, vests no such role in respondent court. In instances, where the intent is to endow courts
of justice with the power to review and reverse tactical moves of the prosecution, the law confers the
power in clear and certain language. Thus, under section 9 of Rule 119, the prosecution in the
exercise of its discretion may tactically decide to discharge an accused to be a state witness but its
decision is made subject to the approval of the court trying the case. It has to file a proper motion
and the motion may be denied by the court if the prosecution fails to prove that it has satisfied the
requirements of the rule on discharge of a witness. The rule is crafted as to leave no iota of doubt on
the power of the court to interfere with the discretion of the prosecution on the matter. In the case at
bench, E.O. 14, as amended, is eloquently silent with regard to the range and depth of the power of
the respondent court to review the exercise of discretion by the PCGG granting a section 5 immunity.
This silence argues against the thesis that the respondent court has full and unlimited power to
reverse PCGG's exercise of discretion granting a section 5 immunity. Legitimate power can not arise
from a vacuum.
We observe that in contrast to our other laws on immunity, section 5 of E.O. No. 14, as amended,
confers on the PCGG the power to grant immunity alone and on its own authority. The exercise of
the power is not shared with any other authority. Nor is its exercise subject to the approval or
disapproval of another agency of government. The basic reason for vesting the power exclusively on
the PCGG lies in the principles of separation of power. The decision to grant immunity from
prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to
forego prosecution of a person for government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who appear to be guilty of having committed a
crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty
criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate
power should be exercised, who should be extended the privilege, the timing of its grant, are
questions addressed solely to the sound judgment of the prosecution. The power to prosecute
includes the right to determine who shall be prosecuted and the corollary right to decide whom not to
prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the
respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and
not to get involved with the success or failure of the prosecution to prosecute. Every now and then,
the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to
rectify, any more than courts should correct the blunders of the defense. For fairness demands that
courts keep the scales of justice at equipoise between and among all litigants. Due process
demands that courts should strive to maintain the legal playing field perfectly even and perpetually
level.

Prescinding from these baseline propositions, we hold that in reviewing the grant of a section 5
immunity made by the PCGG to the petitioners, the power of the respondents court can go no further
than to pass upon its procedural regularity. The respondent court should only ascertain: (a) whether
the person claiming immunity has provided information or testimony in any investigation conducted
by the PCGG in the discharge of its functions;
(b) whether in the bona fide judgment of the PCGG, the information or testimony given would
establish the unlawful manner in which the respondent, defendant or accused has acquired or
accumulated the property or properties in question; and (c) whether in the bona fide judgment of the
PCGG, such information or testimony is necessary to ascertain or prove the guilt or civil liability of
the respondent, defendant or accused. Respondent court cannot substitute its judgment to the
discretion of the PCGG without involving itself in prosecution and without ceasing to be a court
catering untilted justice.

Applying this standard, we hold that the respondent court committed grave abuse of discretion when
it denied petitioners' motion to dismiss based on a claim of immunity granted by the PCGG under
section 5 of E.O. 14, as amended.

The records show that petitioners provided information to the PCGG relating to the prosecution of
the RICO cases against the Marcoses in New York. They gave the information in the course of
interviews conducted by PCGG lawyers Kendall and Severina Rivera and US prosecutor Charles
La Bella. They collaborated with the prosecution.

Sec. 5 requires that the information should relate to "any case" which PCGG can prosecute as
mandated by the Constitution and E.O. Nos. 1, 2, 14 and 14-A. It does not limit said information to
be given only in a case where the informant is himself an accused or a respondent. Such a reading
adopted by the respondent court is unduly restrictive of the intendment of section 5 of E.O.
No. 14, as amended, even as it is clearly in contravention of its plain language.
It is also fairly established that the pieces of information given by the petitioners would in the
judgment of the PCGG, establish the "unlawful manner" with which the Marcoses acquired or
accumulated their properties and were "necessary" to prove their guilt. The totality of the
circumstances of the case established this element. Thus, after their interview, the PCGG was
obviously convinced of the evidentiary value of the information given by the petitioners. It forthwith
signed and sealed an agreement with petitioners extending them immunity from prosecution. In the
case of petitioner Mapa, "the Republic shall cause the dismissal or exclusion of MAPA as party
defendant or respondent in all PCGG initiated civil cases and criminal proceeding or investigation."
In the case of petitioner Vergara, "the Republic shall cause the dismissal of Vergara from Criminal
Case No. 11960." This commitment was reiterated by former Chairman Mateo Caparas of PCGG in
his May 16, 1990 letters to the petitioners, as related above. The parties' agreements were then
implemented. Petitioners travelled to New York to testify in the RICO cases against the Marcoses. It
was even the PCGG that shouldered their expenses. All these circumstances prove the judgment of
the PCGG that the pieces of information given by petitioners would establish the "unlawful manner"
with which the Marcoses acquired their wealth.

Contrary to the ruling of the respondent court, the failure of petitioners to testify in the RICO cases
against the Marcoses in New York can not nullify their immunity. They have satisfied the
requirements both of the law and the parties' implementing agreements. Under section 5 of E.O. No.
14, as amended, their duty was to give information to the prosecution, and they did. Under their
Memorandum of Agreement, they promised to make themselves available as witnesses in the said
RICO cases, and they did. Petitioners were ready to testify but they were not called to testify by the
US prosecutors of the RICO case. Their failure to testify was not of their own making. It was brought
about by the decision of the US prosecutors who may have thought that their evidence was enough
to convict the Marcoses. Since petitioners' failure to testify was not of their own choosing nor was it
due to any fault of their own, justice and equity forbid that they be penalized by the withdrawal of
their immunity. Indeed, initially, the PCGG itself adopted the posture that the immunity of petitioners
stayed and should not be disturbed. It joined the motion to dismiss filed by petitioners in the
respondent court. When the respondent court denied the motion, PCGG stuck to its previous
position as it again joined the petitioners in their motion for reconsideration. It is only in this petition
for review on certiorari that PCGG, after a change of Chairman, flip-flopped in its position.

We also rule that there was nothing irregular when PCGG granted a section 5 immunity to petitioners
while they were already undergoing trial in Criminal Case No. 11960. Section 5 of E.O. 14, as
amended, does not prohibit the PCGG from granting immunity to persons already charged in court
and undergoing trial. As long as the privilege of immunity so given will in the judgment of the PCGG
assist it in attaining its greater objectives, the PCGG is well within legal grounds to exercise this
power at any stage of the proceedings. This section 5 immunity frees and releases one from liability,
and as it inures to the benefit of an accused, it can be invoked at any time after its acquisition and
before his final conviction. Our regard for the rights of an accused dictates this result. Thus, we have
consistently held that laws that decriminalize an act or a grant of amnesty may be given retroactive
effect. They constitute a bar against the further prosecution of their beneficiaries' regardless of the
appearance of their guilt. To be sure, the guilt of the petitioners in Criminal Case No. 11960 has yet
to be established beyond doubt. The PCGG itself does not appear certain and confident of the
strength of its evidence against the petitioners in said criminal case. The records show that
petitioners Mapa was granted immunity not only because of the information he gave to the
prosecution but also ". . . in light of Republic's review of the cases both civil and criminal which it has
filed or intends to file against . . ." him. Similarly, petitioner Vergara was granted immunity ". . . in light
of Republic's review of Vergara's participation in Criminal Case No. 11960 . . . ." After reviewing its
evidence against the petitioners, PCGG appears to have sensed the sterility of its efforts of
continuing their prosecution. Its former chairman, M.A.T. Caparas, learned that petitioners would file
a Motion to Dismiss Criminal Case No. 11960 after PCGG rest its evidence, "for failure of the
prosecution to prove its case." In his May 16, 1990 letters to the petitioners, he assured them that
"we shall . . . offer no objection to its favorable consideration." This is a patent admission that
petitioners' Motion to Dismiss has merit and that the PCGG cannot prove its case against the
petitioners in Criminal Case No. 11960.

Finally, we reject respondent court's ruling that the grant of section 5 immunity must be strictly
construed against the petitioners. It simplistically characterized the grant as special privilege, as if it
was gifted by the government, ex gratia. In taking this posture, it misread the raison d'etre and the
long pedigree of the right against self-incrimination vis-a-vis immunity statutes.

The days of inquisitions brought about the most despicable abuses against human rights. Not the
least of these abuses is the expert use of coerced confessions to send to the guillotine even the
guiltless. To guard against the recurrence of this totalitarian method, the right against self-
incrimination was ensconced in the fundamental laws of all civilized countries. Over the years,
however, came the need to assist government in its task of containing crime for peace and order is a
necessary matrix of public welfare. To accommodate
the need, the right against self-incrimination was stripped of its absoluteness. Immunity statutes in
varying shapes were enacted which would allow government to compel a witness to testify despite
his plea of the right
against self-incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is
given what has come to be known as transactional or a use-derivative-use immunity, as heretofore
discussed. Quite clearly, these immunity statutes are not a bonanza from government. Those given
the privilege of immunity paid a high price for it the surrender of their precious right to be silent.
Our hierarchy of values demands that the right against self-incrimination and the right to be silent
should be accorded greater respect and protection. Laws that tend to erode the force of these
preeminent rights must necessarily be given a liberal interpretation in favor of the individual. The
government has a right to solve crimes but it must do it, rightly.

IN VIEW WHEREOF, the resolutions of the respondent court dated March 7, and June 3, 1991 are
annulled and set aside and the Amended Information against the petitioners in Criminal Case No.
11960 is ordered dismissed. No costs.

SO ORDERED.

XVIII.9 TINGA, J.:

The Courts duty to enforce the law takes on greater imperative

when in so doing, it compels the execution of commitments made by
the State to its citizens. However the modality a right or privilege is
granted by the State to a personwhether under the Constitution, a
statute or a mere contractrecognition thereof is required by the
government and, if need be, mandated by this Court.

Presently for consideration is what appears to be a broken

covenant by the State, made particularly by the Presidential
Commission on Good Government (PCGG) to former National Food
Authority (NFA) Administrator Jesus Tanchanco (Tanchanco), one of
the petitioners at bar. Granted, it is a covenant that should not be
lightly undertaken, involving as it does the grant of criminal
immunity. Notwithstanding, the legal order has never subscribed to
the notion that promises are meant to be broken.

We begin with the facts.

Tanchanco served as NFA Administrator from 1972 to 1986,

during the presidency of Ferdinand Marcos. His co-petitioner
Romeo Lacson (Lacson) was the Deputy Administrator of the NFA
when he was the Administrator.

On 6 May 1988, Tanchanco and the PCGG entered into

a Cooperation Agreement,[1] occasioned by the desire of Tanchanco to
cooperate with the Philippine government in connection with the
latters efforts in the location and pursuit of government properties
purloined by Ferdinand and Imelda Marcos, their agents and others
who hold property on their behalf. In the Cooperation Agreement,
the parties stipulated as follows:

NOW, THEREFORE, in consideration of the mutual covenants

contained herein and intending to be legally bound hereby, the parties
agree as follows:
 1. Tanchanco shall cooperate with any and all Philippine
Government investigations or prosecutions pursuant to Executive
Order No. 1.

2. Cooperation means that Tanchanco shall provide

complete, candid and absolutely truthful disclosures, in response to
any and all questions and inquiries that may be put to him/her in
connection with the Philippines investigations, civil actions, criminal
prosecutions, or any other proceedings whether in the Philippines, the
United States or elsewhere. Further, upon the request of the
Philippines, Tanchanco will offer such cooperation in investigations
and proceedings brought by other governments, including but not
limited to the United States and Switzerland.

Cooperation also means a disgorgement of assets, if any,

acquired in violation of Philippine laws, rules and regulations.
Cooperation further means a full disclosure of assets and liabilities,
beneficially owned by Tanchanco. Any assets not therein listed as
Tanchancos personal property, and thereafter discovered to be in
Tanchancos name or under his/her legal or beneficial control, directly
or indirectly, as of the date of this Agreement, shall become the
property of the PCGG.

3. Should any of Tanchancos statements or testimonies be

false, misleading or materially incomplete, or should Tanchanco
knowingly fail to act with total honesty and candor in any such
matters, the Philippines shall no longer be bound by any of its
representations contained herein. Immunities and other
considerations granted in reliance thereof, shall be null and void.

In return for the above, the Philippines hereby represents and

agrees as follows:

(1) At a time to be mutually agreed upon

between Tanchanco and the Philippines, the
Philippines shall move to dismiss all actions that are
presently pending against Tanchanco before the
Sandiganbayan and any such other courts;
 (2) The Philippines shall lift any
sequestration orders against Tanchancos properties, if
any, and rescind hold orders it may have issued
against his/her actions;
(3) The Philippines shall not bring any
additional civil or criminal charges against Tanchanco,
arising from:

(A) Service in or for the Marcos

government;
(B) Any other actions revealed by
Tanchanco pursuant to his/her cooperation
as defined in this Agreement.

Except as expressly set forth herein, there is no understanding

or agreement of any kind between the Philippines or its counsel, and
Tanchanco, concerning the possible use(s) of his/her liability for
criminal or civil prosecution by the Philippines, or any other
jurisdiction.

Nothing in this Agreement between the Philippines and

Tanchanco is conditioned on the result of any proceedings that might
be brought or have been brought against Ferdinand or Imelda Marcos
or others in connection with the information provided or to be
provided. Thus none of the obligations or undertakings described
above are in any way dependent upon a jurys or courts verdict at any
trial, or the success of any criminal or civil prosecution.[2]

Significantly, Tanchanco was called upon as one of the witnesses for

the prosecution in the case filed against Imelda Marcos in New York
for violation of the so-called RICO Act. It appears that his testimony
was elicited concerning the transfer ofP10,000,000.00 rebate
obtained by the NFA from the Philippine National Lines to the
Security Bank, as well as the matter of the use of discretionary
and/or intelligence funds by the Marcos administration involving
the funds of the NFA during Tanchancos administration. [3]

Nonetheless, a criminal case, docketed as Criminal Case No. 16950,

was filed in 1991 against Tanchanco with the Sandiganbayan for
malversation of public funds in the amount of P10,000,000.00 from
the Philippine National Bank. Tanchanco filed a Motion for
Reinvestigation, wherein he argued that the case should be
dismissed as he had been granted immunity from the said suit by
the PCGG. Eventually, the Sandiganbayan First Division agreed
with Tanchanco and in a Resolution dated 27 October 2000, the
case was ordered dismissed.[4]

However, Criminal Case No. 16950 proved to be only just one of

several attempts of the government to prosecute Tanchanco. In
1997, a total of 22 Informations were filed with the Sandiganbayan
against Tanchanco. He was charged with 21 counts of Malversation
of Public Funds under Article 217 of the Revised Penal Code, and
one count of Failure of Accountable Officer to Render Accounts
under Article 218 of the same Code.[5] Lacson was charged as a co-
defendant in four of the

informations for Malversation of Public Funds. [6] These cases were

consolidated and raffled to the Sandiganbayan Second Division. On
2 September 1997, Tanchanco and Lacson pleaded not guilty to all
of the charges.[7]

On 26 November 1997, Tanchanco and Lacson filed a Motion to

Quash and/or Dismiss all 22 cases, citing as basis the Cooperation
Agreement which was said to have granted immunity to Tanchanco
from criminal prosecution. They likewise presented an affidavit
executed by former Vice-President Emmanuel Pelaez, who was
serving as Philippine Ambassador to the United States at the time
of the New York trial of Imelda Marcos. In his affidavit, Ambassador
Pelaez relevantly stated:

2. During my incumbency as Ambassador, I had the

privilege to assist the Philippine Government thru the
Presidential Commission on Good Government (PCGG) in
obtaining the full cooperation of Mr. Jesus Tanchanco
relative to its investigation on the transfer of TEN
MILLION PESOS (P10,000,000.00) rebate obtained by the
National Food Authority (NFA) from the Philippine
National Lines (PNL) to the Security Bank. The scope of
investigation also encompassed the controversial use of
discretionary and/or intelligence funds by the Marcos
Administration particularly involving the funds of NFA
during the administratorship of Mr. Tanchanco.

3. In this regard, sometime May 1990, I invited Mr. Jesus

Tanchanco, on behalf of PCGG, to my office in
Washington, D.C. to have an investigative meeting with
Atty. Severina Rivera and Atty. Labella, both of whom
presented PCGG in cases against the Marcoses in the
U.S. On this occasion, it was explained to Mr. Tanchanco
that his disclosure/testimony on the adverted P10M fund
transfer and the matter of discretionary and intelligence
funds of the NFA were indispensable to the Philippine
Governments case against the Marcoses. I urged him to
cooperate with the Government and he signified his
willingness to do so.

4. After a time of reflection, Mr. Tanchanco obliged, and he

thereafter had lengthy question and answer sessions
with Attys. Rivera and Labella on the aforesaid major and
other collateral issues.[8]
 Still, the motion was denied by the Sandiganbayan Second
Division in a Resolution dated 5 March 1999.[9] The Sandiganbayan
examined Section 5 of Executive Order (E.O.) No. 14, which
empowered the PCGG to grant immunity from criminal prosecution,
and ruled that the grant of immunity by the PCGG pertained only
to offenses which may arise from the act of a person testifying or
giving information in connection with the recovery of supposed ill-
gotten wealth.

Respondent court declared that the charges of malversation

and failure to render an accounting could not be considered as
falling within the immunity granted to Tanchanco as the offenses
were not related or connected to the testimony or information
furnished by Tanchanco in a proceeding concerning the recovery of
the purported ill-gotten wealth of the Marcoses. The Sandiganbayan
opined that the PCGG could not have intended the grant of
immunity to extend to any other crime which Tanchanco may have
committed while serving the Marcos Administration, such as
bribery and rape, since such was beyond the scope of the PCGG to
bestow. To construe the grant of immunity so broadly, held the
Sandiganbayan, would violate the equal protection clause of the
Constitution, as well as the due process clause. [10]

The Sandiganbayan likewise concluded that even assuming

the immunity granted by the Cooperation Agreement covered the
offenses charged against Tanchanco, the same could not benefit
Lacson, as he was not a party to the immunity agreement. [11]

A Motion for Reconsideration filed by Tanchanco and Lacson

was denied in a Resolution dated 28 December 1998, the
Sandiganbayan declaring therein that the crimes to which
petitioners were charged are beyond the authority and mandate of
the PCGG.[12]

Petitioners now argue before this Court that the grant of

immunity under the Cooperation Agreement encompassed the
subject charges. They note that Tanchanco had given testimony in
the United States regarding the intelligence fund of the NFA, which
was used by President Marcos for his own personal benefit.
Petitioners advert to the affidavit attesting to such testimony by
Ambassador Pelaez. It is argued that Tanchanco had complied with
all his commitments made in the Cooperation Agreement, and it
would be the height of gross distortion of justice and both moral
and legal outrage for the government now to welch on the said
Agreement after Tanchanco had already testified against the
Marcoses. Petitioners likewise cite the relevant jurisprudence
concerning the grant of immunity from criminal prosecution by the
PCGG.

The Office of the Special Prosecutor, on behalf of the People of

the Philippines, cites the comment filed by the PCGG to the Motion
to Quash and/or Dismiss before the Sandiganbayan, wherein it
alleged that contrary to the terms of the Cooperation Agreement,
Tanchanco had not yet provided the PCGG a full disclosure of assets
and liabilities beneficially owned by Tanchanco. [13] This claim is
countered by petitioners, who assert before this Court that he had
already submitted such disclosure to the PCGG even prior to the
execution and signing of the Cooperation Agreement.[14]
 The Office of the Solicitor General (OSG), representing
respondent Sandiganbayan, provides a different argument against
petitioners. The OSG reiterates the position of the Sandiganbayan
that the 22 charges against Tanchanco were not covered by the
immunity granted by the PCGG, which pertained only to offenses
which may arise from his act in testifying or giving information in
connection with the recovery of ill-gotten wealth.[15]

Before delving into the merits, we make two preliminary

qualifications. First, the general rule under Rule 117 of the Rules of
Criminal Procedure is that the accused may move to quash the
complaint or information at any time before entering his plea and
the failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information shall be deemed a
waiver of any objection.[16] In this case, Tanchanco and Lacson had
pleaded not guilty in all the subject cases on 2 September 1997, two
months before they filed the instant Motion to Quash and/or
Dismiss in November of 1997. Nonetheless, Section 9 of Rule 117
expressly qualifies that the failure to timely raise the objection of
lack of jurisdiction over the offense charged cannot be waived,
[17]
and may be raised or considered motu proprio by the court at any
stage of the proceedings or on appeal. [18] Such objection could be
raised through a motion to dismiss when it is no longer timely to file
a motion to quash.[19]We have no doubt that a claim of immunity
from prosecution arising from an immunity statute or agreement is
a jurisdictional question. A statutory grant of immunity enjoins the
prosecution of a criminal action and thus deprives the court of
jurisdiction to proceed.[20]
 Accordingly, the invocation of immunity may have been the
proper subject of petitioners instant motion, and properly
cognizable by the Sandiganbayan even after the plea had been
entered. We need not belabor this point further, especially since
none of the parties, and certainly not the Sandiganbayan, have
either raised or considered this aspect of the case.

Second, we note that different circumstances obtain between

Tanchanco and Lacson, the latter being evidently not a party to any
immunity agreement with the Philippine government. Thus, it is
proper to treat their cases separately. We first rule on Tanchancos
claim of immunity.

The Plain Meaning of the

Cooperation Agreement

Our first point of reference understandably is the Cooperation

Agreement. Therein, we note that the grant of immunity to
Tanchanco is deliberately broad. It is stipulated that the
government shall not bring any additional civil or criminal charges
against Tanchanco arising from: (a) service in or for the Marcos
government; and (b) any other actions revealed by Tanchanco
pursuant to his/her (sic) cooperation as defined in this Agreement.
[21]

The undertakings expressed by the Philippine government

through the PCGG in the Cooperation Agreement are quite clear-cut,
even if broad in scope. Facially, it seemingly encompasses three
classes of actions committed by Tanchanco: those committed while
he was in the service of the Marcos government; those committed in
behalf of the Marcos government; and any other act revealed by him
in the course of his cooperation with the PCGG.

Especially telling are the segregations made in the

classification of the acts covered by the grant of criminal immunity.
First, the distinction is laid, as signified by the conjunctive or,
between those acts committed by Tanchanco arising from service in
the Marcos government and those committed for or in behalf of the
Marcos government. The difference between those two classes of
acts is crucial, for if the agreement is construed plainly, the
immunity covers not only those acts committed by Tanchanco for
the benefit or under the instruction of the Marcoses, but even those
acts of Tanchanco which may not have been tinged with the
involvement of Marcos or his government yet which nevertheless
occurred during Tanchancos term as NFA Administrator.

On the face of the document, we cannot simply say that the clause
should be read as covering only those acts of Tanchanco which he
committed for the Marcos government while he was in service as
NFA Administrator. The use of the word or signifies the joinder of
two distinct concepts: service in and service for, and it is our
conclusion that the PCGG and Tanchanco, in forging
the Cooperation Agreement purposively intended to segregate acts
arising from service in and acts arising from service for the Marcos
government.

The Cooperation Agreement also utilizes a distinction between these

acts arising from service in or for the Marcos government, and any
other actions revealed by Tanchanco pursuant to [his] cooperation
as defined in the Agreement. This qualification is again crucial, as it
is the contention of the OSG that the scope of immunity is limited
only to those offenses which may arise from his act in testifying or
giving information in connection with the recovery of ill-gotten
wealth. Immunity from criminal prosecution arising from those acts
elicited from Tanchanco in the course of his cooperation falls
squarely within the second ground for immunity, any other actions
revealed by Tanchanco pursuant to [his] cooperation. If indeed, as
the OSG suggests, the scope of immunity is limited to those
offenses that arise from Tanchancos act in testifying or giving
information, then why the provision of the first ground of immunity
under the Cooperation Agreement, for acts arising from service in or
service for the Marcos government? The provision is there to
effectuate what it declares.

Other provisions of the Cooperation Agreement likewise indicate that

the intent of the PCGG, as representative of the Philippine
government, was to offer Tanchanco broad protection from criminal
prosecution. The Second Whereas Clause expresses that both
Tanchanco and the PCGG are desirous of resolving their differences
and settling all litigation between them. [22] Moreover, it is stipulated
that none of the obligations or undertakings described [herein] are
in any way dependent upon a jurys or courts verdict at any trial, or
the success of any criminal or civil prosecution. [23]

We thus cannot accept the conclusion that the intent of the parties
to the Cooperation Agreement was to limit the scope of immunity to
cover only offenses arising from the testimony or information given
by Tanchanco pursuant to his cooperation; or that said agreement
pertains only to those offenses committed by Tanchanco in behalf of
the Marcos government. Such limited construction is belied by the
clear terms of the Cooperation Agreement.
The reasons or motives of the PCGG in agreeing to so broad an
immunity agreement are not evidently determinable, yet ultimately
excluded from the scope of judicial inquiry. In Mapa v.
Sandiganbayan,[24] the Court was asked to rule on the range and
power of the courts to review the exercise of discretion of the PCGG
in granting immunity pursuant to Section 5 of E.O. No. 14. The
Court, speaking through now Senior Associate Justice Reynato S.
Puno, ruled that such review can go no further than to pass upon
[the immunity grants] procedural regularity, and is especially
limited to the questions of (a) whether the person claiming
immunity has provided information or testimony in any
investigation conducted by the PCGG in the discharge of its
functions; (b) whether in the bona fide judgment of the PCGG, the
information or testimony given would establish the unlawful
manner in which the respondent, defendant or accused has
acquired or accumulated the property or properties in question; and
(c) whether in the bona fide judgment of the PCGG, such
information or testimony is necessary to ascertain or prove the guilt
or civil liability of the respondent, defendant or accused. [25]

The ruling in Mapa, which was ignored by the Sandiganbayan,

establishes several principles that govern this case as seen in our
subsequent discussion. But the first integral point which we now
invoke is that the reasons or motives of the PCGG in granting broad
criminal immunity to Tanchanco are beyond the scope of judicial
review. The more appropriate legal question now lies as to whether
the PCGG, in entering into the Cooperation Agreement, acted within
the scope of its statutory authority to extend immunity in the first
place? Does such authority encompass the broadly granted
immunity as so plainly expressed in the Cooperation Agreement?
Statutory Authority of PCGG
To Extend Criminal Immunity

Before we examine the particular statutory authority of the

PCGG to extend criminal immunity, it is useful to recall the unique
nature and mandate of the PCGG itself. The seminal case
of BASECO v. PCGG[26] explained the background behind the
creation of the PCGG through E.O. No. 1.

The impugned executive orders are avowedly meant to carry out

the explicit command of the Provisional Constitution, ordained by
Proclamation No. 3, that the President in the exercise of legislative
power which she was authorized to continue to wield "(u)ntil a
legislature is elected and convened under a new Constitution" "shall
give priority to measures to achieve the mandate of the people,"
among others to (r)ecover ill-gotten properties amassed by the
leaders and supporters of the previous regime and protect the
interest of the people through orders of sequestration or freezing
of assets or accounts."

xxx

Executive Order No. 1 stresses the "urgent need to recover all

ill-gotten wealth," and postulates that "vast resources of the
government have been amassed by former President Ferdinand E.
Marcos, his immediate family, relatives, and close associates both
here and abroad." Upon these premises, the Presidential
Commission on Good Government was created, "charged with the
task of assisting the President in regard to . . . (certain specified)
matters," among which was precisely

". . . The recovery of all ill-gotten wealth

accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates
and close associates, whether located in the
Philippines or abroad, including the takeover or
 sequestration of all business enterprises and entities
owned or controlled by them, during his
administration, directly or through nominees, by
taking undue advantage of their public office and/or
using their powers, authority, influence, connections
or relationship."

In relation to the takeover or sequestration that it was

authorized to undertake in the fulfillment of its mission, the PCGG
was granted "power and authority" to do the following particular acts,
to wit:

1. "To sequester or place or cause to be placed under its control

or possession any building or office wherein any ill-gotten wealth or
properties may be found, and any records pertaining thereto, in order
to prevent their destruction, concealment or disappearance which
would frustrate or hamper the investigation or otherwise prevent the
Commission from accomplishing its task."

"2. "To provisionally take over in the public interest or to prevent

the disposal or dissipation, business enterprises and properties taken
over by the government of the Marcos Administration or by entities or
persons close to former President Marcos, until the transactions
leading to such acquisition by the latter can be disposed of by the
appropriate authorities.

"3. "To enjoin or restrain any actual or threatened commission

of acts by any person or entity that may render moot and academic, or
frustrate or otherwise make ineffectual the efforts of the Commission
to carry out its task under this order."

So that it might ascertain the facts germane to its objectives, it

was granted power to conduct investigations; require submission of
evidence by subpoenae ad testificandum and duces tecum; administer
oaths; punish for contempt. It was given power also to promulgate
such rules and regulations as may be necessary to carry out the
purposes of . . . (its creation.)."

xxx
 Executive Order No. 2 gives additional and more specific data
and directions respecting "the recovery of ill-gotten properties
amassed by the leaders and supporters of the previous regime." It
declares that:

1) ". . . the Government of the Philippines is in possession of

evidence showing that there are assets and properties purportedly
pertaining to former Ferdinand E. Marcos, and/or his wife Mrs.
Imelda Romualdez Marcos, their close relatives, subordinates,
business associates, dummies, agents or nominees which had been or
were acquired by them directly or indirectly, through or as a result of
the improper or illegal use of funds or properties owned by the
government of the Philippines or any of its branches,
instrumentalities, enterprises, banks or financial institutions, or by
taking undue advantage of their office, authority, influence,
connections or relationship, resulting in their unjust enrichment and
causing grave damage and prejudice to the Filipino people and the
Republic of the Philippines;" and

2) ". . . said assets and properties are in the form of bank

accounts, deposits, trust accounts, shares of stocks, buildings,
shopping centers, condominiums, mansions, residences, estates, and
other kinds of real and personal properties in the Philippines and in
various countries of the world."

xxx

A third executive order is relevant: Executive Order No. 14, by

which the PCGG is empowered, "with the assistance of the Office of
the Solicitor General and other government agencies, . . . to file and
prosecute all cases investigated by it . . . as may be warranted by its
findings." All such cases, whether civil or criminal, are to be filed
"with the Sandiganbayan, which shall have exclusive and original
jurisdiction thereof." Executive

Order No. 14 also pertinently provides that "(c)ivil suits for restitution,
reparation of damages, or indemnification for consequential damages,
 forfeiture proceedings provided for under Republic Act No. 1379, or
any other civil actions under the Civil Code or other existing laws, in
connection with . . . (said Executive Orders Numbered 1 and 2) may
be filed separately from and proceed independently of any criminal
proceedings and may be proved by a preponderance of evidence;" and
that, moreover, the "technical rules of procedure and evidence shall
not be strictly applied to . . . (said) civil cases."[27]

Executive Order No. 14, as amended by E.O. No. 14-A, defines

the jurisdiction over cases involving the ill-gotten wealth of former
President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, members of
their immediate family, close relatives, subordinates, close and/or
business associates, dummies, agents and nominees. [28] It is Section
5 thereof, as amended, which authorizes the PCGG to grant
immunity from criminal prosecution, in the following manner:

Sec. 5. The Presidential Commission on Good Government is

authorized to grant immunity from criminal prosecution to any
person who provides information or testifies in any investigation
conducted by such Commission to establish the unlawful manner
in which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case
where such information or testimony is necessary to ascertain or
prove the latter's guilt or his civil liability. The immunity thereby
granted shall be continued to protect the witness who repeats such
testimony before the Sandiganbayan when required to do so by the
latter or by the Commission.[29]

From these premises, we can draw useful conclusions. Section

5 is worded in such a manner as it does not provide any express
limitations as to the scope of immunity from criminal prosecution
that the PCGG is authorized to grant. The qualifications that
Section 5 do provide relate to the character of the information or
testimony before the PCGG of the grantee of immunity, namely, that
it establish[es] the unlawful manner in which any respondent,
defendant or accused has acquired or accumulated the property or
properties in question in any case where such information or
testimony is necessary to ascertain or prove the latter's guilt or his
civil liability.

While there is no doubt that the information or testimony of

the grantee must pertain to the manner of acquisition of ill-gotten
wealth by the Marcoses, their close relatives and associates, the
question now before us is whether the available immunity from
criminal prosecution relates only to the prosecution of the grantee
in like minded cases. The Sandiganbayan opined in the affirmative,
declaring that [t]he charges of malversation and failure to render an
account cannot be considered within the purview of the immunity
granted to Tanchanco by the PCGG, since the offenses are not
related to or connected with the testimony or information furnished
by Tanchanco in a proceeding concerning the recovery of the
purported ill-gotten wealth of the former President, his relatives and
associates.[30] We are constrained to disagree.

The Court has been called upon before to construe Section 5

of E.O. No. 14-A. As earlier noted, the Court in Mapa[31] held that
the power of the Sandiganbayan to review such grant of immunity
by the PCGG could go no further than to pass upon its procedural
regularity. In Chavez v. PCGG,[32] the Court reiterated that the
conditions under which the PCGG may grant criminal immunity
were: (1) the person to whom criminal immunity is granted provides
information or testifies in an investigation conducted by the
Commission; (2) the information or testimony pertains to the
unlawful manner in which the respondent, defendant or accused
acquired or accumulated ill-gotten property; and (3) such
information or testimony is necessary to ascertain or prove guilt or
civil liability of such individual.[33]

The Court in both cases adverted to the same characterization

of criminal immunity under Section 5. Notably, the Court did not
affirm the belief that the scope of criminal immunity was limited to
any class of criminal acts, offenses, or casesunderstandable
considering that Section 5 does not make any such qualification.
Moreover, our ruling in Mapa went as far as to squarely characterize
the witness under Section 5 of E.O. No. 14-A as completely
immunized from prosecution.[34] In the same case, the Court even
upheld the immunity granted to petitioners Mapa and Vergara
despite the fact that the PCGG subsequently reversed track and
acceded to the prosecution of the said petitioners.

To be certain, the Sandiganbayans conclusion in this case is

not entirely off-base. We have recognized in this jurisdiction that
American common law generally recognizes two kinds of statutory
criminal immunity available to a witness: transactional immunity
and the use-and-derivative-use immunity.[35] Transactional
immunity is broader in the scope of its protection. By its grant, a
witness can no longer be prosecuted for any offense whatsoever
arising out of the act or transaction to which the testimony relates.
In contrast, by the grant of useandderivativeuse immunity, a
witness is only assured that his or her particular testimony and
evidence derived from it will not be used against him or her in a
subsequent prosecution.[36]
Applying the broader standard of transactional immunity, it might
be argued that the immunity which the PCGG is authorized to
grant to Tanchanco should pertain only to those acts or offenses
which are the subject of the information or testimony given by him.
Considering though that the applicable law at hand does not make
such a qualification, the adoption of that view would force us into a
concession that the legislative authority to grant criminal immunity
is limited to transactional or useandderivativeuse immunity. We
cannot accept the proposition.

Transactional immunity derives from common-law tradition, which

gives greater deference to the weight of judicial precedents since the
codification of laws by the legislature is atypical in practice. In our
jurisdiction though, the definition of crimes and provision of
criminal penalties are ineluctably within the sole province of the
legislative branch of government. It thus follows that this
prerogative necessarily empowers the legislative to enact conditions
under which a class of persons may be immune from criminal or
civil prosecution. Since the legislature possesses sole discretion to
enact statutes to such effect, it is not obliged to conform with judge-
made standards, or even traditional modalities concerning the grant
of criminal immunity. The solitary limitation on legislative grant of
immunity, as with all other legislative acts, is adherence to the
Constitution.

Another consideration impels us to sustain this broad application of

immunity under Section 5 of E.O. No. 14-A. We cannot ignore the
special circumstances under which the PCGG was created, and the
extra-ordinary powers with which it was vested. The Freedom
Constitution itself, under which regime the body was created,
recognized the need to [r]ecover ill-gotten properties amassed by the
leaders and supporters of the [Marcos] regime. It has been
acknowledged that the PCGG is charged with the herculean task of
bailing the country out of the financial bankruptcy and morass of
the previous regime and returning to the people what is rightfully
theirs.[37] For this reason, the PCGG was granted quasi-judicial
functions[38] encompassing special investigatory and prosecutorial
powers, among them, the power to grant immunity.
In tracing and recovering the colossal sums of ill-gotten wealth, the
PCGG would inevitably collide with powerful interests. Persons who
would be able to assist in the prosecution of cases of ill-gotten
wealth may understandably be hesitant to cooperate with the PCGG
without the assurance of some protection, or perhaps
corresponding benefit on their part. There may be some inherent
unease with the notion that persons may acquit themselves of their
own criminal culpability by striking a deal with the government, yet
the process of compromise has long been allowed in our
jurisdiction, and in the jurisdiction of other states as well. [39] This
holds especially true in the prosecution of ill-gotten wealth cases,
which not only involve monumental amounts, but have also
ineluctably acquired immense symbolic value.

The overwhelming need to prosecute the ill-gotten wealth

cases is entrenched in statute and public policy. The stakes being
as they are, the need is apparent for a highly conducive
environment under which witnesses may be induced to cooperate
with the PCGG in the prosecution of the ill-gotten wealth cases. The
authorization of the PCGG to broadly extend criminal immunity, as
is apparent in the language of Section 5, is attuned to such aims.
Certainly, Section 5 as constructed leads to a reasonable conclusion
that the scope of criminal immunity which the PCGG may offer
need not be limited to prosecution relating to the information or
testimony offered by the witness. And it is apparent on the face of
the Cooperation Agreement with Tanchanco that the PCGG
understood just as well that it had the power to grant criminal
immunity even over such acts which did not directly bear on the
information or testimony.

Our conclusion is also supported by the fact that based on the

PCGG immunity agreements which have come before this Court,
the scope of offered immunity has proven variable. For example, the
grant of immunity accorded by the PCGG to Jose Yao Campos and
his family was qualified only by reference to Section 5 of E.O. No.
14[40]. On the other hand, the immunity received by Placido Mapa
and Lorenzo Vergara was limited over any offense with reference to
which [their] testimony and information are given, including any
offense and commission of which any information, directly or
indirectly derived from such testimony or other information is used
as basis thereof, except a prosecution for perjury and/or giving
false testimony.[41] In Tanchancos case, his entitlement to criminal
immunity applies to three determinate circumstances: for
acts committed while he was in the service of the Marcos
government; acts committed in behalf of the Marcos government;
and any other act revealed by him in the course of his cooperation
with the PCGG.

These variances are indicative of the fact that the PCGG has
the discretion to vest appropriate levels of criminal immunity
according to the particular witness. There are several factors that
may affect this choice, which may include the relative importance of
the witness to the prosecution of ill-gotten wealth cases, the degree
of culpability of such cases, or even the conditions expressed by the
witness as sufficient to induce cooperation. Given the language of
Section 5, we do not doubt the latitude afforded to the PCGG in
determining the extent of criminal immunity it can afford the
cooperative witness. Such is conformable to the unprecedented
power of the PCGG to grant criminal immunity. We made the
following pertinent observations in Mapa:

We observe that in contrast to our other laws on immunity,

section 5 of E.O. No. 14, as amended, confers on the PCGG the
power to grant immunity alone and on its own authority. The
exercise of the power is not shared with any other authority. Nor is
its exercise subject to the approval or disapproval of another agency
of government. The basic reason for vesting the power exclusively on
the PCGG lies in the principles of separation of power. The decision
to grant immunity from prosecution forms a constituent part of the
prosecution process. It is essentially a tactical decision to forego
prosecution of a person for government to achieve a higher
objective. It is a deliberate renunciation of the right of the State to
prosecute all who appear to be guilty of having committed a crime.
Its justification lies in the particular need of the State to obtain the
conviction of the more guilty criminals who, otherwise, will probably
elude the long arm of the law. Whether or not the delicate power
should be exercised, who should be extended the privilege, the
timing of its grant, are questions addressed solely to the sound
judgment of the prosecution. The power to prosecute includes the
right to determine who shall be prosecuted and the corollary right
to decide whom not to prosecute. In reviewing the exercise of
prosecutorial discretion in these areas, the jurisdiction of the
respondent court is limited. For the business of a court of justice is
to be an impartial tribunal, and not to get involved with the success
or failure of the prosecution to prosecute. Every now and then, the
prosecution may err in the selection of its strategies, but such
errors are not for neutral courts to rectify, any more than courts
should correct the blunders of the defense. For fairness demands
 that courts keep the scales of justice at equipoise between and
among all litigants. Due process demands that courts should strive
to maintain the legal playing field perfectly even and perpetually
level.[42]

Certainly, especially since nothing in Section 5 mandates a

minimum standard of criminal immunity, the PCGG was not
obliged to grant Tanchanco so broad an exemption. Yet the extent
to which it did is permissible under E.O. No. 14-A, and we are wont
to uphold the broad grant, especially as it favors a criminal
defendant. Ambiguities in immunity agreements must be construed
against the State,[43] and any question of interpretation must be
resolved in favor of the

defendant,[44] following the underlying fundamental principle that

all doubts must be resolved in favor of the accused.

We are not in accord with the behavior of both the government

and the Sandiganbayan in this case. We have reviewed the pertinent
memoranda prepared respectively by the Commission on Audit and
the Office of the Special Prosecutor which eventually served as the
basis for the institution of the cases. From these documents, it is
clear that no consideration was given to the possible effects of
the Cooperation Agreement on the viability of prosecuting
Tanchanco. The attitude of the investigators and prosecutors
appears to have been to pretend that the Cooperation Agreement did
not exist at all. This fact weakens the believability of belated claims,
raised in opposition to the instant motion to quash/dismiss, that
Tanchanco had actually violated portions of the Cooperation
Agreement. The indications are that the prosecutors, prior to the
institution of the case, had not considered such agreement at all as
a factor, despite the clear language therein.

If indeed the government had known as a fact that Tanchanco

had violated his obligations under the Cooperation Agreement, the
very least it could have done was to notify him of such violations, or
of its intent to rescind the Cooperation Agreement. Vested rights
were at stake which affected the liberty of a person, and any
deprivation or revocation therein could not be effected in so blithe a
fashion as that which occurred in this case.

Neither does it appear that the Sandiganbayan had given

careful consideration to the Cooperation Agreement when it ruled on
the motion to quash/dismiss. It resorted to generalizations such as
the offenses are not related to or connected with the testimony or
information furnished by Tanchanco[45] or the subject matter of the
informations are NFA funds and the records do not indicate that
they have any relation whatsoever to the ill-gotten wealth of the
Marcoses or their cronies.[46]

Yet from the results of the investigations that led to the

institution of the charges, it is clear that the cases against
Tanchanco arose from the following acts or irregularities: (1) the
transfer of NFA funds either to Tanchancos personal account, the
account of Oplan
Wag-Wag, or a private institution; (2) the failure to account for
several classes of funds received by Tanchanco, including
discretionary funds, amounts contributed to the Food Production
and Nutrition Fund, and other donations. From the Pelaez affidavit,
it is clear that the PCGG had precisely investigated the anomalous
transfer of NFA funds during the Marcos Administration,
particularly the use of discretionary or intelligence funds of the
NFA, and that Tanchanco had given information relating to such
investigation.

Faced with these facts, the conclusion of the Sandiganbayan that

the subject informations bore no relation either to the acquisition of
ill-gotten wealth or the investigations of the PCGG is questionable.
It may be within the realm of possibility that at least some of the
charges against Tanchanco pertain to acts he performed for his own
personal benefit, without regard to the scheme implemented for the
acquisition of ill-gotten wealth. Still, neither the Sandiganbayan nor
the prosecution appears to have seriously considered or laid down
such a distinction. And besides, as earlier stated, the scope of
the Cooperation Agreementitself precludes the prosecution of
Tanchanco under the subject charges.

We should observe that the Sandiganbayan First Division, in a

different case, had also considered the application of
the Cooperation Agreement in the criminal prosecution of
Tanchanco. The disposition of the instant motion to quash and/or
dismiss of the Sandiganbayan Second Division pales in comparison
to the judicious deliberation of the First Division, through the late
Presiding Justice Francis Garchitorena. Particularly admirable was
how the First Division had applied this Courts precedents on the
authority of the PCGG to grant criminal immunity, especially Mapa.
The First Division cited the threefold test laid down in Mapa on the
parameters under which the Sandiganbayan could review the grant
of immunity, and arrived at the following crucial conclusions,
namely: (i) that Tanchanco had cooperated with the PCGG in
obtaining information on the Marcos wealth; and (ii) that the PCGG
exercised bona fide judgment in deciding to grant immunity to
Tanchanco. In contrast, the Sandiganbayan Second Division,
without considering Mapa and other relevant precedents, rashly
concluded without palpable basis that the Cooperation
Agreement did not cover the subject charges. [47]

We thus hold that the Cooperation Agreement, validly undertaken

between the PCGG and Tanchanco as it was, precludes the
prosecution of Tanchanco under the subject charges. The
Sandiganbayan acted with grave abuse of discretion in refusing to
dismiss the charges despite its lack of jurisdiction to continue
hearing the cases against Tanchanco. The present petition, insofar
as it relates to Tanchanco, must be granted. It goes without saying
though that this ruling does not shield all grantees under Section 5
of E.O. No. 14-A from all kinds
of criminal prosecution. The extent of immunity available to each
particular grantee depends on their respective immunity
agreements with the PCGG and the surrounding facts.

Lacson Not Entitled To Immunity

A different result must obtain for petitioner Lacson. There is

no legal basis that would preclude his prosecution under the
subject informations. The reason is simple. There is no subsisting
agreement by virtue of which the State granted any kind of
immunity from criminal prosecution to Lacson. Certainly, Lacson
could not inveigh that Tanchancos Cooperation Agreement also
applies as to him since he was not a party thereto. Nor is there, on
the face of the Cooperation Agreement, any evident intention on the
part of the PCGG and Tanchanco to extend the grant of immunity to
other persons as well. Besides, even if there was such intent, it may
be of doubtful validity since the authority of the PCGG to grant
immunity under Section 5-A of E.O. No. 14-A is limited to person[s]
who provide information or testif[y] in any investigation conducted
by [the PCGG].[48]

Criminal immunity must be specifically granted. [49] We cannot

uphold a grant of criminal immunity to a person whom the State
never intended to exempt from prosecution, or who performed no
act to the benefit of the State that may have served as basis for a
possible grant of exemption. It should be emphasized that the grant
of immunity to Tanchanco did not have the effect of obviating all
consequential culpabilities arising from Tanchancos acts. Only
Tanchancos own criminal liability was extirpated, for the reason
that the government saw a higher social value in eliciting
information from him rather than engaging in his prosecution. No
correlative tradeoff occurred as to Lacson, so we do not see any
reason in law or in equity to exempt him as well.

It may seem unsettling to some that Lacson will have to

endure criminal prosecution while Tanchanco would be discharged,
or that Tanchanco will need not answer for whatever culpable acts
of his during his service in the Marcos government. Yet the Court is
not the guarantor of karmic warrants, but only of legal ones.
The Cooperation Agreement, entered into in the judgment of the
State that it would serve a higher end of justice, is a valid
document, enforceable as to Tanchanco before this Court and other
courts of the land.

WHEREFORE, the petition is GRANTED IN PART. The Court

hereby orders the DISMISSAL of the SUBJECT CRIMINAL CASES
INSOFAR AS PETITIONER JESUS TANCHANCO IS CONCERNED.
No pronouncement as to costs.

SO ORDERED.

XVIII.10 UNITED STATES, PETITIONER v. ALOYZAS BALSYS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
[June 25, 1998]
Justice Souter delivered the opinion of the Court. 1

By administrative subpoena, the Office of Special Investigations of the

Criminal Division of the United States Department of Justice (OSI) sought
testimony from the respondent, Aloyzas Balsys, about his wartime
activities between 1940 and 1944 and his immigration to the United
States in 1961. Balsys declined to answer such questions, claiming
the Fifth Amendment privilege against self-incrimination, based on his
fear of prosecution by a foreign nation. We hold that concern with foreign
prosecution is beyond the scope of the Self-Incrimination Clause.

I
Respondent Aloyzas Balsys is a resident alien living in Woodhaven, New
York, having obtained admission to this country in 1961 under the
Immigration and Nationality Act, 8 U.S.C. 1201 on an immigrant visa and
alien registration issued at the American Consulate in Liverpool. In his
application, he said that he had served in the Lithuanian army between
1934 and 1940, and had lived in hiding in Plateliai, Lithuania, between
1940 and 1944. Balsys swore that the information was true, and signed a
statement of understanding that if his application contained any false
information or materially misleading statements, or concealed any
material fact, he would be subject to criminal prosecution and
deportation.
OSI, which was created to institute denaturalization and deportation
proceedings against suspected Nazi war criminals, is now investigating
whether, contrary to his representations, Balsys participated in Nazi
persecution during World War II. Such activity would subject him to
deportation for persecuting persons because of their race, religion,
national origin, or political opinion under 1182(a)(3)(E), 1251(a)(4)(D) as
well as for lying on his visa application under 1182(a)(6)(C)(i), 1251(a)
(1)(A).
When OSI issued a subpoena requiring Balsys to testify at a deposition, he
appeared and gave his name and address, but he refused to answer any
other questions, such as those directed to his wartime activities in Europe
between 19401945 and his immigration to the United States in 1961. In
response to all such questions, Balsys invoked the Fifth
Amendment privilege against compelled self-incrimination, claiming that
his answers could subject him to criminal prosecution. He did not contend
that he would incriminate himself under domestic law, but claimed the
2

privilege because his responses could subject him to criminal prosecution

by Lithuania, Israel, and Germany.
OSI responded with a petition in Federal District Court to enforce the
subpoena under 1225(a). Although the District Court found that if Balsys
were to provide the information requested, he would face a real and
substantial danger of prosecution by Lithuania and Israel (but not by
Germany), it granted OSIs enforcement petition and ordered Balsys to
testify, treating the Fifth Amendment as inapplicable to a claim of
incrimination solely under foreign law. 918 F. Supp. 588 (EDNY 1996).
Balsys appealed, and the Court of Appeals for the Second Circuit vacated
the District Courts order, holding that a witness with a real and
substantial fear of prosecution by a foreign country may assert the Fifth
Amendment privilege to avoid giving testimony in a domestic proceeding,
even if the witness has no valid fear of a criminal prosecution in this
country. 119 F.3d 122 (1997). We granted certiorari to resolve a conflict
among the Circuits on this issue and now reverse.
3

II
The Self-Incrimination Clause of the Fifth Amendment provides that [n]o
person shall be compelled in any criminal case to be a witness against
himself. U.S. Const., Amdt. 5. Resident aliens such as Balsys are
considered persons for purposes of the Fifth Amendment and are
entitled to the same protections under the Clause as citizens. See Kwong
Hai Chew v. Colding,344 U.S. 590, 596 (1953). The parties do not dispute
that the Government seeks to compel testimony from Balsys that would
make him a witness against himself. The question is whether there is a
risk that Balsyss testimony will be used in a proceeding that is a
criminal case.
Balsys agrees that the risk that his testimony might subject him to
deportation is not a sufficient ground for asserting the privilege, given the
civil character of a deportation proceeding.
See INS v. Lopez&nbhyph;Mendoza, 468 U.S. 1032, 10381039 (1984). If,
however, Balsys could demonstrate that any testimony he might give in
the deportation investigation could be used in a criminal proceeding
against him brought by the Government of either the United States or one
of the States, he would be entitled to invoke the privilege. It can be
asserted in any proceeding, civil or criminal, administrative or judicial,
investigatory or adjudicatory, in which the witness reasonably believes
that the information sought, or discoverable as a result of his testimony,
could be used in a subsequent state or federal criminal
proceeding. Kastigar v. United States, 406 U.S. 441, 444445 (1972); see
also McCarthy v. Arndstein, 266 U.S. 34, 40 (1924) (the privilege applies
alike to civil and criminal proceedings, wherever the answer might tend
to subject to criminal responsibility him who gives it). But Balsys makes
no such claim, contending rather that his entitlement to invoke the
privilege arises because of a real and substantial fear that his testimony
could be used against him by Lithuania or Israel in a criminal prosecution.
The reasonableness of his fear is not challenged by the Government, and
we thus squarely face the question whether a criminal prosecution by a
foreign government not subject to our constitutional guarantees presents
a criminal case for purposes of the privilege against self-incrimination.

III
Balsys relies in the first instance on the textual contrast between
the Sixth Amendment, which clearly applies only to domestic criminal
proceedings, and the compelled self-incrimination Clause, with its facially
broader reference to any criminal case. The same point is developed by
Balsyss amici, who argue that any criminal case means exactly that,
4

regardless of the prosecuting authority. According to the argument, the

Framers use of the adjective any precludes recognition of the
distinction raised by the Government, between prosecution by a
jurisdiction that is itself bound to recognize the privilege and prosecution
by a foreign jurisdiction that is not. But the argument overlooks the
cardinal rule to construe provisions in context. See King v. St. Vincents
Hospital, 502 U.S. 215, 221 (1991). In the Fifth Amendment context, the
Clause in question occurs in the company of guarantees of grand jury
proceedings, defense against double jeopardy, due process, and
compensation for property taking. Because none of these provisions is
implicated except by action of the government that it binds, it would
have been strange to choose such associates for a Clause meant to take a
broader view, and it would be strange to find such a sweep in the Clause
now. See Wharton v. Wise, 153 U.S. 155, 169170 (1894) (noscitur a
sociis); see also Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (same).
The oddity of such a reading would be especially stark if the expansive
language in question is open to another reasonable interpretation, as we
think it is. Because the Fifth Amendment opens by requiring a grand jury
indictment or presentment for a capital, or otherwise infamous
crime, the phrase beginning with any in the subsequent Self-
5

Incrimination Clause may sensibly be read as making it clear that the

privilege it provides is not so categorically limited. It is plausible to
suppose the adjective was inserted only for that purpose, not as taking
the further step of defining the relevant prosecutorial jurisdiction
internationally. We therefore take this to be the fair reading of the
adjective any, and we read the Clause contextually as apparently
providing a witness with the right against compelled self-incrimination
when reasonably fearing prosecution by the government whose power the
Clause limits, but not otherwise. Since there is no helpful legislative
history, and because there was no different common law practice at the
6

time of the Framing, see Part III

C, infra; cf. Counselman v. Hitchcock, 142 U.S. 547, 563564 (1892)
(listing a sample of cases, including pre-framing cases, in which the
privilege was asserted, none of which involve fear of foreign prosecution),
there is no reason
to disregard the contextual reading. This Courts precedent has indeed
adopted that so-called same-sovereign interpretation.

A
The currently received understanding of the Bill of Rights as instituted to
curtail and restrict the general powers granted to the Executive,
Legislative, and Judicial Branches of the National Government defined in
the original constitutional articles, New York Times Co. v. United
States,403 U.S. 713, 716 (1971) (per curiam) (Black, J., concurring)
(emphasis deleted), was expressed early on in Chief Justice Marshalls
opinion for the Court in the leading case of Barron ex rel.
Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247 (1833): the Constitutions
limitations on power are naturally, and, we think, necessarily
applicable to the government created by the instrument, and not to
distinct [state] governments, framed by different persons and for
different purposes.
To be sure, it would have been logically possible to decide (as in Barron)
that the distinct [state] governments framed for different purposes
were beyond the ambit of the Fifth Amendment, and at the same time to
hold that the self-incrimination privilege, good against the National
Government, was implicated by fear of prosecution in another
jurisdiction. But after Barron and before the era of Fourteenth
Amendment incorporation, that would have been an unlikely doctrinal
combination, and no such improbable development occurred.
The precursors of todays case were those raising the question of the
significance for the federal privilege of possible use of testimony in state
prosecution. Only a handful of early cases even touched on the problem.
In Brown v. Walker, 161 U.S. 591 (1896), a witness raised the issue,
claiming the privilege in a federal proceeding based on his fear of
prosecution by a State, but we found that a statute under which immunity
from federal prosecution had been conferred provided for immunity from
state prosecution as well, obviating any need to reach the issue
raised. Id., at 606608. In Jack v. Kansas, 199 U.S. 372 (1905),
a Fourteenth Amendment case, we affirmed a sentence for contempt
imposed on a witness in a state proceeding who had received immunity
from state prosecution but refused to answer questions based on a fear
that they would subject him to federal prosecution. Although there was
no reasonable fear of a prosecution by the National Government in that
case, we addressed the question whether a self-incrimination privilege
could be invoked in the one jurisdiction based on fear of prosecution by
the other, saying that [w]e think the legal immunity is in regard to a
prosecution in the same jurisdiction, and when that is fully given it is
enough. Id., at 382. A year later, in the course of considering whether a
federal witness, immunized from federal prosecution, could invoke the
privilege based on fear of state prosecution, we adopted the general
proposition that the possibility that information given by the witness
might be used by the other government is, as a matter of law, a danger
so unsubstantial and remote that it fails to trigger the right to invoke
the privilege. Hale v. Henkel, 201 U.S. 43, 69 (1906).
[I]f the argument were a sound one it might be carried still further and
held to apply not only to state prosecutions within the same jurisdiction,
but to prosecutions under the criminal laws of other States to which the
witness might have subjected himself. The question has been fully
considered in England, and the conclusion reached by the courts of that
country [is] that the only danger to be considered is one arising within the
same jurisdiction and under the same sovereignty. Queen v. Boyes, 1 B. &
S. 311[, 121 Eng. Rep. 730]; King of the Two Sicilies v. Willcox, 7 State
Trials (N. S.), 1049, 1068; State v. March, 1 Jones (N. Car.),
526; State v. Thomas, 98 N. Car. 599. Ibid.
A holding to this effect came when United States v. Murdock, 284 U.S.
141 (1931), definitely settled the question whether in a federal
proceeding the privilege applied on account of fear of state prosecution,
concluding that one under examination in a federal tribunal could not
refuse to answer on account of probable incrimination under state
law. United States v. Murdock, 290 U.S. 389, 396 (1933).
The English rule of evidence against compulsory self-incrimination, on
which historically that contained in the Fifth Amendment rests, does not
protect witnesses against disclosing offenses in violation of the laws of
another country. King of the Two Sicilies v. Willcox, 7 State Trials (N. S.)
1050, 1068. Queen v. Boyes, 1 B. & S., at 330[, 121 Eng. Rep., at 738].
This court has held that immunity against state prosecution is not
essential to the validity of federal statutes declaring that a witness shall
not be excused from giving evidence on the ground that it will incriminate
him, and also that the lack of state power to give witnesses protection
against federal prosecution does not defeat a state immunity statute. The
principle established is that full and complete immunity against
prosecution by the government compelling the witness to answer is
equivalent to the protection furnished by the rule against compulsory
self-incrimination.Counselman v. Hitchcock, 142 U.S.
547. Brown v. Walker, 161 U.S. 591, 606; Jack v. Kansas, 199 U.S. 372,
381. Hale v. Henkel, 201 U.S. 43, 68. As appellee at the hearing did not
invoke protection against federal prosecution, his plea is without merit
and the governments demurrer should have been sustained. Murdock,
284 U.S., at 149.
Murdocks resolution of the question received a subsequent complement
when we affirmed again that a State could compel a witness to give
testimony that might incriminate him under federal
law, see Knapp v. Schweitzer, 357 U.S. 371 (1958), overruled
by Murphy v. Waterfront Commn of N. Y. Harbor, 378 U.S. 52 (1964),
testimony that we had previously held to be admissible into evidence in
the federal courts, see Feldman v. United States, 322 U.S. 487 (1944),
overruled by Murphy, 378 U.S., at 80.

B
It has been suggested here that our precedent addressing fear of
prosecution by a government other than the compelling authority fails to
reflect the Murdock rule uniformly. In 1927 (prior to our decision
in Murdock), in a case involving a request for habeas relief from a
deportation order, we declined to resolve whether the Fifth
Amendment guarantees immunity from self-incrimination under state
statutes. United States ex rel. Vajtauer v. Commissioner of
Immigration, 273 U.S. 103, 113 (1927). Although we found that the
witness had waived his claim to the privilege, our decision might be read
to suggest that there was some tension between the reasoning of two of
the cases discussed above, Hale v. Henkel and Brown v. Walker, and the
analyses contained in two others, United States v. Saline Bank of Va., 1
Pet. 100 (1828), and Ballmann v. Fagin, 200 U.S. 186 (1906). Ibid. These
last two cases have in fact been cited here for the claim that prior to due
process incorporation, the privilege could be asserted in a federal
proceeding based on fear of prosecution by a State. Saline
7

Bank and Ballmann, are not, however, inconsistent with Murdock.

In Saline Bank, we permitted the defendants to refuse discovery sought
by the United States in federal court, where the defendants claimed that
their responses would result in incrimination under the laws of Virginia.
The rule clearly is, that a party is not bound to make any discovery
which would expose him to penalties, and this case falls within it. 1
Pet., at 104. But, for all the sweep of this statement, the opinion makes
no mention of the Fifth Amendment, and in Hale v. Henkel, we explained
that the prosecution [in Saline Bank] was under a state law which
imposed the penalty, and the Federal court was simply administering
the state law. 201 U.S., at 69. The state law, which addresses
prosecutions brought by the State, suggested the rule that the Saline
Bank Court applied to the case before it; the law provided that no
disclosure made by any party defendant to such suit in equity, and no
books or papers exhibited by him in answer to the bill, or under the order
of the Court, shall be used as evidence against him in any prosecution
under this law, quoted in 1 Pet., at 104. Saline Bank, then, may have
turned on a reading of state statutory law. Cf. McNaughton, Self-
Incrimination Under Foreign Law, 45 Va. L. Rev. 1299, 1305-1306 (1959)
(suggesting that Saline Bank represents an application not of the
privilege against self-incrimination . . . but of the principle that equity
will not aid a forfeiture). But see Ballmann, 200 U.S., at 195 (Holmes,
J.) (suggesting that Saline Bank is a Fifth Amendment case, though this
view was soon repudiated by the Court in Hale, as just noted).
Where Saline Bank, is laconic, Ballmann is equivocal. While Ballmann
specifically argued only the danger of incriminating himself under state
law as his basis for invoking the privilege in a federal proceeding, and we
upheld his claim of privilege, our opinion indicates that we concluded
that Ballmann might have had a fear of incrimination under federal law as
well as under state law. While we did suggest, contrary to
the Murdock rule, that Ballmann might have been able to invoke the
privilege based on a fear of state prosecution, the opinion says only that
[o]ne way or the other [due to the risk of incrimination under federal or
state law] we are of opinion that Ballmann could not be required to
produce his cash book if he set up that it would tend to criminate him.
200 U.S., at 195196. At its equivocal worst, Ballmann reigned for only
two months. Hale v. Henkel explained that the only danger to be
considered is one arising within the same jurisdiction and under the same
sovereignty, 201 U.S., at 69, and Ballmann and Saline Bank were later, of
course, superseded by Murdock with its unequivocal holding that
prosecution in a state jurisdiction not bound by the Clause is beyond the
purview of the privilege.

C
In 1964 our precedent took a turn away from the unqualified proposition
that fear of prosecution outside the jurisdiction seeking to compel
testimony did not implicate a Fifth or Fourteenth Amendment privilege,
as the case might be. In Murphy v. Waterfront Commn of N. Y.
Harbor, 378 U.S. 52 (1964), we reconsidered the converse of the situation
in Murdock, whether a witness in a state proceeding who had been
granted immunity from state prosecution could invoke the privilege based
on fear of prosecution on federal charges. In the course of enquiring into
a work stoppage at several New Jersey piers, the Waterfront Commission
of New York Harbor subpoenaed the defendants, who were given
immunity from prosecution under the laws of New Jersey and New York.
When the witnesses persisted in refusing to testify based on their fear of
federal prosecution, they were held in civil contempt, and the order was
affirmed by New Jerseys highest court. In re Application of the
Waterfront Commn of N. Y. Harbor, 39 N. J. 436, 449, 189 A. 2d 36, 44
(1963). This Court held the defendants could be forced to testify not
because fear of federal prosecution was irrelevant but because the Self-
Incrimination Clause barred the National Government from using their
state testimony or its fruits to obtain a federal conviction. We explained
that the constitutional privilege against self-incrimination protects a
state witness against incrimination under federal as well as state law and
a federal witness against incrimination under state as well as federal
law. 378 U.S., at 7778.
Murphy is a case invested with two alternative rationales. Under the first,
the result reached in Murphy was undoubtedly correct, given the decision
rendered that very same day in Malloy v. Hogan, 378 U.S. 1 (1964), which
applied the doctrine of Fourteenth Amendment due process incorporation
to the Self-Incrimination Clause, so as to bind the States as well as the
National Government to recognize the privilege. Id., at 3. Prior to Malloy,
the Court had refused to impose the privilege against self-incrimination
against the States through the Fourteenth Amendment,
see Twining v. New Jersey, 211 U.S. 78 (1908), thus leaving state-court
witnesses seeking exemption from compulsion to testify to their rights
under state law, as supplemented by the Fourteenth Amendments
limitations on coerced confessions. Malloy, however, established that
[t]he Fourteenth Amendment secures against state invasion the same
privilege that the Fifth Amendment guarantees against federal
infringementthe right of a person to remain silent unless he chooses to
speak in the unfettered exercise of his own will, and to suffer no penalty
for such silence. 378 U.S., at 8.
As the Court immediately thereafter said
in Murphy, Malloy necessitate[d] a reconsideration of the
unqualified Murdock rule that a witness subject to testimonial compulsion
in one jurisdiction, state or federal, could not plead fear of prosecution in
the other. 378 U.S., at 57. After Malloy, the Fifth Amendment limitation
could no longer be seen as framed for one jurisdiction alone, each
jurisdiction having instead become subject to the same claim of privilege
flowing from the one limitation. Since fear of prosecution in the one
jurisdiction bound by the Clause now implicated the very privilege binding
upon the other, the Murphy opinion sensibly recognized that if a witness
could not assert the privilege in such circumstances, the witness could be
whipsawed into incriminating himself under both state and federal law
even though the constitutional privilege against self-incrimination is
applicable to each. 378 U.S., at 55 (internal quotation marks
omitted). The whipsawing was possible owing to a feature unique to the
8

guarantee against self-incrimination among the several Fifth

Amendment privileges. In the absence of waiver, the other such
guarantees are purely and simply binding on the government. But under
the Self-Incrimination Clause, the government has an option to exchange
the stated privilege for an immunity to prosecutorial use of any
compelled inculpatory testimony. Kastigar v. United States, 406 U.S., at
448449. The only condition on the government when it decides to offer
immunity in place of the privilege to stay silent is the requirement to
provide an immunity as broad as the privilege itself. Id., at 449.
After Malloy had held the privilege binding on the state jurisdictions as
well as the National Government, it would therefore have been
intolerable to allow a prosecutor in one or the other jurisdiction to
eliminate the privilege by offering immunity less complete than the
privileges dual jurisdictional reach. Murphy accordingly held that a
federal court could not receive testimony compelled by a State in the
absence of a statute effectively providing for federal immunity, and it did
this by imposing an exclusionary rule prohibiting the National Government
from making any such use of compelled testimony and its fruits, 378
U.S., at 79 (footnote omitted).
This view of Murphy as necessitated by Malloy was adopted in the
subsequent case of Kastigar v. United States, 406 U.S., at 456, n. 42
(Reconsideration of the rule that the Fifth Amendment privilege does not
protect a witness in one jurisdiction against being compelled to give
testimony that could be used to convict him in another jurisdiction was
made necessary by the decision in Malloy v. Hogan). Read this
way, Murphy rests upon the same understanding of the Self-Incrimination
Clause that Murdock recognized and to which the earlier cases had
pointed. Although the Clause serves a variety of interests in one degree or
another, see Part IV, infra, at its heart lies the principle that the courts of
a government from which a witness may reasonably fear prosecution may
not in fairness compel the witness to furnish testimonial evidence that
may be used to prove his guilt. After Murphy, the immunity option open
to the Executive Branch could only be exercised on the understanding
that the state and federal jurisdictions were as one, with a federally
mandated exclusionary rule filling the space between the limits of state
immunity statutes and the scope of the privilege. As so
9

understood, Murphy stands at odds with Balsyss claim.

There is, however, a competing rationale in Murphy, investing the Clause
with a more expansive promise. The Murphy majority opened the door to
this view by rejecting this Courts previous understanding of the English
common-law evidentiary privilege against compelled self-incrimination,
which could have informed the Framers understanding of the Fifth
Amendment privilege. See, e.g., Murphy, 378 U.S., at 67
(rejecting Murdocks analysis of the scope of the privilege under English
common law). Having removed what it saw as an unjustified, historically
derived limitation on the privilege, the Murphy Court expressed a
comparatively ambitious conceptualization of personal privacy underlying
the Clause, one capable of supporting, if not demanding, the scope of
protection that Balsys claims. As the Court of Appeals recognized, if we
take the Murphy opinion at face value, the expansive rationale can be
claimed quite as legitimately as the Murdock-Malloy-
Kastigar understanding of Murphys result, and Balsyss claim accordingly
requires us to decide whether Murphys innovative side is as sound as its
traditional one. We conclude that it is not.
As support for the view that the Court had previously misunderstood the
English rule, Murphy relied, first, on two pre-constitutional English
cases, East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010 (Ex.
1749), and Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157 (Ch.
1750), for the proposition that a witness in an English court was
permitted to invoke the privilege based on fear of prosecution in a foreign
jurisdiction. See 378 U.S., at 5859. Neither of these cases is on point as
holding that proposition, however. In East India Co., a defendant before
the Court of Exchequer, seeking to avoid giving an explanation for his
possession of certain goods, claimed the privilege on the ground that his
testimony might subject him to a fine or corporal punishment. The Court
of Exchequer found that the defendant would be punishable in Calcutta,
then an English Colony, and said it would not oblige one to discover that,
which, if he answers in the affirmative, will subject him to the
punishment of a crime. 1 Ves. sen., at 247, 27 Eng. Rep., at 1011.
In Brownsword, a defendant before the Court of Chancery claimed the
privilege on the ground that her testimony could render her liable to
prosecution in an English ecclesiastical court. The general rule," the
court said, "is that no one is bound to answer so as to subject himself to
punishment, whether that punishment arises by the ecclesiastical law of
the land. 2 Ves. sen., at 245, 28 Eng. Rep., at 158. Although this
statement, like its counterpart in East India Co., is unqualified, neither
case is authority for the proposition that fear of prosecution in foreign
courts implicates the privilege. For in each of these cases, the judicial
system to which the witnesss fears related was subject to the same
legislative sovereignty that had created the courts in which the privilege
was claimed. In fact, when these cases were decided, and for years after
10

adoption of the Fifth Amendment, English authority was silent on whether

fear of prosecution by a foreign nation implicated the privilege, and the
Vice-Chancellor so stated in 1851. See King of the Two Sicilies v. Willcox,
1 Sim. (N. S.) 301, 331, 61 Eng. Rep. 116, 128 (Ch. 1851) (observing, in
the course of an opinion that clearly involved a claim of privilege based
on the fear of prosecution by another sovereign, that there is an absence
of all authority on the point).
Murphy, in fact, went on to discuss the case last cited, as well as a
subsequent one. The Murphy majority began by acknowledging that King
of the Two Sicilies was not authority for attacking this Courts prior view
of English law. 378 U.S., at 60. In an opinion by Lord Cranworth, the Court
of Chancery declined to allow defendants to assert the privilege based on
their fear of prosecution in Sicily, for two reasons. 1 Sim. (N. S.), at 329,
61 Eng. Rep., at 128. The first was the courts belief that the privilege
speaks only to matters that might be criminal under the laws of England:
The rule relied on by the Defendants, is one which exists merely by
virtue of our own municipal law, and must, I think, have reference
exclusively to matters penal by that law: to matters as to which, if
disclosed, the Judge would be able to say, as matter of law, whether it
could or could not entail penal consequences. For the second, the court
relied on the unlikelihood that the defendants would ever leave England
and be subject to Sicilian prosecution.
The Murphy majority nonetheless understood this rule to have been
undermined by the subsequent case of United States of America v.
McRae, 3 L. R. Ch. 79 (1867). See 378 U.S., at 61. In that suit brought by
the United States against McRae in England to recover funds that he had
collected there as a Confederate agent during the Civil War, the court
recognized the privilege based on McRaes claim that his testimony would
incriminate him in the United States. The court distinguished the
litigation then before it from King of the Two Sicilies, indicating that
though it agreed with the general principles stated by Lord Cranworth,
see 3 L. R. Ch., at 84, he had not needed to lay down the broad
proposition that invocation of the privilege was appropriate only with
regard to matters penal under Englands own law, see id., at 85. The
court did not say that the privilege could be invoked in any case involving
fear of prosecution under foreign law, however. Instead it noted two
distinctions from King of the Two Sicilies, the first being that the
presumed ignorance of the Judge as to foreign law on which King of the
Two Sicilies rested has been completely removed by the admitted
statements upon the pleadings, 3 L. R. Ch., at 84; the second being
that McRae presented the unusual circumstance that the party seeking to
compel the testimony, the United States, was also the party that would
prosecute any crime under its laws that might thereby be
revealed, id., at 87. The courts holding that the privilege could be
invoked in such circumstances does not, however, support a general
application of the privilege in any case in which a witness fears
prosecution under foreign law by a party not before the court.
Thus, Murphy went too far in saying that McRae overruled King of the
Two Sicilies. See Murphy, 378 U.S., at 71. What is of more fundamental
11

importance, however, is that even if McRae had announced a new

development in English law going to the heart of King of the Two
Sicilies, it would have been irrelevant to Fifth Amendment interpretation.
The presumed influence of English law on the intentions of the Framers
hardly invests the Framers with clairvoyance, and subsequent English
developments are not attributable to the Framers by some rule of renvoi.
Cf. Brown, 161 U.S., at 600 (citing Cathcart v. Robinson, 5 Pet. 264, 280
(1831)). Since McRae neither stated nor implied any disagreement with
Lord Cranworths 1857 statement in King of the Two Sicilies that there
was no clear prior authority on the question, the Murphy Court had no
authority showing that Murdock rested on unsound historical assumptions
contradicted by opinions of the English courts.
In sum, to the extent that the Murphy majority went beyond its response
to Malloy and undercut Murdocks rationale on historical grounds, its
reasoning cannot be accepted now. Long before today, indeed, Murphys
history was shown to be fatally flawed. 12

D
Although the Court and the dissent differ on details including some
considerations of policy addressed in Part IV, infra, our basic
disagreement with the dissent turns on three points. First, we start with
what we think is the most probable reading of the Clause in its Fifth
Amendment context, as limiting its principle to concern with prosecution
by a sovereign that is itself bound by the Clause; the dissent instead
emphasizes the Clauses facial breadth as consistent with a broader
principle. Second, we rely on the force of our precedent,
notably Murdock, as confirming this same-sovereign principle, as adapted
to reflect the post-Malloy requirement of immunity effective against both
sovereigns subject to the one privilege under the National Constitution;
the dissent attributes less force to Murdock, giving weight to its tension
with the Saline Bank language, among other things. Third, we
reject Murphys restatement of the common-law background and read
none of the common-law cases as authority inconsistent with our
contextual reading of the Clause, later confirmed by precedent such
as Murdock; the dissent finds support in the common-law cases
for Murphys historical reexamination and the broader reading of the
Clause. In the end, our contextual reading of the Clause, combined with
the Murdock holding, places a burden on anyone who contests the basic
same-sovereign principle, a burden that only clear, contrary, pre-Framing
common law might carry; since the dissent starts with a broader reading
of the Clause and a less potent view of Murdock, it does not
require Murphy and the common-law cases to satisfy such a burden before
definitively finding that a more expansive principle underlies the Clause.

IV
There remains, at least on the face of the Murphy majoritys opinion, a
further invitation to revise the principle of the Clause from
what Murdock recognized. The Murphy majority opens its discussion with
a catalog of Policies of the Privilege, 378 U.S., at 55 (citations and
internal quotation marks omitted):
It reflects many of our fundamental values and most noble aspirations:
our unwillingness to subject those suspected of crime to the cruel
trilemma of self-accusation, perjury or contempt; our preference for an
accusatorial rather than an inquisitorial system of criminal justice; our
fear that self-incriminating statements will be elicited by inhumane
treatment and abuses; our sense of fair play which dictates a fair state-
individual balance by requiring the government to leave the individual
alone until good cause is shown for disturbing him and by requiring the
government in its contest with the individual to shoulder the entire load;
our respect for the inviolability of the human personality and of the right
of each individual to a private enclave where he may lead a private life,
our distrust of self-deprecatory statements; and our realization that the
privilege, while sometimes a shelter to the guilty, is often a protection to
the innocent.
Some of the policies listed would seem to point no further than domestic
arrangements and so raise no basis for any privilege looking beyond fear
of domestic prosecution. Others, however, might suggest a concern broad
enough to encompass foreign prosecutions and accordingly to support a
more expansive theory of the privilege than the Murdock understanding
would allow.
The adoption of any such revised theory would, however, necessarily rest
on Murphys reading of preconstitutional common-law cases as support
for (or at least as opening the door to) the expansive view of the Framers
intent, which we and the commentators since Murphy have found to be
unsupported. Once the Murphy majoritys treatment of the English cases
is rejected as an indication of the meaning intended for the
Clause, Murdock must be seen as precedent at odds with Balsyss claim.
That precedent aside, however, we think there would be sound reasons to
stop short of resting an expansion of the Clauses scope on the highly
general statements of policy expressed in the foregoing quotation
from Murphy. While its list does indeed catalog aspirations furthered by
the Clause, its discussion does not even purport to weigh the host of
competing policy concerns that would be raised in a legitimate
reconsideration of the Clauses scope.

A
The most general of Murphys policy items ostensibly suggesting
protection as comprehensive as that sought by Balsys is listed in the
opinion as the inviolability of the human personality and the right of
each individual to a private enclave where he may lead a private life.
378 U.S., at 55 (internal quotation marks omitted). Whatever else those
terms might cover, protection of personal inviolability and the privacy of
a testimonial enclave would necessarily seem to include protection
against the Governments very intrusion through involuntary
interrogation. If in fact these values were reliable guides to the actual
13

scope of protection under the Clause, they would be seen to demand a

very high degree of protection indeed: inviolability is, after all, an
uncompromising term, and we know as well from Fourth Amendment law
as from a laymans common sense that breaches of privacy are complete
at the moment of illicit intrusion, whatever use may or may not later be
made of their fruits. See United States v. Verdugo-Urquidez, 494 U.S. 259,
264 (1990) (citing United States v. Calandra,414 U.S. 338, 354
(1974); United States v. Leon, 468 U.S. 897, 906 (1984)).
The Fifth Amendment tradition, however, offers no such degree of
protection. If the Government is ready to provide the requisite use and
derivative use immunity, see Kastigar, 406 U.S., at 453; see
also Lefkowitz v. Turley, 414 U.S. 70, 84 (1973), the protection goes no
further: no violation of personality is recognized and no claim of privilege
will avail. One might reply that the choice of the word inviolability
14

was just unfortunate; while testimonial integrity may not be inviolable, it

is sufficiently served by requiring the Government to pay a price in the
form of use (and derivative use) immunity before a refusal to testify will
be overruled. But that answer overlooks the fact that when a witnesss
response will raise no fear of criminal penalty, there is no protection for
testimonial privacy at all. See United States v. Ward, 448 U.S. 242, 248
255 (1980).
Thus, what we find in practice is not the protection of personal
testimonial inviolability, but a conditional protection of testimonial
privacy subject to basic limits recognized before the framing and
15

refined through immunity doctrine in the intervening years. Since the

Judiciary could not recognize fear of foreign prosecution and at the same
time preserve the Governments existing rights to seek testimony in
exchange for immunity (because domestic courts could not enforce the
immunity abroad), it follows that extending protection as Balsys requests
would change the balance of private and governmental interests that has
seemingly been accepted for as long as there has been Fifth
Amendment doctrine. The upshot is that accepting personal testimonial
integrity or privacy as a prima facie justification for the development
Balsys seeks would threaten a significant change in the scope of
traditional domestic protection; to the extent, on the other hand, that
the domestic tradition is thought worthy of preservation, an appeal to a
general personal testimonial integrity or privacy is not helpful.
See Doe v. United States, 487 U.S. 201, 213, n. 11 (1988) (finding no
violation of the privilege [d]espite the impact upon the inviolability of
the human personality); Schmerber v. California, 384 U.S. 757, 762
(1966) (holding that a witness cannot rely on the privilege to decline to
provide blood samples) ([T]he privilege has never been given the full
scope which the values that it helps to protect suggest.).

B
Murphys policy catalog would provide support, at a rather more concrete
level, for Balsyss argument that application of the privilege in situations
like his would promote the purpose of preventing government
overreaching, which on anyones view lies at the core of the Clauses
purposes. This argument begins with the premise that cooperative
internationalism creates new incentives for the Government to facilitate
foreign criminal prosecutions. Because crime, like legitimate trade, is
increasingly international, a corresponding degree of international
cooperation is coming to characterize the enterprise of criminal
prosecution. The mission of the OSI as shown in this case exemplifies the
16

international cooperation that is said to undermine the legitimacy of

treating separate governmental authorities as separate for purposes of
liberty protection in domestic courts. Because the Government now has a
significant interest in seeing individuals convicted abroad for their crimes,
it is subject to the same incentive to overreach that has required
application of the privilege in the domestic context. Balsys says that this
argument is nothing more than the reasoning of the Murphy Court when it
justified its recognition of a fear of state prosecution by looking to the
significance of cooperative federalism, the teamwork of state and
national officials to fight interstate crime. 378 U.S., at 5556.
But Balsys invests Murphys cooperative federalism with a significance
unsupported by that opinion. We have already pointed out that Murphys
expansion upon Murdock is not supported by Murphys unsound historical
reexamination, but must rest on Murphys other rationale, under which
its holding is a consequence of Malloy. That latter reading is essential to
an understanding of cooperative federalism. For the Murphy majority,
cooperative federalism was not important standing alone, but simply
because it underscored the significance of the Courts holding that
after Malloy it would be unjustifiably formalistic for a federal court to
ignore fear of state prosecution when ruling on a privilege claim. Thus,
the Court described the whipsaw effect that the decision
in Malloy would have created if fear of state prosecution were not
cognizable in a federal proceeding:
[The] policies and purposes [of the privilege] are defeated when a
witness can be whipsawed into incriminating himself under both state and
federal law even though the constitutional privilege against self-
incrimination is applicable to each. This has become especially true in our
age of cooperative federalism, where the Federal and State
Governments are waging a united front against many types of criminal
activity. 378 U.S., at 5556 (citation and internal quotation marks
omitted).
Since in this case there is no analog of Malloy, imposing the Fifth
Amendment beyond the National Government, there is no premise
in Murphy for appealing to cooperative internationalism by analogy to
cooperative federalism. Any analogy must, instead, be to the pre-
17

Murphy era when the States were not bound by the privilege. Then,
testimony compelled in a federal proceeding was admissible in a state
prosecution, despite the fact that shared values and similar criminal
statutes of the state and national jurisdictions presumably furnished
incentive for overreaching by the Government to facilitate criminal
prosecutions in the States.
But even if Murphy were authority for considering cooperative
federalism and cooperative internationalism as reasons supporting
expansion of the scope of the privilege, any extension would depend
ultimately on an analysis of the likely costs and benefits of extending the
privilege as Balsys requests. If such analysis were dispositive for us, we
would conclude that Balsys has not shown that extension of the
protection would produce a benefit justifying the rule he seeks.
The Court of Appeals directed careful attention to an evaluation of what
would be gained and lost on Balsyss view. It concluded, for example, that
few domestic cases would be adversely affected by recognizing the
privilege based upon fear of foreign prosecution, 119 F.3d, at 135137 ;18

that American contempt sanctions for refusal to testify are so lenient in

comparison to the likely consequences of foreign prosecution that a
witness would
probably refuse to testify even if the privilege were
unavailable to him, id., at 142 (Block, J., concurring); that
by statute and treaty the United States could limit the occasions on which
a reasonable fear of foreign prosecution could be shown, as by modifying
extradition and deportation standards in cases involving the privilege, id.,
at 138139; and that because a witnesss refusal to testify may be used
as evidence in a civil proceeding, deportation of people in Balsyss
position would not necessarily be thwarted by recognizing the privilege as
he claims it, id., at 136.
The Court of Appeals accordingly thought the net burden of the expanded
privilege too negligible to justify denying its expansion. We remain
skeptical, however. While we will not attempt to comment on every
element of the Court of Appealss calculation, two of the points just
noted would present difficulty. First, there is a question about the
standard that should govern any decision to justify a truly discretionary
ruling by making the assumption that it will induce the Government to
adopt legislation with international implications or to seek international
agreements, in order to mitigate the burdens that the ruling would
otherwise impose. Because foreign relations are specifically committed by
the Constitution to the political branches, U.S. Const., Art II, 2, cl. 2, we
would not make a discretionary judgment premised on inducing them to
adopt policies in relation to other nations without squarely confronting
the propriety of grounding judicial action on such a premise.
Second, the very assumption that a witnesss silence may be used against
him in a deportation or extradition proceeding due to its civil nature, 119
F.3d, at 136 (citing Lopez-Mendoza, 468 U.S., at 10381039), raises
serious questions about the likely gain from recognizing fear of foreign
prosecution. For if a witness claiming the privilege ended up in a foreign
jurisdiction that, for whatever reason, recognized no privilege under its
criminal law, the recognition of the privilege in the American courts
would have gained nothing for the witness. This possibility, of course,
presents a sharp contrast with the consequences of recognizing the
privilege based on fear of domestic prosecution. If testimony is
compelled, Murphy itself illustrates that domestic courts are not even
wholly dependent on immunity statutes to see that no use will be made
against the witness; the exclusionary principle will guarantee that.
See Murphy, 378 U.S., at 79. Whatever the cost to the Government may
be, the benefit to the individual is not in doubt in a domestic proceeding.
Since the likely gain to the witness fearing foreign prosecution is thus
uncertain, the countervailing uncertainty about the loss of testimony to
the United States cannot be dismissed as comparatively unimportant.
That some testimony will be lost is highly probable, since the United
States will not be able to guarantee immunity if testimony is compelled
(absent some sort of cooperative international arrangement that we
cannot assume will occur). While the Court of Appeals is doubtless correct
that the expected consequences of some foreign prosecutions may be so
severe that a witness will refuse to testify no matter what, not every
foreign prosecution may measure up so harshly as against the expectable
domestic consequences of contempt for refusing to testify. We therefore
must suppose that on Balsyss view some evidence will in fact be lost to
the domestic courts, and we are accordingly unable to dismiss the
position of the United States in this case, that domestic law enforcement
would suffer serious consequences if fear of foreign prosecution were
recognized as sufficient to invoke the privilege.
In sum, the most we would feel able to conclude about the net result of
the benefits and burdens that would follow from Balsyss view would be a
Scotch verdict. If, then, precedent for the traditional view of the scope of
the Clause were not dispositive of the issue before us, if extending the
scope of the privilege were open to consideration, we still would not find
that Balsys had shown that recognizing his claim would be a sound
resolution of the competing interests involved.

V
This is not to say that cooperative conduct between the United States and
foreign nations could not develop to a point at which a claim could be
made for recognizing fear of foreign prosecution under the Self-
Incrimination Clause as traditionally understood. If it could be said that
the United States and its allies had enacted substantially similar criminal
codes aimed at prosecuting offenses of international character, and if it
could be shown that the United States was granting immunity from
domestic prosecution for the purpose of obtaining evidence to be
delivered to other nations as prosecutors of a crime common to both
countries, then an argument could be made that the Fifth
Amendment should apply based on fear of foreign prosecution simply
because that prosecution was not fairly characterized as distinctly
foreign. The point would be that the prosecution was as much on behalf
of the United States as of the prosecuting nation, so that the division of
labor between evidence-gatherer and prosecutor made one nation the
agent of the other, rendering fear of foreign prosecution tantamount to
fear of a criminal case brought by the Government itself.
Whether such an argument should be sustained may be left at the least
for another day, since its premises do not fit this case. It is true that
Balsys has shown that the United States has assumed an interest in foreign
prosecution, as demonstrated by OSIs mandate and American treaty
19

agreements requiring the Government to give to Lithuania and Israel any

20

evidence provided by Balsys. But this interest does not rise to the level of
cooperative prosecution. There is no system of complementary
substantive offenses at issue here, and the mere support of one nation for
the prosecutorial efforts of another does not transform the prosecution of
the one into the prosecution of the other. Cf. Bartkus v. Illinois, 359 U.S.
121, 122124 (1959) (rejecting double jeopardy claim where federal
officials turned over all evidence they had gathered in connection with
federal prosecution of defendant for use in subsequent state prosecution
of defendant). In this case there is no basis for concluding that the
privilege will lose its meaning without a rule precluding compelled
testimony when there is a real and substantial risk that such testimony
will be used in a criminal prosecution abroad.
***
Accordingly, the judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings consistent with this opinion