Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

143944 July 11, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER BONGCARAWAN y MACARAMBON, accused-appellant. PUNO, J.: This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 64252 as amended, and sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency.1wphi1.nt Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus: "That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug commonly known as Shabu, weighing approximately 400 grams, without the corresponding license or prescription. Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA 7659."3 During the arraignment, the accused pleaded not guilty. Trial ensued. Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her copassengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the economy section.4 The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be "shabu," the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast

Guard for assistance.5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items--the Samsonite suitcase, a brown bag6 and eight (8) small plastic packs of white crystalline substance.7 When asked about the contraband articles, the accused explained that he was just requested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan City.8 The accused and the seized items were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters,9 while the packs of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be methamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams.10 The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small luggage or "maleta" containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers. There, he met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and a woman whom he recognized as his co-passenger at cabin no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and took the big luggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the security personnel. When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and had a secret combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance inside which they suspected to be "shabu." They took pictures of him with the merchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard, then to the PAOCTF.12 On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads: "WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonable doubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency. Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventive detention shall be credited in full in favor of the accused in the service of his sentence. The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the National Bureau of Investigation for proper disposition. SO ORDERED."13

Hence, this appeal where the accused raises the following assignment of errors: "I. THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT. II. THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM."14 On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends thatPeople v. Marti15 is not applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman. The contentions are devoid of merit. The right against unreasonable search and seizure is a fundamental right protected by the Constitution.16Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding.17 Whenever this right is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against transgression committed by the government or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence of governmental interference, liberties guaranteed by the Constitution cannot be invoked against the State."19 The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.20 In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply. There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does not discharge any governmental function. In contrast, police officers are agents of the state tasked with the sovereign function of enforcement of the law. Historically and until now, it is against them and other agents of the state that the protection against unreasonable searches and seizures may be invoked. On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcase and he had no knowledge that the same contained "shabu." He submits that

without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged.21 We are not persuaded. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.22 The first two elements were sufficiently proven in this case, and were in fact undisputed. We are left with the third. As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant conviction, the possession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together with the possession or control of such articles.24 It has been ruled, however, that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation of such possession.25 Hence, the burden of evidence is shifted to the accused to explain the absence of knowledge or animus possidendi.26 In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous, was not given credence by the trial court. We find no reason to disagree. Wellsettled is the rule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed on appeal.27 Moreover, evidence must be credible in itself to deserve credence and weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it would be inspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which had a combination lock known only to the owner remains unclear. He also claims that he did not present his small "maleta" for inspection for fear that its contents consisting of expensive sunglasses and brushes would be confiscated,29 but he brought the Samsonite suitcase which is not his and also contained expensive sunglasses, and even watches.30 The things in possession of a person are presumed by law to be owned by him.31 To overcome this presumption, it is necessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain Alican "Alex" Macapudi as the owner of the contraband, but presented no evidence to support his claim. As aptly observed by the trial judge: "First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of the imagination? He says that Alex Macap[u]di is a friend and a fellow businessman who has a stall selling sunglasses in Marawi City. But no witnesses were presented to prove that there is such a living, breathing, flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused."32 Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the accused-appellant. Stories can easily be fabricated. It will take more than bare-bone allegations to convince this Court that a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the same.1wphi1.nt

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED. Costs against the accused-appellant. SO ORDERED. Panganiban, Sandoval-Gutierrez, and Carpio, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 118127 April 12, 2005

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as councilors of the City of Manila, Petitioner, vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION, Respondents. DECISION TINGA, J.:

I know only that what is moral is what you feel good after and what is immoral is what you feel bad after. Ernest Hermingway Death in the Afternoon, Ch. 1 It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than if performed by someone else, who would be well-intentioned in his dishonesty. J. Christopher Gerald Bonaparte in Egypt, Ch. I The Court's commitment to the protection of morals is secondary to its fealty to the fundamental law of the land. It is foremost a guardian of the Constitution but not the conscience of individuals. And if it need be, the Court will not hesitate to "make the hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional guarantees when faced with laws that, though not lacking in zeal to promote morality, nevertheless fail to pass the test of constitutionality. The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower court),3 is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.4 The antecedents are as follows: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of operating hotels, motels, hostels and lodging houses.5 It built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the Department of Tourism as a hotel.6 On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order7 (RTC Petition) with the lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional.8 Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993, the saidOrdinance is entitled AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.10 The Ordinance is reproduced in full, hereunder: SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person, partnership, corporation or entity shall, in the ErmitaMalate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East,

Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community, such as but not limited to: 1. Sauna Parlors 2. Massage Parlors 3. Karaoke Bars 4. Beerhouses 5. Night Clubs 6. Day Clubs 7. Super Clubs 8. Discotheques 9. Cabarets 10. Dance Halls 11. Motels 12. Inns SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited from issuing permits, temporary or otherwise, or from granting licenses and accepting payments for the operation of business enumerated in the preceding section. SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area, such as but not limited to: 1. Curio or antique shop 2. Souvenir Shops 3. Handicrafts display centers

4. Art galleries 5. Records and music shops 6. Restaurants 7. Coffee shops 8. Flower shops 9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family entertainment that cater to both local and foreign clientele. 10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage and theatrical plays, art exhibitions, concerts and the like. 11. Businesses allowable within the law and medium intensity districts as provided for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral establishments. SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person, the President, the General Manager, or person-in-charge of operation shall be liable thereof; PROVIDED FURTHER, that in case of subsequent violation and conviction, the premises of the erring establishment shall be closed and padlocked permanently. SEC. 5. This ordinance shall take effect upon approval. Enacted by the City Council of Manila at its regular session today, March 9, 1993. Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied) In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments, motels and inns such as MTDC's Victoria Court considering that these were not establishments for "amusement" or "entertainment" and they were not "services or facilities for entertainment," nor did they use women as "tools for entertainment," and neither did they "disturb the community," "annoy the inhabitants" or "adversely affect the social and moral welfare of the community."11 MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv)12 of the Local Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment, operation and maintenance of hotels, motels, inns, pension houses, lodging houses and other similar establishments; (2) The Ordinance is void as it is violative of Presidential Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-Malate area as a commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise of police power as the compulsory closure of the motel business has no reasonable relation

to the legitimate municipal interests sought to be protected; (4) The Ordinance constitutes an ex post facto law by punishing the operation of Victoria Court which was a legitimate business prior to its enactment; (5) The Ordinanceviolates MTDC's constitutional rights in that: (a) it is confiscatory and constitutes an invasion of plaintiff's property rights; (b) the City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging houses or other similar establishments, and for prohibiting said business in the Ermita-Malate area but not outside of this area.14 In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the City Council had the power to "prohibit certain forms of entertainment in order to protect the social and moral welfare of the community" as provided for in Section 458 (a) 4 (vii) of the Local Government Code,16 which reads, thus: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: .... (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: .... (vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation spoken of in the above-quoted provision included the power to control, to govern and to restrain places of exhibition and amusement.18 Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect the social and moral welfare of the community in conjunction with its police power as found in Article III, Section 18(kk) of Republic Act No. 409,19 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila)20 which reads, thus: ARTICLE III THE MUNICIPAL BOARD

. . . Section 18. Legislative powers. The Municipal Board shall have the following legislative powers: . . . (kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months' imprisonment, or both such fine and imprisonment, for a single offense. Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private respondent had the burden to prove its illegality or unconstitutionality.21 Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective in operation.23 The Ordinance also did not infringe the equal protection clause and cannot be denounced as class legislation as there existed substantial and real differences between the Ermita-Malate area and other places in the City of Manila.24 On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte temporary restraining order against the enforcement of the Ordinance.25 And on 16 July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC.26 After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the petitioners from implementing the Ordinance. The dispositive portion of said Decision reads:27 WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of Manila null and void, and making permanent the writ of preliminary injunction that had been issued by this Court against the defendant. No costs. SO ORDERED.28 Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting that they are elevating the case to this Court under then Rule 42 on pure questions of law.30 On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in holding that the questioned Ordinancecontravenes P.D. 49931 which allows operators of all kinds of commercial establishments, except those specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional.32

In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they made before the lower court. They contend that the assailed Ordinance was enacted in the exercise of the inherent and plenary power of the State and the general welfare clause exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code.34 They allege that theOrdinance is a valid exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity.35 In its Memorandum36 dated 27 May 1996, private respondent maintains that the Ordinance is ultra vires and that it is void for being repugnant to the general law. It reiterates that the questioned Ordinance is not a valid exercise of police power; that it is violative of due process, confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative of the equal protection clause; and that it confers on petitioner City Mayor or any officer unregulated discretion in the execution of the Ordinance absent rules to guide and control his actions. This is an opportune time to express the Court's deep sentiment and tenderness for the ErmitaMalate area being its home for several decades. A long-time resident, the Court witnessed the area's many turn of events. It relished its glory days and endured its days of infamy. Much as the Court harks back to the resplendent era of the Old Manila and yearns to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that end. The Court is of the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and therefore null and void. The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates a constitutional provision. The prohibitions and sanctions therein transgress the cardinal rights of persons enshrined by the Constitution. The Court is called upon to shelter these rights from attempts at rendering them worthless. The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.37 Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and to the laws.38 The Ordinance must satisfy two requirements: it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws. That ordinances should be constitutional uphold the principle of the supremacy of the Constitution. The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or exercise powers higher than those of the latter.39 This relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. The national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.40

The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council acting as agent of Congress. Local government units, as agencies of the State, are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation.41 This delegated police power is found in Section 16 of the Code, known as the general welfare clause, viz: SECTION 16. General WelfareEvery local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balance.d ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. Local government units exercise police power through their respective legislative bodies; in this case, thesangguniang panlungsod or the city council. The Code empowers the legislative bodies to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the province/city/ municipality provided under the Code.42 The inquiry in this Petition is concerned with the validity of the exercise of such delegated power. The Ordinance contravenes the Constitution The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable and for the public good.43In the case at bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. The relevant constitutional provisions are the following: SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.44 SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.45 SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of laws.46 Sec. 9. Private property shall not be taken for public use without just compensation.47 A. The Ordinance infringes the Due Process Clause

The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived of life, liberty or property without due process of law. . . ."48 There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice,49 and as such it is a limitation upon the exercise of the police power.50 The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property of individuals; to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the established principles of private rights and distributive justice; to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons equal and impartial justice and the benefit of the general law.51 The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are "persons" within the scope of the guaranty insofar as their property is concerned.52 This clause has been interpreted as imposing two separate limits on government, usually called "procedural due process" and "substantive due process." Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.53 Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person's life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the government's action.54 Case law in the United States (U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used.55 For example, if a law is in an area where only rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose.56 The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically57 as its exercise is subject to a qualification, limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare.58 Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty and property.59 Requisites for the valid exercise of Police Power are not met

To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.60 It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.61 Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into private rights62 a violation of the due process clause. The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila63 had already taken judicial notice of the "alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-seekers."64 The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Council's police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive. It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations looking to the promotion of the moral and social values of the community. However, the worthy aim of fostering public morals and the eradication of the community's social ills can be achieved through means less restrictive of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of businesses or their conversion into businesses "allowed" under the Ordinance have no reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will notper se protect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila. Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like which the City Council may lawfully prohibit,65 it is baseless and insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community. That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the most innocent of places that it may even take place in the

substitute establishments enumerated under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an immoral sexual act transpires in a church cloister or a court chamber, we would behold the spectacle of the City of Manila ordering the closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for that matter will not be exempt from the prohibition. Simply because there are no "pure" places where there are impure men. Indeed, even the Scripture and the Tradition of Christians churches continually recall the presence and universality of sin in man's history.66 The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be injurious to the health or comfort of the community and which in itself is amoral, but the deplorable human activity that may occur within its premises. While a motel may be used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption. If that were so and if that were allowed, then the Ermita-Malate area would not only be purged of its supposed social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not, in its every nook and cranny would be laid bare to the estimation of the authorities. The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinancemay to shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy. While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish even the proprietors and operators of "wholesome," "innocent" establishments. In the instant case, there is a clear invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations;67 and it may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired end. Means employed are constitutionally infirm The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which "to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area." Further, it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the "premises of the erring establishment shall be closed and padlocked permanently."

It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty and property. Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare."68 In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.69 The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the meaning of "liberty." It said: While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognizedas essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. In another case, it also confirmed that liberty protected by the due process clause includes personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, the U.S. Supreme Court explained: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood where they formed under compulsion of the State.71 Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of the Ordinancemay seek autonomy for these purposes. be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution.Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motel's premises72 Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. The liberty protected by the Constitution allows persons the right to make this choice.73 Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.

it is the most comprehensive of rights and the right most valued by civilized men.Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedom74 The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly stated: Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen.76 There is a great temptation to have an extended discussion on these civil liberties but the Court chooses to exercise restraint and restrict itself to the issues presented when it should. The previous pronouncements of the Court are not to be interpreted as a license for adults to engage in criminal conduct. The reprehensibility of such conduct is not diminished. The Court only reaffirms and guarantees their right to make this choice. Should they be prosecuted for their illegal conduct, they should suffer the consequences of the choice they have made. That, ultimately, is their choice. Modality employed is unlawful taking In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property.77 The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation.78 It is intrusive and violative of the private property rights of individuals. The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken for public use without just compensation." The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a person's property to benefit society, then society should pay. The

principal purpose of the guarantee is "to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.79 There are two different types of taking that can be identified. A "possessory" taking occurs when the government confiscates or physically occupies property. A "regulatory" taking occurs when the government's regulation leaves no reasonable economically viable use of the property.80 In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could be found if government regulation of the use of property went "too far." When regulation reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to support the act. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.82 No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and therefore cannot be disposed of by general propositions." On many other occasions as well, the U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and fairness require that the economic loss caused by public action must be compensated by the government and thus borne by the public as a whole, or whether the loss should remain concentrated on those few persons subject to the public action.83 What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use.84A regulation that permanently denies all economically beneficial or productive use of land is, from the owner's point of view, equivalent to a "taking" unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable.85 When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.86 A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action. These inquiries are informed by the purpose of the takings clause which is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.87 A restriction on use of property may also constitute a "taking" if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the owner.88 The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months from its approval within which to "wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area." The directive to "wind up business operations" amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless the owner converts his

establishment to accommodate an "allowed" business, the structure which housed the previous business will be left empty and gathering dust. Suppose he transfers it to another area, he will likewise leave the entire establishment idle. Consideration must be given to the substantial amount of money invested to build the edifices which the owner reasonably expects to be returned within a period of time. It is apparent that the Ordinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. are confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in Section 4 of the to transfer to any place outside of the Ermita-Malate area or to convert into allowed businessesThe second and third options Ordinance is also equivalent to a "taking" of private property. The second option instructs the owners to abandon their property and build another one outside the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an additional burden imposed on the owner to build another establishment solely from his coffers. The proffered solution does not put an end to the "problem," it merely relocates it. Not only is this impractical, it is unreasonable, onerous and oppressive. The conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private property without due process of law, nay, even without compensation. The penalty of closure likewise constitutes unlawful taking that should be compensated by the government. The burden on the owner to convert or transfer his business, otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole. Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid exercise of police power, which limits a "wholesome" property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation. Private property which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed without compensation. Such principle finds no support in the principles of justice as we know them. The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking. Distinction should be made between destruction from necessity and eminent domain. It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore "wholesome."89 If it be of public benefit that a "wholesome" property remain unused or relegated to a particular purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private property for public use.90 Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no way controls or guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments. Ordinances such as this, which make possible abuses in its execution, depending upon no conditions or qualifications whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are unreasonable

and invalid. The Ordinance should have established a rule by which its impartial enforcement could be secured.91 Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions.92 Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme Court struck down an ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by." The ordinance was nullified as it imposed no standard at all "because one may never know in advance what 'annoys some people but does not annoy others.' " Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to disturb the community," "annoy the inhabitants," and "adversely affect the social and moral welfare of the community." The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers in carrying out its provisions. Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty and property. Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from the ill-considered Ordinance enacted by the City Council. In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance regulating "sexually oriented businesses," which are defined to include adult arcades, bookstores, video stores, cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual encounter centers. Among other things, the ordinance required that such businesses be licensed. A group of motel owners were among the three groups of businesses that filed separate suits challenging the ordinance. The motel owners asserted that the city violated the due process clause by failing to produce adequate support for its supposition that renting room for fewer than ten (10) hours resulted in increased crime and other secondary effects. They likewise argued than the ten (10)hour limitation on the rental of motel rooms placed an unconstitutional burden on the right to freedom of association. Anent the first contention, the U.S. Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered, was adequate to support the city's determination that motels permitting room rentals for fewer than ten (10 ) hours should be included within the licensing scheme. As regards the second point, the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs. The ordinance challenged in the above-cited case merely regulated the targeted businesses. It imposed reasonable restrictions; hence, its validity was upheld.

The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,96 it needs pointing out, is also different from this case in that what was involved therein was a measure which regulated the mode in which motels may conduct business in order to put an end to practices which could encourage vice and immorality. Necessarily, there was no valid objection on due process or equal protection grounds as the ordinance did not prohibit motels. The Ordinance in this case however is not a regulatory measure but is an exercise of an assumed power to prohibit.97 The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise of exercising police power, be upheld as valid. B. The Ordinance violates Equal Protection Clause Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.98 The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances.99 The "equal protection of the laws is a pledge of the protection of equal laws."100 It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned.101 The Court has explained the scope of the equal protection clause in this wise: What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: "The ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the idea of law." There is recognition, however, in the opinion that what in fact exists "cannot approximate the ideal. Nor is the law susceptible to the reproach that it does not take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact exist. To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason." Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest.102

Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause.103 The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements: 1) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions only. 4) It must apply equally to all members of the class.104 In the Court's view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance. The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area. one of the hinted ills theThe standard "where women are used as tools for entertainment" is also discriminatory as prostitution Ordinance is not a profession exclusive to women. Both men and women have an equal propensity to engage in prostitution. It is not any less grave a sin when men engage in it. And why would taims to banishhe assumption that there is an ongoing immoral activity apply only when women are employed and be inapposite when men are in harness? This discrimination based on gender violates equal protection as it is not substantially related to important government objectives.105 Thus, the discrimination is invalid. Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with prevailing laws. C. The Ordinance is repugnant to general laws; it is ultra vires The Ordinance is in contravention of the Code as the latter merely empowers local government units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof. The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv), which provides that: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section

16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: . . . (iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports . . . . While its power to regulate the establishment, operation and maintenance of any entertainment or amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as follows: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: . . . (vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, the only power of the City Council to legislate relative thereto is to regulate them to promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation and maintenance of such establishments. It is well to recall the rulings of the Court inKwong Sing v. City of Manila106 that: The word "regulate," as used in subsection (l), section 2444 of the Administrative Code, means and includes the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with "suppress" or "prohibit." Consequently, under the

power to regulate laundries, the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised.107 And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is empowered only to regulate the same and not prohibit. The Court therein declared that: (A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.109 These doctrines still hold contrary to petitioners' assertion110 that they were modified by the Code vesting upon City Councils prohibitory powers. Similarly, the City Council exercises regulatory powers over public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend "such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants" and to "prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community" are stated in the second and third clauses, respectively of the same Section. The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph.111 These powers, therefore, should not be confused, commingled or consolidated as to create a conglomerated and unified power of regulation, suppression and prohibition.112 The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among "other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the City Council may suspend, suppress or prohibit. The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council.113 Moreover, it is a general rule in statutory construction that the express mention of one person, thing, or consequence is tantamount to an express exclusion of all others. Expressio unius est exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human mind. It is particularly applicable in the construction of such statutes as create new rights or remedies, impose penalties or punishments, or otherwise come under the rule of strict construction.114

The argument that the City Council is empowered to enact the Ordinance by virtue of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the first point, the ruling of the Court in People v. Esguerra,115 is instructive. It held that: The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it can not be applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing thereof is granted specifically by section 2242 (g) to municipal councils. To hold that, under the general power granted by section 2238, a municipal council may enact the ordinance in question, notwithstanding the provision of section 2242 (g), would be to make the latter superfluous and nugatory, because the power to prohibit, includes the power to regulate, the selling, giving away and dispensing of intoxicating liquors. On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will.116 If there is an inconsistency or repugnance between two statutes, both relating to the same subject matter, which cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of the legislative will which must prevail and override the earlier.117 Implied repeals are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes: those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two can remain in force and those which occur when an act covers the whole subject of an earlier act and is intended to be a substitute therefor. The validity of such a repeal is sustained on the ground that the latest expression of the legislative will should prevail.118 In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating such must be considered repealed by the Code as it is at variance with the latter's provisions granting the City Council mere regulatory powers. It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It can not be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial intervention.119

Notably, the City Council was conferred powers to prevent and prohibit certain activities and establishments in another section of the Code which is reproduced as follows: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: . . . (v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city; . . . If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and expand the City Council's powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these establishments may only be regulated in their establishment, operation and maintenance. It is important to distinguish the punishable activities from the establishments themselves. That these establishments are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in paragraph (h) thereof. The same Section also defined "amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation, avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and other places of amusement where one seeks admission to entertain oneself by seeing or viewing the show or performances." Thus, it can be inferred that the Code considers these establishments as legitimate enterprises and activities. It is well to recall the maxim reddendo singula singulis which means that words in different parts of a statute must be referred to their appropriate connection, giving to each in its place, its proper force and effect, and, if possible, rendering none of them useless or superfluous, even if strict grammatical construction demands otherwise. Likewise, where words under consideration appear in different sections or are widely dispersed throughout an act the same principle applies.120

Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the powers of the council to enact but the same must not be in conflict with or repugnant to the general law.121 As succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:122 The requirement that the enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). They are mere agents vested with what is called the power of subordinate legislation. As delegates of the Congress, the local government units cannot contravene but must obey at all times the will of their principal. In the case before us, the enactment in question, which are merely local in origin cannot prevail against the decree, which has the force and effect of a statute.123 Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule, it has already been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is established by proper evidence. The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right.124 Conclusion All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void. Concededly, the challenged Ordinance we reiterate our support for it. But inspite of its virtuous aims, the enactment of thewas enacted with the best of motives and shares the concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such character deserves the full endorsement of the judiciary Ordinance not even under the guise of police power.has no statutory or constitutional authority to stand on. Local legislative bodies, in this case, the City Council, cannot prohibit the operation of the enumerated establishments under Section 1 thereof or order their transfer or conversion without infringing the constitutional guarantees of due process and equal protection of laws WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring the Ordinancevoid is AFFIRMED. Costs against petitioners. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 192935 December 7, 2010

LOUIS "BAROK" C. BIRAOGO, Petitioner, vs. THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 193036 REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents. DECISION MENDOZA, J.: When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. --- Justice Jose P. Laurel1 The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of government are established, limited and defined, and by which these powers are distributed among the several departments.2 The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer.3 Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of government and the people who run it.4

For consideration before the Court are two consolidated cases5 both of which essentially assail the validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth Commission of 2010." The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the Constitution6 as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor.7 The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives. The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and of his ability to carry out this noble objective, catapulted the good senator to the presidency. To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate reported cases of graft and corruption allegedly committed during the previous administration. Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said executive order read: EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010 WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a public office is a public trust and mandates that public officers and employees, who are servants of the people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives; WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of this mandate; WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and underprivileged sector of society; WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the peoples trust and confidence in the Government and its institutions; WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the

appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and confidence in the Government and in their public servants; WHEREAS, the Presidents battlecry during his campaign for the Presidency in the last elections "kung walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and the evil it breeds; WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all; WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of the President. NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order: SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial body. SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their coprincipals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman. In particular, it shall: a) Identify and determine the reported cases of such graft and corruption which it will investigate; b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to investigate, and to this end require any agency, official or employee of the Executive Branch, including government-owned or controlled corporations, to produce documents, books, records and other papers;

c) Upon proper request or representation, obtain information and documents from the Senate and the House of Representatives records of investigations conducted by committees thereof relating to matters or subjects being investigated by the Commission; d) Upon proper request and representation, obtain information from the courts, including the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption cases filed with the Sandiganbayan or the regular courts, as the case may be; e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or affirmations as the case may be; f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules of Court of the Philippines be admitted for that purpose; g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by means of a special or interim report and recommendation, all evidence on corruption of public officers and employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and corruption under pertinent applicable laws; h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation as it may require in the discharge of its functions and duties; i) Engage or contract the services of resource persons, professionals and other personnel determined by it as necessary to carry out its mandate; j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its investigations, proceedings and hearings, including the presentation of evidence; k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives and purposes of this Order. SECTION 3. Staffing Requirements. x x x. SECTION 4. Detail of Employees. x x x. SECTION 5. Engagement of Experts. x x x SECTION 6. Conduct of Proceedings. x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x. SECTION 8. Protection of Witnesses/Resource Persons. x x x. SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for inspection, when required, shall be subject to administrative disciplinary action. Any private person who does the same may be dealt with in accordance with law. SECTION 10. Duty to Extend Assistance to the Commission. x x x. SECTION 11. Budget for the Commission. The Office of the President shall provide the necessary funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible. SECTION 12. Office. x x x. SECTION 13. Furniture/Equipment. x x x. SECTION 14. Term of the Commission. The Commission shall accomplish its mission on or before December 31, 2012. SECTION 15. Publication of Final Report. x x x. SECTION 16. Transfer of Records and Facilities of the Commission. x x x. SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order. SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall not affect the validity and effectivity of the other provisions hereof. SECTION 19. Effectivity. This Executive Order shall take effect immediately. DONE in the City of Manila, Philippines, this 30th day of July 2010. (SGD.) BENIGNO S. AQUINO III By the President: (SGD.) PAQUITO N. OCHOA, JR. Executive Secretary Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc body formed under the Office of the President with the primary task to investigate reports of graft and corruption committed by third-level public officers and employees, their coprincipals, accomplices and accessories during the previous administration, and thereafter to submit its finding and recommendations to the President, Congress and the Ombudsman. Though it has been described as an "independent collegial body," it is essentially an entity within the Office of the President Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one.8 To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It may have subpoena powers but it has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions. The PTC is different from the truth commissions in other countries which have been created as official, transitory and non-judicial fact-finding bodies "to establish the facts and context of serious violations of human rights or of international humanitarian law in a countrys past."9 They are usually established by states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice. Truth commissions have been described as bodies that share the following characteristics: (1) they examine only past events; (2) they investigate patterns of abuse committed over a period of time, as opposed to a particular event; (3) they are temporary bodies that finish their work with the submission of a report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or empowered by the State.10"Commissions members are usually empowered to conduct research, support victims, and propose policy recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional reforms."11 Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa, the principal function of which was to heal the wounds of past violence and to prevent future conflict by providing a cathartic experience for victims. The PTC is a far cry from South Africas model. The latter placed more emphasis on reconciliation than on judicial retribution, while the marching order of the PTC is the identification and punishment of perpetrators. As one writer12 puts it: The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural speech: "To those who talk about reconciliation, if they mean that they would like us to simply forget about the wrongs that they have committed in the past, we have this to say: There can be no reconciliation without justice. When we allow crimes to go unpunished, we give consent to their occurring over and over again."

The Thrusts of the Petitions Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the petitioners in both cases shows that they are essentially the same. The petitioners-legislators summarized them in the following manner: (a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a public office and appropriate funds for its operation. (b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of the President to achieve economy, simplicity and efficiency does not include the power to create an entirely new public office which was hitherto inexistent like the "Truth Commission." (c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth Commission" with quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987 Constitution and the Department of Justice created under the Administrative Code of 1987. (d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials and personnel of the previous administration as if corruption is their peculiar species even as it excludes those of the other administrations, past and present, who may be indictable. (e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general international practice of four decades wherein States constitute truth commissions to exclusively investigate human rights violations, which customary practice forms part of the generally accepted principles of international law which the Philippines is mandated to adhere to pursuant to the Declaration of Principles enshrined in the Constitution. (f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan hostility, a launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the people that widespread poverty will altogether vanish if corruption is eliminated without even addressing the other major causes of poverty. (g) The mere fact that previous commissions were not constitutionally challenged is of no moment because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of an executive issuance or even a statute."13 In their Consolidated Comment,14 the respondents, through the Office of the Solicitor General (OSG), essentially questioned the legal standing of petitioners and defended the assailed executive order with the following arguments: 1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the Presidents executive power and power of control necessarily include the inherent power to conduct investigations to ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative Code of 1987 (E.O. No. 292), 15 Presidential Decree

(P.D.) No. 141616 (as amended by P.D. No. 1772), R.A. No. 9970,17 and settled jurisprudence that authorize the President to create or form such bodies. 2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no appropriation but a mere allocation of funds already appropriated by Congress. 3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasi-judicial body and its functions do not duplicate, supplant or erode the latters jurisdiction. 4] The Truth Commission does not violate the equal protection clause because it was validly created for laudable purposes. The OSG then points to the continued existence and validity of other executive orders and presidential issuances creating similar bodies to justify the creation of the PTC such as Presidential Complaint and Action Commission(PCAC) by President Ramon B. Magsaysay, Presidential Committee on Administrative Performance Efficiency(PCAPE) by President Carlos P. Garcia and Presidential Agency on Reform and Government Operations(PARGO) by President Ferdinand E. Marcos.18 From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be resolved: 1. Whether or not the petitioners have the legal standing to file their respective petitions and question Executive Order No. 1; 2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the powers of Congress to create and to appropriate funds for public offices, agencies and commissions; 3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ; 4. Whether or not Executive Order No. 1 violates the equal protection clause; and 5. Whether or not petitioners are entitled to injunctive relief. Essential requisites for judicial review Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to ascertain whether the requisites for a valid exercise of its power of judicial review are present. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the

question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.19 Among all these limitations, only the legal standing of the petitioners has been put at issue. Legal Standing of the Petitioners The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not shown that they have sustained or are in danger of sustaining any personal injury attributable to the creation of the PTC. Not claiming to be the subject of the commissions investigations, petitioners will not sustain injury in its creation or as a result of its proceedings.20 The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress as a body to which they belong as members. This certainly justifies their resolve to take the cudgels for Congress as an institution and present the complaints on the usurpation of their power and rights as members of the legislature before the Court. As held in Philippine Constitution Association v. Enriquez,21 To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts. Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official action which, to their mind, infringes on their prerogatives as legislators.22 With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation of the PTC and the budget for its operations.23 It emphasizes that the funds to be used for the creation and operation of the commission are to be taken from those funds already appropriated by Congress. Thus, the allocation and disbursement of funds for the commission will not entail congressional action but will simply be an exercise of the Presidents power over contingent funds. As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of sustaining, any personal and direct injury attributable to the implementation of Executive Order No. 1. Nowhere in his petition is an assertion of a clear right that may justify his clamor for the Court to exercise judicial power and to wield the axe over presidential issuances in defense of the Constitution. The case of David v. Arroyo24 explained the deep-seated rules on locus standi. Thus: Locus standi is defined as "a right of appearance in a court of justice on a given question." In private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled to

the avails of the suit." Succinctly put, the plaintiffs standing is based on his own right to the relief sought. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer. Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayers suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied." However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed inTileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations omitted] Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of paramount public interest."25 Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held that in cases of paramount importance where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial review. In the first Emergency Powers Cases,27 ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders although they had only an indirect and general interest shared in common with the public.

The OSG claims that the determinants of transcendental importance28 laid down in CREBA v. ERC and Meralco29are non-existent in this case. The Court, however, finds reason in Biraogos assertion that the petition covers matters of transcendental importance to justify the exercise of jurisdiction by the Court. There are constitutional issues in the petition which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Where the issues are of transcendental and paramount importance not only to the public but also to the Bench and the Bar, they should be resolved for the guidance of all.30 Undoubtedly, the Filipino people are more than interested to know the status of the Presidents first effort to bring about a promised change to the country. The Court takes cognizance of the petition not due to overwhelming political undertones that clothe the issue in the eyes of the public, but because the Court stands firm in its oath to perform its constitutional duty to settle legal controversies with overreaching significance to society. Power of the President to Create the Truth Commission In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and not merely an adjunct body of the Office of the President.31 Thus, in order that the President may create a public office he must be empowered by the Constitution, a statute or an authorization vested in him by law. According to petitioner, such power cannot be presumed32 since there is no provision in the Constitution or any specific law that authorizes the President to create a truth commission.33 He adds that Section 31 of the Administrative Code of 1987, granting the President the continuing authority to reorganize his office, cannot serve as basis for the creation of a truth commission considering the aforesaid provision merely uses verbs such as "reorganize," "transfer," "consolidate," "merge," and "abolish."34 Insofar as it vests in the President the plenary power to reorganize the Office of the President to the extent of creating a public office, Section 31 is inconsistent with the principle of separation of powers enshrined in the Constitution and must be deemed repealed upon the effectivity thereof.35 Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within the province of Congress and not with the executive branch of government. They maintain that the delegated authority of the President to reorganize under Section 31 of the Revised Administrative Code: 1) does not permit the President to create a public office, much less a truth commission; 2) is limited to the reorganization of the administrative structure of the Office of the President; 3) is limited to the restructuring of the internal organs of the Office of the President Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity, economy and efficiency.36 Such continuing authority of the President to reorganize his office is limited, and by issuing Executive Order No. 1, the President overstepped the limits of this delegated authority. The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it argues that the authority of the President to create public offices within the Office of the President Proper has long been recognized.37 According to the OSG, the Executive, just like the other two branches of government, possesses the inherent authority to create fact-finding committees to assist it in the performance of its constitutionally mandated functions and in the exercise of its administrative functions.38 This power, as the OSG explains it, is but an adjunct of the plenary powers wielded by the President under Section 1 and his power of control under Section 17, both of Article VII of the Constitution.39

It contends that the President is necessarily vested with the power to conduct fact-finding investigations, pursuant to his duty to ensure that all laws are enforced by public officials and employees of his department and in the exercise of his authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of his officials.40 The power of the President to investigate is not limited to the exercise of his power of control over his subordinates in the executive branch, but extends further in the exercise of his other powers, such as his power to discipline subordinates,41 his power for rule making, adjudication and licensing purposes42 and in order to be informed on matters which he is entitled to know.43 The OSG also cites the recent case of Banda v. Ermita,44 where it was held that the President has the power to reorganize the offices and agencies in the executive department in line with his constitutionally granted power of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under existing statutes. Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For the OSG, the President may create the PTC in order to, among others, put a closure to the reported large scale graft and corruption in the government.45 The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates "reorganization" as limited by the following functional and structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body or an office is already existent but a modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in the negative. To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced supposition, even in the plainest meaning attributable to the term "restructure" an "alteration of an existing structure." Evidently, the PTC was not part of the structure of the Office of the President prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,46 But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very source of the power that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. The EIIB is a bureau attached to the

Department of Finance. It falls under the Office of the President. Hence, it is subject to the Presidents continuing authority to reorganize. [Emphasis Supplied] In the same vein, the creation of the PTC is not justified by the Presidents power of control. Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter.47 Clearly, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws. The question is this, is there a valid delegation of power from Congress, empowering the President to create a public office? According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772.48 The said law granted the President the continuing authority to reorganize the national government, including the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities, transfer appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive Secretary.49 The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the administrative structure of the national government including the power to create offices and transfer appropriations pursuant to one of the purposes of the decree, embodied in its last "Whereas" clause: WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the organization of the national government. Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General agrees with this view. Thus: ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says "it was enacted to prepare the transition from presidential to parliamentary. Now, in a parliamentary form of government, the legislative and executive powers are fused, correct? SOLICITOR GENERAL CADIZ: Yes, Your Honor. ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that P.D. 1416 should not be considered effective anymore upon the promulgation, adoption, ratification of the 1987 Constitution. SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor. ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.50 While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads: Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied). As correctly pointed out by the respondents, the allocation of power in the three principal branches of government is a grant of all powers inherent in them. The Presidents power to conduct investigations to aid him in ensuring the faithful execution of laws in this case, fundamental laws on public accountability and transparency is inherent in the Presidents powers as the Chief Executive. That the authority of the President to conduct investigations and to create bodies to execute this power is not explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such authority.51 As explained in the landmark case of Marcos v. Manglapus:52 x x x. The 1987 Constitution, however, brought back the presidential system of government and restored the separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of government with provision for checks and balances. It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations. On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise ofspecific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive. x x x. Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution.53 One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. Thus, in Department of Health v. Camposano,54 the authority of the President to issue Administrative Order No. 298, creating an investigative committee to look into the administrative charges filed against the employees of the Department of Health for the anomalous purchase of medicines was upheld. In said case, it was ruled:

The Chief Executives power to create the Ad hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had the same composition, or that the former used the offices and facilities of the latter in conducting the inquiry. [Emphasis supplied] It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the laws of the land. And if history is to be revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no changes in the government structure, the Court is not inclined to declare such executive power as non-existent just because the direction of the political winds have changed. On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount to be earmarked for the operation of the commission because, in the words of the Solicitor General, "whatever funds the Congress has provided for the Office of the President will be the very source of the funds for the commission."55 Moreover, since the amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding. Power of the Truth Commission to Investigate The Presidents power to conduct investigations to ensure that laws are faithfully executed is well recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof.56 As the Chief Executive, the president represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has the authority to directly assume the functions of the executive department.57 Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers have been vested in the said body as it cannot adjudicate rights of persons who come before it. It has been said that "Quasi-judicial powers involve the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by law itself in enforcing and administering the same law."58 In simpler terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and must be clearly authorized by the legislature in the case of administrative agencies. The distinction between the power to investigate and the power to adjudicate was delineated by the Court in Cario v. Commission on Human Rights.59 Thus:

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to search or inquire into: x x to subject to an official probe x x: to conduct an official inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry. The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." "Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or grant judicially in a case of controversy x x." In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a judgment." [Italics included. Citations Omitted] Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as such, the act of receiving evidence and arriving at factual conclusions in a controversy must be accompanied by the authority of applying the law to the factual conclusions to the end that the controversy may be decided or resolved authoritatively, finally and definitively, subject to appeals or modes of review as may be provided by law.60 Even respondents themselves admit that the commission is bereft of any quasi-judicial power.61 Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the overall task of the commission to conduct a fact-finding investigation."62 The actual prosecution of suspected offenders, much less adjudication on the merits of the charges against them,63 is certainly not a function given to the commission. The phrase, "when in the course of its investigation," under Section 2(g), highlights this fact and gives credence to a contrary interpretation from that of the petitioners. The function of determining probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman.64

At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not exclusive but is shared with other similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,65 it was written: This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to investigate complaints against local elective officials. [Emphasis supplied]. Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No. 6770, which states: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such cases. [Emphases supplied] The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary investigation or the determination of the existence of probable cause. This is categorically out of the PTCs sphere of functions. Its power to investigate is limited to obtaining facts so that it can advise and guide the President in the performance of his duties relative to the execution and enforcement of the laws of the land. In this regard, the PTC commits no act of usurpation of the Ombudsmans primordial duties. The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by no means exclusive and, thus, can be shared with a body likewise tasked to investigate the commission of crimes. Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to reject the recommendation. These offices, therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC for possible indictments for violations of graft laws. Violation of the Equal Protection Clause Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads: Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply equally to all members of the same class such that the intent of singling out the "previous administration" as its sole object makes the PTC an "adventure in partisan hostility."66 Thus, in order to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all administrations previous to that of former President Arroyo.67 The petitioners argue that the search for truth behind the reported cases of graft and corruption must encompass acts committed not only during the administration of former President Arroyo but also during prior administrations where the "same magnitude of controversies and anomalies"68 were reported to have been committed against the Filipino people. They assail the classification formulated by the respondents as it does not fall under the recognized exceptions because first, "there is no substantial distinction between the group of officials targeted for investigation by Executive Order No. 1 and other groups or persons who abused their public office for personal gain; and second, the selective classification is not germane to the purpose of Executive Order No. 1 to end corruption."69 In order to attain constitutional permission, the petitioners advocate that the commission should deal with "graft and grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal force."70 Position of respondents According to respondents, while Executive Order No. 1 identifies the "previous administration" as the initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of large scale graft and corruption solely during the said administration.71 Assuming arguendo that the commission would confine its proceedings to officials of the previous administration, the petitioners argue that no offense is committed against the equal protection clause for "the segregation of the transactions of public officers during the previous administration as possible subjects of investigation is a valid classification based on substantial distinctions and is germane to the evils which the Executive Order seeks to correct."72 To distinguish the Arroyo administration from past administrations, it recited the following: First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous administration which have eroded public confidence in public institutions. There is, therefore, an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and confidence in the Government and in their public servants. Second. The segregation of the preceding administration as the object of fact-finding is warranted by the reality that unlike with administrations long gone, the current administration will most likely bear the immediate consequence of the policies of the previous administration. Third. The classification of the previous administration as a separate class for investigation lies in the reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more easily established in the regime that immediately precede the current administration.

Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure to issues that are pivotal to national life or even as a routine measure of due diligence and good housekeeping by a nascent administration like the Presidential Commission on Good Government (PCGG), created by the late President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her predecessor former President Ferdinand Marcos and his cronies, and the Saguisag Commission created by former President Joseph Estrada under Administrative Order No, 53, to form an ad-hoc and independent citizens committee to investigate all the facts and circumstances surrounding "Philippine Centennial projects" of his predecessor, former President Fidel V. Ramos.73 [Emphases supplied] Concept of the Equal Protection Clause One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.74 "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."75 It "requires public bodies and institutions to treat similarly situated individuals in a similar manner."76 "The purpose of the equal protection clause is to secure every person within a states jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the states duly constituted authorities."77 "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."78 The equal protection clause is aimed at all official state actions, not just those of the legislature.79 Its inhibitions cover all the departments of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken. 80 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 ofreasonableness. 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.81 "Superficial differences do not make for a valid classification."82 For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class.83 "The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed.

It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is substantially distinguishable from all others, does not justify the nonapplication of the law to him."84 The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union85 and reiterated in a long line of cases,86 The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted] Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth "concerning the reported cases of graft and corruption during the previous administration"87 only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three portions of the questioned executive order. Specifically, these are: WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all; SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and

magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their coprincipals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied] In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution. Though the OSG enumerates several differences between the Arroyo administration and other past administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the "previous administration" only. The reports of widespread corruption in the Arroyo administration cannot be taken as basis for distinguishing said administration from earlier administrations which were also blemished by similar widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it, "Superficial differences do not make for a valid classification."88 The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended investigation to the previous administration only. The OSG ventures to opine that "to include other past administrations, at this point, may unnecessarily overburden the commission and lead it to lose its effectiveness."89 The reason given is specious. It is without doubt irrelevant to the legitimate and noble objective of the PTC to stamp out or "end corruption and the evil it breeds."90 The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents and cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations of previous administrations, given the bodys limited time and resources. "The law does not require the impossible" (Lex non cogit ad impossibilia).91 Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of investigating almost a centurys worth of graft cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not exclude the other past administrations. The PTC must, at least, have the authority to investigate all past administrations. Whilereasonable prioritization is permitted, it should not be arbitrary lest it be struck down for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins,92

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. [Emphasis supplied] It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is of the considered view that although its focus is restricted, the constitutional guarantee of equal protection under the laws should not in any way be circumvented. The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights determined and all public authority administered.93 Laws that do not conform to the Constitution should be stricken down for being unconstitutional.94 While the thrust of the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to survive, must be read together with the provisions of the Constitution. To exclude the earlier administrations in the guise of "substantial distinctions" would only confirm the petitioners lament that the subject executive order is only an "adventure in partisan hostility." In the case of US v. Cyprian,95 it was written: "A rather limited number of such classifications have routinely been held or assumed to be arbitrary; those include: race, national origin, gender, political activity or membership in a political party, union activity or membership in a labor union, or more generally the exercise of first amendment rights." To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class.96 "Such a classification must not be based on existing circumstances only, or so constituted as to preclude additions to the number included within a class, but must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and which are indistinguishable from those of the members of the class must be brought under the influence of the law and treated by it in the same way as are the members of the class."97 The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal protection clause."98 "Legislation is not unconstitutional merely because it is not allembracing and does not include all the evils within its reach."99 It has been written that a regulation challenged under the equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete.100 In several instances, the underinclusiveness was not considered a valid reason to strike down a law or regulation where the purpose can be attained in future legislations or regulations. These cases refer to the "step by step" process.101 "With regard to equal protection claims, a legislature does not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked."102 In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in the assailed executive order. It must be noted that Executive Order No. 1 does not even mention any particular act, event or report to be focused on unlike the investigative commissions created in the past. "The equal protection clause is violated by purposeful and intentional discrimination."103

To disprove petitioners contention that there is deliberate discrimination, the OSG clarifies that the commission does not only confine itself to cases of large scale graft and corruption committed during the previous administration.104 The OSG points to Section 17 of Executive Order No. 1, which provides: SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order. The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of investigations of the PTC so as to include the acts of graft and corruption committed in other past administrations, it does not guarantee that they would be covered in the future. Such expanded mandate of the commission will still depend on the whim and caprice of the President. If he would decide not to include them, the section would then be meaningless. This will only fortify the fears of the petitioners that the Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials and personalities of the Arroyo administration."105 The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause." The decision, however, was devoid of any discussion on how such conclusory statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action. A final word The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of the legislature and the executive department, is exercising undue interference. Is the Highest Tribunal, which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of powers? Time and again, this issue has been addressed by the Court, but it seems that the present political situation calls for it to once again explain the legal basis of its action lest it continually be accused of being a hindrance to the nations thrust to progress. The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with Judicial Power that "includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave of abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to declare a treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on the constitutionality of the application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations. These provisions, however, have been fertile grounds of conflict between the Supreme Court, on one hand, and the two co-equal bodies of government, on the other. Many times the Court has been accused of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: "And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them."107 Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a coequal body but rather simply making sure that any act of government is done in consonance with the authorities and rights allocated to it by the Constitution. And, if after said review, the Court finds no constitutional violations of any sort, then, it has no more authority of proscribing the actions under review. Otherwise, the Court will not be deterred to pronounce said act as void and unconstitutional. It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment of the nation and its people. But then again, it is important to remember this ethical principle: "The end does not justify the means." No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed.108 The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined principles. "The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude."109 Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution. Of all the branches of the government, it is the judiciary which is the most interested in knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the truth must be within constitutional bounds for "ours is still a government of laws and not of men."110 WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution. As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of Executive Order No. 1. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. 168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner, vs. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents. SEPARATE CONCURRING OPINION CARPIO, J.: The Case This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National Telecommunications Commission (NTC), particularly an NTC "press release" dated 11 June 2005, warning radio and television stations against airing taped conversations allegedly between President Gloria Macapagal-Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio Garcillano (Garcillano)1 under pain of suspension or revocation of their airwave licenses. The Facts On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the 2004 presidential elections.2 President Arroyo received a total of 12,905,808 votes, 1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed "rigging" the results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press conference in Malacaang Palace, where he played before the presidential press corps two compact disc recordings of conversations between a woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the contents of the second compact disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano. However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not President Arroyos after all.3 Meanwhile, other individuals went public, claiming possession of the genuine copy of the Garci Tapes.4 Respondent Gonzalez ordered the National Bureau of Investigation to investigate media organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the Anti-Wiretapping Law. On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to them.5 On 14 June 2005, NTC officers met with officers of the broadcasters group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing commitment to press freedom.6 On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the "acts, issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the

following grounds: (1) respondents conduct violated freedom of expression and the right of the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci Tapes. In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no standing to litigate and (2) the petition fails to meet the case or controversy requirement in constitutional adjudication. On the merits, respondents claim that (1) the NTC's press release of 11 June 2005 is a mere "fair warning," not censorship, cautioning radio and television networks on the lack of authentication of the Garci Tapes and of the consequences of airing false or fraudulent material, and (2) the NTC did not act ultra vires in issuing the warning to radio and television stations. In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his status as a citizen asserting the enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner also contests respondents' claim that the NTC press release of 11 June 2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the Anti-Wiretapping Law, making it a "cleverly disguised x x x gag order." ISSUE The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005 constitutes an impermissible prior restraint on freedom of expression. I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same. 1. Standing to File Petition Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case, any citizen has the right to bring suit to question the constitutionality of a government action in violation of freedom of expression, whether or not the government action is directed at such citizen. The government action may chill into silence those to whom the action is directed. Any citizen must be allowed to take up the cudgels for those who have been cowed into inaction because freedom of expression is a vital public right that must be defended by everyone and anyone. Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is oftranscendental importance that must be defended by every patriotic citizen at the earliest opportunity. We have held that any concerned citizen has standing to raise an issue of transcendental importance to the nation,7 and petitioner in this present petition raises such issue. 2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition8 to the exercise of almost all other civil and political rights. No society can remain free, open and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even contentious discussion of all social, economic and

political issues. To survive, a free and democratic society must zealously safeguard freedom of expression. Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed choices of candidates for public office. Freedom of expression crystallizes important public policy issues, and allows citizens to participate in the discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of claims and counterclaims, from which the truth will likely emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from marginalized groups who otherwise would not be heard by government. Freedom of expression provides a civilized way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he might use his fist instead. Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of others to express to one and all what they favor or disfavor. It is the free expression for the ideas we love, as well as the free expression for the ideas we hate.9 Indeed, the function of freedom of expression is to stir disputes: [I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.10 Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression: No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity. The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography,11 false or misleading advertisement,12 advocacy of imminent lawless action,13 and danger to national security.14 All other expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal Communication Commission, "[T]he First Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals."15 Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected expression is unconstitutional without exception. A protected expression means what it says it is absolutely protected from censorship. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution.

Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression. Courts will subject to strict scrutiny content-based restraint. If the content-based prior restraint is directed at protected expression, courts will strike down the restraint as unconstitutional because there can be no content-based prior restraint on protected expression. The analysis thus turns on whether the prior restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the recognized categories of unprotected expression. If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places16 without any restraint on the content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny.17 An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts.18Courts will uphold time, place or manner restraints if they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression.19 In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the expression itself. Thus, submission of movies or pre-taped television programs to a government review board is constitutional only if the review is for classification and not for censoring any part of the content of the submitted materials.20 However, failure to submit such materials to the review board may be penalized without regard to the content of the materials.21 The review board has no power to reject the airing of the submitted materials. The review boards power is only to classify the materials, whether for general patronage, for adults only, or for some other classification. The power to classify expressions applies only to movies and pre-taped television programs22but not to live television programs. Any classification of live television programs necessarily entails prior restraint on expression. Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based23 since the restraint is imposed because of the content itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to prior restraint. This Court recognized false or misleading advertisement as unprotected expression only in October 2007.24 Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional.Second, the government bears a heavy burden of proving the constitutionality of the prior restraint.25 Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression.26The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest.

Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment,27 either civilly or criminally. Thus, the publication of election surveys cannot be subject to prior restraint,28 but an aggrieved person can sue for redress of injury if the survey turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows which offend any race or religion" cannot be used to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the perpetrator of such offensive shows.29 Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or "hate speech" against a religious minority is not subject to subsequent punishment in this jurisdiction,30 such expression cannot be subject to prior restraint. If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The legislature must punish the unprotected expression because it creates a substantive evil that the State must prevent. Otherwise, there will be no legal basis for imposing a prior restraint on such expression. The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of unprotected expression pornography,31 advocacy of imminent lawless action, and danger to national security - is the clear and present danger test.32 The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent.33 Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits.34 The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies. 3. Government Action in the Present Case The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci Tapes by radio and television stations is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to radio and television stations. The NTC warning, embodied in a press release, relies on two grounds. First, the airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations." Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain false information or willful misrepresentation.

Specifically, the NTC press release contains the following categorical warning: Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television networks owners/operators that the conditions of the authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use its stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the Commission that certain personalities are in possession of alleged taped conversation which they claim, (sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their supposed violation of election laws. These personalities have admitted that the taped conversations are product of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. If it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. (Boldfacing and underscoring supplied) The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and imminent character, that the State has a right and duty to prevent. The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC press release, and even up to now, the parties to the conversations in the Garci Tapes have not complained that the wire-tapping was without their consent, an essential element for violation of the Anti-Wiretapping Law.35 It was even the Office of the President, through the Press Secretary, that played and released to media the Garci Tapes containing the alleged "spliced" conversation between President Arroyo and Commissioner Garcillano. There is also the issue of whether a wireless cellular phone conversation is covered by the Anti-Wiretapping Law. Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the NTC. The NTC did not observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations.36 The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may constitute "false information and/or willful misrepresentation." However, the NTC does not claim that such possible false information or willful misrepresentation constitutes misleading commercial

advertisement. In the United States, false or deceptive commercial speech is categorized as unprotected expression that may be subject to prior restraint. Recently, this Court upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims to the public.37 There is, however, no claim here by respondents that the Garci Tapes constitute false or misleading commercial advertisement. The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only "after a prosecution or appropriate investigation" can it be established that the Garci Tapes constitute "false information and/or willful misrepresentation." Clearly, the NTC admits that it does not even know if the Garci Tapes contain false information or willful misrepresentation. 4. Nature of Prior Restraint in the Present Case The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes. The NTCs claim that the Garci Tapes might contain "false information and/or willful misrepresentation," and thus should not be publicly aired, is an admission that the restraint is content-based. 5. Nature of Expression in the Present Case The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections. Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. Public discussion on the credibility of the electoral process is one of the highest political expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank,38 and among different kinds of political expression, the subject of fair and honest elections would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust and wide open. The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the courts determine that the subject matter of a wiretapping, illegal or not, endangers the security of the State, the public airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there is no claim here by respondents that the subject matter of the Garci Tapes involves national security and publicly airing the tapes would endanger the security of the State.39 The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of expression.40 The only exceptions to this rule are the four recognized categories of unprotected

expression. However, the content of the Garci Tapes does not fall under any of these categories of unprotected expression. The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the peoples right to information on matters of public concern.41 The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment,absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law. The present case involves a prior restraint on protected expression. Prior restraint on protected expression differs significantly from subsequent punishment of protected expression. While there can be no prior restraint on protected expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the Anti-Wiretapping Law. 6. Only the Courts May Impose Content-Based Prior Restraint The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest NTC with any content-based censorship power over radio and television stations. In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes constitutes unprotected expression, only the courts have the power to adjudicate on the factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint. Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception. As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position, transmitter wattage, and location of radio and television stations, but not the content of the broadcasts. Such content-neutral prior restraint may make operating radio and television stations more costly. However, such content-neutral restraint does not restrict the content of the broadcast. 7. Government Failed to Overcome Presumption of Invalidity Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing prior restraint on the airing is presumed unconstitutional. The Government bears a heavy burden to prove that the NTC action is constitutional. The Government has failed to meet this burden. In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the public airing of the Garci Tapes. The respondents claim that they merely "fairly

warned" radio and television stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards. Respondents have not explained how and why the observance by radio and television stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci Tapes. Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal prosecution after the violation is committed. Respondents have not explained why there is a need in the present case to impose prior restraint just to prevent a possible future violation of the Anti-Wiretapping Law. Respondents have not explained how the violation of the Anti-Wiretapping Law, or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State. To allow such restraint is to allow prior restraint on all future broadcasts that may possibly violate any of the existing criminal statutes. That would be the dawn of sweeping and endless censorship on broadcast media. 8. The NTC Warning is a Classic Form of Prior Restraint The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television stations that have invested substantial sums in capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC threat is thus real and potent. In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a general warrant "is in the nature of a previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law." The NTC warning to radio and television stations not to air the Garci Tapes or else their permits will be suspended or cancelled has the same effect a prior restraint on constitutionally protected expression. In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government threats to close down mass media establishments that refused to comply with government prescribed "standards" on news reporting following the declaration of a State of National Emergency by President Arroyo on 24 February 2006. The Court described these threats in this manner: Thereafter, a wave of warning[s] came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong presence,' to tell media outlets not to connive or do anything that would help the rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the standards and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened.44 (Emphasis supplied)

The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression. The Court ruled that "the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL."45 The history of press freedom has been a constant struggle against the censor whose weapon is the suspension or cancellation of licenses to publish or broadcast. The NTC warning resurrects the weapon of the censor. The NTC warning is a classic form of prior restraint on protected expression, which in the words of Near v. Minnesota is "the essence of censorship."46 Long before the American Declaration of Independence in 1776, William Blackstone had already written in his Commentaries on the Law of England, "The liberty of the press x x x consists in laying no previous restraints upon publication x x x."47 Although couched in a press release and not in an administrative regulation, the NTC threat to suspend or cancel permits remains real and effective, for without airwaves or frequencies, radio and television stations will fall silent and die. The NTC press release does not seek to advance a legitimate regulatory objective, but to suppress through coercion information on a matter of vital public concern. 9. Conclusion In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be no content-based prior restraint on protected expression. This rule has no exception. I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same. ANTONIO T. CARPIO Associate Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 181881 October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner, vs. CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN

BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION, Respondents. DECISION VILLARAMA, JR., J.: This case involves a search of office computer assigned to a government employee who was charged administratively and eventually dismissed from the service. The employees personal files stored in the computer were used by the government employer as evidence of misconduct. Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal. The factual antecedents: Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the CSC. On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents marked "Confidential" are left unopened and instead sent to the addressee, the aforesaid letter was given directly to Chairperson David. The letter-complaint reads: The Chairwoman Civil Service Commission Batasan Hills, Quezon City Dear Madam Chairwoman, Belated Merry Christmas and Advance Happy New Year! As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of your agency to be a lawyer of an accused govt employee having a pending case in the csc. I honestly think this is a violation of law and unfair to others and your office. I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The justice in our govt system will not be served if this will continue.

Please investigate this anomaly because our perception of your clean and good office is being tainted. Concerned Govt employee3 Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."4After some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSCROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson Davids directive. The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by petitioner read: "Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If you can make it here now it would be better." "All PCs Of PALD and LSD are being backed up per memo of the chair." "CO IT people arrived just now for this purpose. We were not also informed about this. "We cant do anything about it its a directive from chair." "Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"5 Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned over to Chairperson David. The contents of the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters7 in connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the ShowCause Order8 dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice. Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.9 Petitioner filed his Comment, denying that he is the person referred to in the anonymous lettercomplaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree."10 On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007. Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and alleged that those files found in his computer were prepared not by him but by certain persons whom he permitted, at one time or

another, to make use of his computer out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas client who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioners answer. On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment against Director Buensalida.14 On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the formal investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his counsels non-appearance.17 This prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.18 On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioners motion to set aside the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch. In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to have waived his right to the formal investigation which then proceeded ex parte. On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads: WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.21

On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible misconduct committed by said employee and without the latters consent or participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the leading case of OConnor v. Ortega22 as authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace without meeting the "probable cause" or warrant requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons23 which declared that the federal agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondents legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the employees office was upheld as valid because a government employer is entitled to conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and scope. With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view that the search of petitioners computer successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified petitioners dismissal from the service with all its accessory penalties. In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his motion for reconsideration. By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC after a factfinding investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioners computer and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSCs act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA. His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that

I THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521; II THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION; III THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION; IV THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26 Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,27 which provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable" searches and seizures.28 But to fully understand this concept and application for the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared in People v. Marti29 : Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Sec. 1[3], Article III) was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.30 In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as reasonable (objective).32 In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus "recognized that employees may have a reasonable expectation of privacy against intrusions by police." That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of OConnor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program, sexual harassment of female

hospital employees and other irregularities involving his private patients under the state medical aid program, searched his office and seized personal items from his desk and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer."35 A plurality of four Justices concurred that the correct analysis has two steps: first, because "some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable", a court must consider "[t]he operational realities of the workplace" in order to determine whether an employees Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an employers intrusion on that expectation "for noninvestigatory, workrelated purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances."36 On the matter of government employees reasonable expectations of privacy in their workplace, OConnor teaches: x x x Public employees expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. x x x The employees expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others such as fellow employees, supervisors, consensual visitors, and the general public may have frequent access to an individuals office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer," x x x but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted; emphasis supplied.) On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an expectation of privacy that society is prepared to consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and other private items in his own office while those work-related files (on physicians in residency training) were stored outside his office, and there being no evidence that the hospital had established any reasonable regulation or policy discouraging employees from storing personal papers and effects in their desks or file cabinets (although the absence of such a policy does not create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.38 Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the OConnor plurality decision discussed the following principles: Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the "searchwas not a reasonable search under

the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a public employer, we must balance the invasion of the employees legitimate expectations of privacy against the governments need for supervision, control, and the efficient operation of the workplace. xxxx In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employees office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." x x x xxxx The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employees desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons. We come to a similar conclusion for searches conducted pursuant to an investigation of workrelated employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from "the normal need for law enforcement." x x x Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the

employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agencys work, and ultimately to the public interest. x x x xxxx In sum, we conclude that the "special needs, beyond the normal need for law enforcement make theprobable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct,should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable: "Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether theaction was justified at its inception, x x x ; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place," x x x Ordinarily, a search of an employees office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope when "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.) Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the search and neither was there any finding made as to the scope of the search that was undertaken, the case was remanded to said court for the determination of the justification for the search and seizure, and evaluation of the reasonableness of both the inception of the search and its scope. In OConnor the Court recognized that "special needs" authorize warrantless searches involving public employees for work-related reasons. The Court thus laid down a balancing test under which government interests are weighed against the employees reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant requirement, which are related to law enforcement.40 OConnor was applied in subsequent cases raising issues on employees privacy rights in the workplace. One of these cases involved a government employers search of an office computer, United States v. Mark L. Simons41where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing child pornography. Simons was provided with an office which he did not share with anyone, and a computer with Internet access. The agency had instituted a policy on computer use stating that

employees were to use the Internet for official government business only and that accessing unlawful material was specifically prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the users Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the agencys computer network, upon initial discovery of prohibited internet activity originating from Simons computer, to conduct a remote monitoring and examination of Simons computer. After confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of Simons computer were copied from a remote work station. Days later, the contractors representative finally entered Simons office, removed the original hard drive on Simons computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency secured warrants and searched Simons office in the evening when Simons was not around. The search team copied the contents of Simons computer; computer diskettes found in Simons desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty as charged. Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under the OConnor exception to the warrant requirement because evidence of the crime was discovered in the course of an otherwise proper administrative inspection. Simons violation of the agencys Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The warrantless entry into Simons office was reasonable under the Fourth Amendment standard announced in OConnor because at the inception of the search, the employer had "reasonable grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer. x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x xxxx x x x We conclude that the remote searches of Simons computer did not violate his Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that Simons Fourth Amendment rights were not violated by FBIS retrieval of Simons hard drive from his office. Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or monitor" employees use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on notice that they could not reasonably expect that their Internet activity would be

private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS actions in remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment. xxxx The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office. xxxx In the final analysis, this case involves an employees supervisor entering the employees government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy equipment that the employer knew contained evidence of crimes committed by the employee in the employees office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employers policy and the conduct that violated the criminal law. We consider that FBIS intrusion into Simons office to retrieve the hard drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis supplied.) This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutors office with certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is to a large extent circumscribed by the companys work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.) Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employees relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item." These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.44 Thus, where the employee used a password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment.45 We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial request. He described his office as "full of people, his friends, unknown people" and that in the past 22 years he had been discharging his functions at the PALD, he is "personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would recognize as reasonable. Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the presence of policy regulating the use of office computers, as in Simons. Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides: POLICY 1. The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes. 2. Users shall be permitted access to Computer Resources to assist them in the performance of their respective jobs. 3. Use of the Computer Resources is a privilege that may be revoked at any given time. xxxx No Expectation of Privacy 4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential examination data and processes. 5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network. Users understand that theCSC may use human or automated means to monitor the use of its Computer Resources. 6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance. xxxx Passwords 12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another Users password or account. 13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular Users password. Only members of the Commission shall authorize the application of the said global passwords. x x x x47 (Emphasis supplied.) The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means. This implies that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes. One of the factors stated in OConnor which are relevant in determining whether an employees expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his computer files where the universitys computer policy, the computer user is informed not to expect privacy if the university has a legitimate reason to conduct a search. The user is specifically told that computer files, including e-mail, can be searched when the university is responding to a discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we answer in the affirmative. The search of petitioners computer files was conducted in connection with investigation of workrelated misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit: 8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties with pending cases, all done during office hours and involved the use of government properties; 9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an investigation; 10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the alleged irregularities happening in CSCRO IV; 11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division; x x x x50 A search by a government employer of an employees office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of workrelated misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agencys computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that case, the defendant employees computer hard drive was first remotely examined by a computer information technician after his supervisor received complaints that he was inaccessible and had copied and distributed non-work-related email messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants were secured by the police department. The initial remote search of the hard drive of petitioners computer, as well as the subsequent warrantless searches was held as valid under the OConnor ruling that a public employer can investigate work-related misconduct so long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the first place.52 Under the facts obtaining, the search conducted on petitioners computer was justified at its inception and scope. We quote with approval the CSCs discussion on the reasonableness of its actions, consistent as it were with the guidelines established by OConnor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollos computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of "lawyering" for parties with pending cases before the Commission would be a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it. Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation. Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer. All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible.53 Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit in his contention that OConnor and Simons are not relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the search of petitioners computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the

investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches defined in OConnor. The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales personal computer and print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every court employee, the Court cannot use the evidence obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of evidence. The above case is to be distinguished from the case at bar because, unlike the former which involved a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer assigned to him. Having determined that the personal files copied from the office computer of petitioner are admissible in the administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of the charges and dismissing him from the service. Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.55 The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents stored in his office computer, as well as the sworn affidavits and

testimonies of the witnesses it presented during the formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-wise with those on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold that the CSCs factual finding regarding the authorship of the subject pleadings and misuse of the office computer is wellsupported by the evidence on record, thus: It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply doing the same for the money a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak. Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he was the author thereof. This is because he had a control of the said computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer. To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo submitted. At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He was, in effect, acting as a principal by indispensable cooperationOr at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed. Why would such a statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?56 Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint: Rule II Disciplinary Cases SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complaint need not be under oath. No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment. xxxx We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining authoritys own fact-finding investigation and informationgathering -- found a prima facie case against the petitioner who was then directed to file his comment. As this Court held in Civil Service Commission v. Court of Appeals57 -Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.) As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner Buenaflors previous memo expressing his dissent to the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been to issue a memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations. WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED. With costs against the petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 180452 January 10, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NG YIK BUN, KWOK WAI CHENG, CHANG CHAUN SHI, CHUA SHILOU HWAN, KAN SHUN MIN, AND RAYMOND S. TAN, Accused-Appellants. DECISION VELASCO, JR., J.: The Case This is an appeal from the January 16, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00485 entitled People of the Philippines v. Ng Yik Bun, Kwok Wai Cheng, Chang Chaun Shi, Chua Shilou Hwan, Kan Shun Min and Raymond S. Tan, which affirmed the April 1, 2004 Decision in Criminal Case No. Q-01-99437 of the Regional Trial Court (RTC), Branch 103 in Quezon City. The RTC found accused-appellants guilty beyond reasonable doubt of violating Section 16, Article III of Republic Act No. (RA) 6425 or the Dangerous Drugs Act of 1972. The Facts An Information indicted accused-appellants of the following: That on or about the 24th day of August 2000, at Barangay Bignay II, Municipality of Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together and mutually helping one another, did then and there knowingly, willfully, unlawfully and feloniously transport, deliver and distribute, without authority of law, on board an L-300 Mitsubishi van, bearing Plate No. UBU 827, and have in their

possession, custody, and control, without the corresponding license or prescription, twenty-five (25) heat-sealed transparent plastic bags containing Methamphetamine Hydrochloride (shabu), a regulated drug, each containing: 2.954 grams, 2.901 grams, 2.926 grams, 2.820 grams, 2.977 grams, 2.568 grams, 2.870 grams, 2.941 grams, 2.903 grams, 2.991 grams, 2.924 grams, 2.872 grams, 2.958 grams, 2.972 grams, 2.837 grams, 2.908 grams, 2.929 grams, 2.932 grams, 2.899 grams, 2.933 grams, 2.938 grams, 2.943 grams, 2.955 grams, 2.938 grams and 2.918 grams, respectively, with a total weight of 72.707 kilos, and one hundred forty seven (147) self-sealing transparent plastic bags likewise containing Methamphetamine Hydrochloride (shabu), also a regulated drug, with a total weight of 291.350 kilos, or with a grand total weight of 364.057 kilos. That the above acts were committed by a syndicate with the use of two (2) motor vehicles, namely: L-300 Mitsubishi Van bearing Plate No. UBU 827 and a Nissan Sentra Exalta car without Plate Number. Contrary to law.1 As summarized in the appealed CA decision, the facts are as follows: On August 24, 2000, at around 9:00 p.m., Capt. Danilo Ibon of Task Force Aduana received information from an operative that there was an ongoing shipment of contraband in Barangay Bignay II, Sariaya, Quezon Province. Upon instructions from his superior, Major Carlo Magno Tabo, Capt. Ibon formed a team in coordination with a Philippine National Police detachment, and, along with the operative, the team then proceeded to Villa Vicenta Resort in Barangay Bignay II, Sariaya. The members of the team were able to observe the goings-on at the resort from a distance of around 50 meters. They spotted six Chinese-looking men loading bags containing a white substance into a white van. Having been noticed, Capt. Ibon identified his team and asked accused-appellant Chua Shilou Hwan (Hwan) what they were loading on the van. Hwan replied that it was shabu and pointed, when probed further, to accused-appellant Raymond Tan as the leader. A total of 172 bags of suspected shabu were then confiscated. Bundles of noodles (bihon) were also found on the premises. A laboratory report prepared later by Police Inspector Mary Jean Geronimo on samples of the 172 confiscated bags showed the white substance to be shabu. On January 10, 2001, an Amended Information for violation of Sec. 16, Article III of RA 6425 was filed against accused-appellants, who entered a plea of not guilty upon re-arraignment. Accused-appellants all maintained their innocence and presented the following defenses: (1) Accused-appellant Hwan testified that he was planning to buy cheap goods at Villa Vicenta Resort on August 24, 2000, when he saw a van full of bihon at the resort and inquired if it was for sale. He went to relieve himself 15 meters away from the van. A group of police officers arrested him upon his return. (2) Accused-appellant Tan testified that he was a businessman collecting a debt in Lucena City on August 24, 2000. He was at a restaurant with his driver when three persons identified themselves as police officers and forcibly brought him inside a car. He was handcuffed, blindfolded, and badly beaten. He was later brought to a beach and was ordered

to hold some bags while being photographed with five Chinese-looking men he saw for the first time. A tricycle driver, Ricky Pineda, corroborated his story by testifying that he saw Tan being forced into a white Nissan car on August 24, 2000. (3) Accused-appellant Ng Yik Bun (Bun) testified that he arrived in the Philippines as a tourist on August 22, 2000. On August 24, 2000, he was at a beach with some companions when four armed men arrested them. He was made to pose next to some plastic bags along with other accused-appellants, whom he did not personally know. He was then charged with illegal possession of drugs at the police station. A friend of his, accused-appellant Kwok Wai Cheng (Cheng), corroborated his story. (4) Accused-appellant Kan Shun Min (Min) testified that he arrived in the Philippines on July 1, 2000 for business and pleasure. On August 24, 2000, he checked into a beach resort. While walking there, he was suddenly accosted by four or five men who poked guns at him. He was brought to a cottage where he saw some unfamiliar Chinese-looking individuals. He likewise testified that he was made to take out white packages from a van while being photographed. His friend, accused-appellant Chang Chaun Shi (Shi), corroborated his story. The RTC convicted accused-appellants of the crime charged. The dispositive portion of the RTC Decision reads: ACCORDINGLY, the Court hereby renders judgment finding the six (6) accused namely Ng Yik Bun, Kwok Wai Cheng, Chang Chaun Shi, Chua Shilou Hwan, Kan Shun Min and Raymond S. Tan (some also known by other names), GUILTY beyond reasonable doubt of violating Section 16 of RA 6425, as amended and each is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to pay a fine of Five Million Pesos (P5,000,000.00) each. The shabu involved in this case and their accompanying paraphernalia are ordered disposed of in accordance with law, now RA 9165. The two (2) vehicles are forfeited in favor of the government. SO ORDERED.2 In questioning the RTC Decision before the CA, accused-appellants Bun, Cheng, Shi, Min, and Tan raised the lone issue of: whether the trial court erred in ruling that there was a valid search and arrest despite the absence of a warrant. On the other hand, accused-appellant Hwan sought an acquittal on the basis of the following submissions: I The trial court erred when it held as valid the warrantless search, seizure and subsequent arrest of the accused-appellants despite the non-concurrence of the requisite circumstances that justify a warrantless arrest as held in the case of People vs. [Cuizon]. II The trial court violated Article III, Section 14 of the 1987 Constitution as well as Rule 115 of the Revised Rules on Criminal Procedure when it heard the case at bench on June 26, 2001 at the

chemistry division of the PNP Crime Laboratory in Camp Crame, Quezon City without the presence of both the herein accused-appellant and his counsel de parte. III The trial court erred when it issued and dictated in open hearing a verbal order denying accuseds formal "Motion to Suppress Illegally Procured Evidence" upon a [ratiocination] that is manifestly contrary to law [and] jurisprudence set in the Cuizon case, supra. IV The trial court erred when with lack of the desired circumspection, it sweepingly ruled the admission in evidence the 731 exhibits listed in the prosecutions 43-page formal offer of evidence over the itemized written objections of the defense in a terse verbal order (bereft of reason for the denial of the raised objections) dictated in open hearing which reads: "All the exhibits of the prosecution are hereby admitted. The court believes that as far as the evidence submitted goes, these exhibits of the prosecution consisting of several plastic bags of shabu were not yet shown to be the fruit of a poisonous plant." x x x V The trial court also erred in admitting the prosecutions photographs (Exhibit "K" and "M," inclusive of their sub-markings), the photographer who took the shots not having taken the witness stand to declare, as required by the rules, the circumstances under which the photographs were taken. VI The trial court erred when it tried and applied the provisions of R.A. 9165, the Dangerous Drugs Act of 2002, in the instant case even though [the] crime charged took place on 24 August 2000. VII The trial court erred in finding conspiracy among the accused.3 The appellate court found accused-appellants contentions unmeritorious as it consequently affirmed in toto the RTC Decision. The CA ruled that, contrary to accused-appellants assertion, they were first arrested before the seizure of the contraband was made. The CA held that accused-appellants were caught in flagrante delicto loading transparent plastic bags containing white crystalline substance into an L-300 van which, thus, justified their arrests and the seizure of the contraband. The CA agreed with the prosecution that the urgency of the situation meant that the buy-bust team had no time to secure a search warrant. Moreover, the CA also found that the warrantless seizure of the transparent plastic bags can likewise be sustained under the plain view doctrine. The CA debunked accused-appellant Hwans arguments in seriatim. First, the CA ruled that People v. Cuizon4 was not applicable to the instant case, as, unlike in Cuizon, the apprehending officers immediately acted on the information they had received about an ongoing shipment of drugs.

Second, the CA also noted that accused-appellant Hwan effectively waived his right to be present during the inspection of exhibits and hearing, for the manifestation made by the prosecution that accused-appellant Hwan waived his right to be present was never raised in issue before the trial court. And third, the CA found accused-appellant Hwans other arguments untenable. It held that the trial court correctly admitted Exhibits "K" and "M" even if the photographer was not presented as a witness. The CA based its ruling on Sison v. People,5 which held that photographs can be identified either by the photographer or by any other competent witness who can testify to its exactness and accuracy. It agreed with the Solicitor General that accused-appellants were correctly tried and convicted by the trial court under RA 6425 and not RA 9165, as can be gleaned from the fallo of the RTC Decision. The CA likewise dismissed the argument that conspiracy was not proved by the prosecution, noting that the evidence presented established that accused-appellants were performing "their respective task[s] with the objective of loading the plastic bags of shabu into an L-300 van."6 The CA disposed of the appeal as follows: WHEREFORE, the Decision dated April 1, 2004 of the Regional Trial Court of Quezon City, Branch 103, in Criminal Case No. Q-01-99437, is hereby AFFIRMED in toto. SO ORDERED.7 On February 18, 2008, the Court, acting on the appeal of accused-appellants, required the parties to submit supplemental briefs if they so desired. On March 27, 2008, accused-appellants Bun, Cheng, Shi, Min, and Tan filed their Supplemental Brief on the sole issue that: THERE WAS NO VALID SEARCH AND ARREST DUE TO ABSENCE OF A WARRANT On June 4, 2008, accused-appellant Hwan filed his Supplemental Brief, raising the following errors, allegedly committed by the trial court: I THE TRIAL COURT VIOLATED ARTICLE III, SECTION 14 OF THE 1987 CONSTITUTION AS WELL AS RULE 115 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHEN IT CONDUCTED A HEARING ON JUNE 26, 2001 AT THE CHEMISTRY DIVISION OF THE PNP CRIME LABORATORY IN CAMP CRAME, QUEZON CITY WITHOUT THE PRESENCE OF BOTH THE HEREIN ACCUSED-APPELLANT AND HIS COUNSEL IN SUCH VITAL [PROCEEDINGS]. II THE TRIAL COURT ERRED WHEN IT HELD AS VALID THE WARRANTLESS SEARCH, SEIZURE AND SUBSEQUENT ARREST OF THE HEREIN APPELLANT DESPITE THE NON-CONCURRENCE OF THE REQUISITE CIRCUMSTANCES THAT JUSTIFY A WARRANTLESS ARREST.

Essentially, accused-appellants claim that no valid in flagrante delicto arrest was made prior to the seizure and that the police officers placed accused-appellants under arrest even when there was no evidence that an offense was being committed. Since there was no warrant of arrest, they argue that the search sans a search warrant subsequently made on them was illegal. They contend that a seizure of any evidence as a result of an illegal search is inadmissible in any proceeding for any purpose. Accused-appellant Hwan additionally claims that he was deliberately excluded when the trial court conducted a hearing on June 26, 2001 to identify 172 bags of shabu for trial purposes. He asserts that no formal notice of the hearing was sent to him or his counsel, to his prejudice. The Courts Ruling On the issue of warrantless arrest, it is apropos to mention what the Bill of Rights under the present Constitution provides in part: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. A settled exception to the right guaranteed in the aforequoted provision is that of an arrest made during the commission of a crime, which does not require a warrant. Such warrantless arrest is considered reasonable and valid under Rule 113, Sec. 5(a) of the Revised Rules on Criminal Procedure, which states: 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; (Emphasis supplied.) The foregoing proviso refers to arrest in flagrante delicto.8 In the instant case, contrary to accusedappellants contention, there was indeed a valid warrantless arrest in flagrante delicto. Consider the circumstances immediately prior to and surrounding the arrest of accused-appellants: (1) the police officers received information from an operative about an ongoing shipment of contraband; (2) the police officers, with the operative, proceeded to Villa Vicenta Resort in Barangay Bignay II, Sariaya, Quezon; (3) they observed the goings-on at the resort from a distance of around 50 meters; and (4) they spotted the six accused-appellants loading transparent bags containing a white substance into a white L-300 van. The following exchange between Capt. Ibon and the prosecutor sheds light on the participation of all six accused-appellants: Q: Upon arriving at Villa Vicenta Resort in Brgy. Bignay II, [in] what specific area [did] you position yourselves? A: Initially we [were] about three hundred meters away from Villa Vicenta Resort, then we walked [stealthily] so as not to [be] [spotted] until we were about fifty meters sir.

Q: So you [positioned] yourself about fifty meters away from the point of Villa Vicenta Resort? A: From the actual location we saw about six personnel walking together loading contraband. Q: You said you [were] about fifty meters away from these six persons who were loading contraband, is that what you mean? A: Yes sir. Q: In that place where you [positioned] yourself, could you tell us, what was the lighting condition in the place where you positioned yourselves? A: It was totally dark in our place sir. Q: How about the position of the six persons who were loading contraband? A: They were well-lighted sir. Q: Why do you say that they are well-lighted? A: There were several [fluorescent] lamps sir. Q: Where? A: One search light placed near where they were loading the shipment sir. Q: How about the other? A: About two fluorescent lamps at the house near the six persons your honor. COURT: Are these portable lamps: A: Fixed lamps your honor. Q: Where else? A: Another at the right corner[.] There was also somewhat a multi-purpose house and it [was] well-lighted your honor. Q: This is a resort and that multi-purpose house that you are referring to are the cottages of the resort? A: Yes your honor. FISCAL: You said you saw six persons who were loading goods[.] In what vehicle [were they] transferring those things?

A: Into [an] L-300 van sir. Q: What is the color of the van? A: White sir. Q: What did you see that these six persons [were] loading? A: We saw [them] holding white plastic with white substance your honor. Q: What container [were they] loading? A: Actually there were several checkered bags and other plastic [bags] sir. Q: How [were] they loading these bags? A: [Manually] your honor. Q: Will you please describe how they [were] loading it, Mr. Witness? A: Actually the plastic bags [some were] repacked [into] checkered [bags] while others [were] loading inside the checkered bag sir. Q: Did they put that on their shoulder or what? A: Holding and holding [sic] sir. Q: Nobody carrying [it] on their back? A: Nobody sir. xxxx Q: You said you saw these six persons, will you please look around this courtroom and tell us if these six persons that you are referring to are present? COURT: Considering that there are many persons inside this courtroom, will you please stand up and please [tap] the shoulder of these six persons? xxxx INTERPRETER: Witness tapped the [shoulders] of six male persons inside the courtroom. xxxx FISCAL: May we manifest your honor that when these six persons stood up when their names [were] called on the basis [of] what [was] written [on] the information [were] once tapped on their shoulder by this witness.

The last question I have [is] how long you stayed in this position watching these six persons loading those [products] in the L-300 van? A: Ten to fifteen minutes sir. Q: Within that period could you tell us what transpired? A: I called Major Tabo to inform [him of] what I saw, I called Major Tabo through the handheld radio sir. Q: What was the reply of major Tabo with respect to your information? A: He directed me to get closer to these six persons and find out if really the contraband is shabu that was first reported sir. Q: So did you in fact go closer? A: Yes sir. Q: How [close] were you [to] the six persons at the time? A: When we were closing [in] somebody noticed us and they were surprised, I immediately shouted "Freeze, dont move, we are Filipino soldiers," we further identified [ourselves] sir. Q: What was the reaction of the six persons when you shouted those words? A: They [froze] sir. xxxx Q: When you went closer and they [froze], what happened? A: I asked them who among them are English-speaking? Q: What was the reply given to you? A: Somebody replied "tagalog lang." Q: Who was that person who replied "tagalog lang?" A: Chua Shilou Hwan sir. Q: Will you please [identify] for us who answered that in [T]agalog? COURT: Please [tap] his shoulder. A: This man sir.

COURT: Witness tapped the shoulder of a man who identified himself as Chua Shilou Hwan. CHUA SHILOU HWAN: Opo. FISCAL: After answering you [with] "tagalog lang," what happened? A: I further asked them "Ano ang dala ninyo?" Q: What was the reply? A: Chua Shilou Hwan said shabu. Q: So [what] did you do next? A: I asked them who is their leader, sir. Q: What was the reply? A: He told me it was Raymond Tan, sir. Q: Is he inside this courtroom now? A: Yes sir. COURT: Please tap [his] shoulder. WITNESS: This man sir. COURT: Ikaw ba Raymond Tan? INTERPRETER: A man stood and [nodded] his head. xxxx FISCAL: Now after they [froze], what did you do? A: I inspected the contraband and I found these bags and I immediately called Major Tabo and informed [him of] the matter sir. Q: How many bags were you able to confiscate in the scene? A: All in all 172 your honor. Q: That 172, one of them is the bag in front of you [which] you identified earlier? A: Yes sir.

Q: When you saw that bag could you tell us what particular [contents] attracted you upon seeing these bags? A: It was marked by the members (interrupted). Q: No what attracted you? A: Something crystalline white sir. Q: Are you referring to all the bags? A: All the bags sir.9 x x x Evidently, the arresting police officers had probable cause to suspect that accusedappellants were loading and transporting contraband, more so when Hwan, upon being accosted, readily mentioned that they were loading shabu and pointed to Tan as their leader. Thus, the arrest of accused-appellantswho were caught in flagrante delicto of possessing, and in the act of loading into a white L-300 van, shabu, a prohibited drug under RA 6425, as amendedis valid. In People v. Alunday, we held that when a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds at once to the scene, he may effect an arrest without a warrant on the basis of Sec. 5(a), Rule 113 of the Rules of Court, as the offense is deemed committed in his presence or within his view.10 In the instant case, it can plausibly be argued that accused-appellants were committing the offense of possessing shabu and were in the act of loading them in a white van when the police officers arrested them. As aptly noted by the appellate court, the crime was committed in the presence of the police officers with the contraband, inside transparent plastic containers, in plain view and duly observed by the arresting officers. And to write finis to the issue of any irregularity in their warrantless arrest, the Court notes, as it has consistently held, that accused-appellants are deemed to have waived their objections to their arrest for not raising the issue before entering their plea.11 Moreover, present in the instant case are all the elements of illegal possession of drugs: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possesses the said drug.12 Accused-appellants were positively identified in court as the individuals caught loading and possessing illegal drugs. They were found to be in possession of prohibited drugs without proof that they were duly authorized by law to possess them. Having been caught in flagrante delicto, there is, therefore, a prima facie evidence of animus possidendi on the part of accused-appellants.13 There is, thus, no merit to the argument of the defense that a warrant was needed to arrest accused-appellants. Accused-appellants were not able to show that there was any truth to their allegation of a frame-up in rebutting the testimonies of the prosecution witnesses. They relied on mere denials, in contrast with the testimony of Capt. Ibon, who testified that he and his team saw accused-appellants loading plastic bags with a white crystalline substance into an L-300 van at the Villa Vicenta Resort. Accused-appellants, except for Tan, claimed that they were ordered by the police officers to act like they were loading bags onto the van. Accused-

appellant Tan told a different tale and claims he was arrested inside a restaurant. But as the trial court found, the persons who could have corroborated their version of events were not presented in court. The only witness presented by Tan, a tricycle driver whose testimony corroborated Tans alone, was not found by the trial court to be credible. As no ill motive can be imputed to the prosecutions witnesses, we uphold the presumption of regularity in the performance of official duties and affirm the trial courts finding that the police officers testimonies are deserving of full faith and credit. Appellate courts generally will not disturb the trial courts assessment of a witness credibility unless certain material facts and circumstances have been overlooked or arbitrarily disregarded.14 We find no reason to deviate from this rule in the instant case. On the alleged lack of notice of hearing, it is now too late for accused-appellant Hwan to claim a violation of his right to examine the witnesses against him. The records show the following exchange on June 26, 2001: FISCAL LUGTO: I would like to manifes[t] that Atty. Agoot, counsel of accused Chua Shilou Hwan, waived his right to be present for todays trial for purposes of identification of the alleged shabu. ATTY SAVELLANO: [Are] we made to understand that this hearing is for identification of shabu only? FISCAL LUGTO: Yes despite the testimony of the Forensic Chemist, this is for continuation with the direct testimony for purposes of identification which was confiscated or seized by the joint operation of the Military and the PNP at Sariaya, Quezon. For the record, this [is] for the continuation of the direct testimony of Forensic Chemist Mary Jean Geronimo.15 As the records confirm, accused-appellant Hwan and his counsel were not present when the forensic chemist testified. The prosecution made a manifestation to the effect that accusedappellant Hwan waived his right to be present at that hearing. Yet Hwan did not question this before the trial court. No evidence of deliberate exclusion was shown. If no notice of hearing were made upon him and his counsel, they should have brought this in issue at the trial, not at the late stage on appeal.1avvphi1 All told, we hold that the findings of both the RTC and the CA must be affirmed. The trial courts determination as to the credibility of witnesses and its findings of fact should be accorded great weight and respect more so when affirmed by the appellate court. To reiterate, a look at the records shows no facts of substance and value that have been overlooked, which, if considered, might affect the outcome of the instant appeal. Deference to the trial courts findings must be made as it was in the position to easily detect whether a witness is telling the truth or not.16 Penalty Imposed

Accused-appellants were each sentenced by the lower court to reclusion perpetua and to pay a fine of PhP 5,000,000. This is within the range provided by RA 6425, as amended.17 We, therefore, affirm the penalty imposed on accused-appellants. WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 00485, finding accused-appellants Ng Yik Bun, Kwok Wai Cheng, Chang Chaun Shi, Chua Shilou Hwan, Kan Shun Min, and Raymond S. Tan guilty beyond reasonable doubt of violating Sec. 16, Art. III of RA 6425, as amended, is AFFIRMED IN TOTO. SO ORDERED.

Republic of the Philippines Supreme Court Manila SECOND DIVISION RODEL LUZ y ONG, Petitioner, G. R. No. 197788 Present: CARPIO, J., Chairperson, BRION, PEREZ, SERENO, and REYES, JJ. Promulgated: February 29, 2012

- versus -

PEOPLE OF THE PHILIPPINES,[1] Respondent.

x--------------------------------------------------x

DECISION SERENO, J.:

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February 2011[2] and Resolution dated 8 July 2011.

Statement of the Facts and of the Case The facts, as found by the Regional Trial Court (RTC), which sustained the version of the prosecution, are as follows: PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City Police Station as a traffic enforcer, substantially testified that on March 10, 2003 at around 3:00 oclock in the morning, he saw the accused, who was coming from the direction of Panganiban Drive and going to Diversion Road, Naga City, driving a motorcycle without a helmet; that this prompted him to flag down the accused for violating a municipal ordinance which requires all motorcycle drivers to wear helmet (sic) while driving said motor vehicle; that he invited the accused to come inside their sub-station since the place where he flagged down the accused is almost in front of the said sub-station; that while he and SPO1 Rayford Brillante were issuing a citation ticket for violation of municipal ordinance, he noticed that the accused was uneasy and kept on getting something from his jacket; that he was alerted and so, he told the accused to take out the contents of the pocket of his jacket as the latter may have a weapon inside it; that the accused obliged and slowly put out the contents of the pocket of his jacket which was a nickel-like tin or metal container about two (2) to three (3) inches in size, including two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife; that upon seeing the said container, he asked the accused to open it; that after the accused opened the container, he noticed a cartoon cover and something beneath it; and that upon his instruction, the accused spilled out the contents of the container on the table which turned out to be four (4) plastic sachets, the two (2) of which were empty while the other two (2) contained suspected shabu.[3]

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of Not guilty to the charge of illegal possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after which, trial ensued. During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the prosecution. On the other hand, petitioner testified for himself and raised the defense of planting of evidence and extortion.

In its 19 February 2009 Decision,[4] the RTC convicted petitioner of illegal possession of dangerous drugs[5] committed on 10 March 2003. It found the prosecution evidence sufficient to show that he had been lawfully arrested for a traffic violation and then subjected to a valid search, which led to the discovery on his person of two plastic sachets later found to contain shabu. The RTC also found his defense of frame-up and extortion to be weak, self-serving and unsubstantiated. The dispositive portion of its Decision held: WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG GUILTY beyond reasonable doubt for the crime of violation of Section 11, Article II of Republic Act No. 9165 and sentencing him to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years and (1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred Thousand Pesos (300,000.00). The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement Agency for its proper disposition and destruction in accordance with law. SO ORDERED.[6]

Upon review, the CA affirmed the RTCs Decision. On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari dated 1 September 2011. In a Resolution dated 12 October 2011, this Court required respondent to file a comment on the Petition. On 4 January 2012, the latter filed its Comment dated 3 January 2012. Petitioner raised the following grounds in support of his Petition: (i) (ii) (iii) (iv) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS INVALID. THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF THE POLICE OFFICER CANNOT BE RELIED UPON IN THIS CASE. THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT SPECIMEN HAS BEEN COMPROMISED. THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE REASONABLE DOUBT (sic).[7]

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He claims that the finding that there was a lawful arrest was erroneous, since he was not even issued a citation ticket or charged with violation of the city ordinance. Even assuming there was a valid arrest, he claims that he had never consented to the search conducted upon him. On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus: It is beyond dispute that the accused was flagged down and apprehended in this case by Police Officers Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring the use of crash helmet by motorcycle drivers and riders thereon in the City of Naga and prescribing penalties for violation thereof. The accused himself admitted that he was not wearing a helmet at the time when he was flagged down by the said police officers, albeit he had a helmet in his possession. Obviously, there is legal basis on the part of the apprehending officers to flag down and arrest the accused because the latter was actually committing a crime in their presence, that is, a violation of City Ordinance No. 98-012. In other words, the accused, being caught in flagrante delicto violating the said Ordinance, he could therefore be lawfully stopped or arrested by the apprehending officers. x x x. [8]

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal cases, an appeal throws the entire case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the trial courts decision based on grounds other than those that the parties raised as errors.[9] First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic violation, he was not, ipso facto and solely for this reason, arrested. Arrest is the taking of a person into custody in order that he or she may be bound to answer for the commission of an offense.[10] It is effected by an actual restraint of the person to be arrested or by that persons voluntary submission to the custody of the one making the arrest. Neither the application of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is required. It is enough that there be an intention on the part of one of the parties to arrest the other, and that there be an intent on the part of the other to submit, under the belief and impression that submission is necessary.[11]

Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a traffic violation is not the arrest of the offender, but the confiscation of the drivers license of the latter: SECTION 29. Confiscation of Driver's License. Law enforcement and peace officers of other agencies duly deputized by the Director shall, in apprehending a driver for any violation of this Act or any regulations issued pursuant thereto, or of local traffic rules and regulations not contrary to any provisions of this Act, confiscate the license of the driver concerned and issue a receipt prescribed and issued by the Bureau therefor which shall authorize the driver to operate a motor vehicle for a period not exceeding seventy-two hours from the time and date of issue of said receipt. The period so fixed in the receipt shall not be extended, and shall become invalid thereafter. Failure of the driver to settle his case within fifteen days from the date of apprehension will be a ground for the suspension and/or revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual[12] provides the following procedure for flagging down vehicles during the conduct of checkpoints: SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a general concept and will not apply in hot pursuit operations. The mobile car crew shall undertake the following, when applicable: x x x m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation Report (TVR). Never indulge in prolonged, unnecessary conversation or argument with the driver or any of the vehicles occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said to have been under arrest. There was no intention on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into custody. Prior to the issuance of the ticket, the period during which petitioner was at the police station may be characterized merely as waiting time. In fact, as found by the trial court, PO3 Alteza himself testified that the only reason they went to the police sub-station was that petitioner had been flagged down almost in front of that place. Hence, it was only for the sake of convenience that they were waiting there. There was no intention to take petitioner into custody. In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed at length whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should

be considered custodial interrogation. The Court held that, such questioning does not fall under custodial interrogation, nor can it be considered a formal arrest, by virtue of the nature of the questioning, the expectations of the motorist and the officer, and the length of time the procedure is conducted. It ruled as follows: It must be acknowledged at the outset that a traffic stop significantly curtails the freedom of action of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either to ignore a policemans signal to stop ones car or, once having stopped, to drive away without permission. x xx However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced to speak where he would not otherwise do so freely, Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorists expectations, when he sees a policemans light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way. In this respect, questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek. See id., at 451. Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. x x x In both of these respects, the usual traffic stop is more analogous to a socalled Terry stop, see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not in custody for the purposes of Miranda.

xxx

xxx

xxx

We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspects freedom of action is curtailed to a degree associated with formal arrest. California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him in custody for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam). (Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest questions while still at the scene of the traffic stop, he was not at that moment placed under custody (such that he should have been apprised of his Miranda rights), and neither can treatment of this sort be fairly characterized as the functional equivalent of a formal arrest. Similarly, neither can petitioner here be considered under arrest at the time that his traffic citation was being made. It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the failure to wear a crash helmet while riding a motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest need not be issued if the information or charge was filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be made for such an offense. This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an intent on the part of the police officer to deprive the motorist of liberty, or to take the latter into custody, the former may be deemed to have arrested the motorist. In this case, however, the officers issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest for the same violation. Even if one were to work under the assumption that petitioner was deemed arrested upon being flagged down for a traffic violation and while awaiting the issuance of his ticket, then the requirements for a valid arrest were not complied with. This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to inform the latter of the reason for the arrest and must show that person the warrant of

arrest, if any. Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any statement they might make could be used against them. [14] It may also be noted that in this case, these constitutional requirements were complied with by the police officers only after petitioner had been arrested for illegal possession of dangerous drugs. In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person apprehended due to a traffic violation: The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the inherently compelling pressures generated by the custodial setting itself, which work to undermine the individuals will to resist, and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies.

If it were true that petitioner was already deemed arrested when he was flagged down for a traffic violation and while he waiting for his ticket, then there would have been no need for him to be arrested for a second timeafter the police officers allegedly discovered the drugsas he was already in their custody. Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal. The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental to a lawful arrest; (ii) search of evidence in plain view; (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) a stop and frisk search; and (vii) exigent and emergency circumstances.[15] None of the above-mentioned instances, especially a search incident to a lawful arrest, are applicable to this case. It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in plain view. It was actually concealed inside a metal container inside petitioners pocket. Clearly, the evidence was not immediately apparent.[16]

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown by clear and convincing evidence.[17] It must be voluntary in order to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given and uncontaminated by any duress or coercion. While the prosecution claims that petitioner acceded to the instruction of PO3 Alteza, this alleged accession does not suffice to prove valid and intelligent consent. In fact, the RTC found that petitioner was merely told to take out the contents of his pocket.[18] Whether consent to the search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether the defendant was in a public or a secluded location; (3) whether the defendant objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendants belief that no incriminating evidence would be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State that has the burden of proving, by clear and positive testimony, that the necessary consent was obtained, and was freely and voluntarily given.[19] In this case, all that was alleged was that petitioner was alone at the police station at three in the morning, accompanied by several police officers. These circumstances weigh heavily against a finding of valid consent to a warrantless search. Neither does the search qualify under the stop and frisk rule. While the rule normally applies when a police officer observes suspicious or unusual conduct, which may lead him to believe that a criminal act may be afoot, the stop and frisk is merely a limited protective search of outer clothing for weapons.[20] In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops a person for speeding and correspondingly issues a citation instead of arresting the latter, this procedure does not authorize the officer to conduct a full search of the car. The Court therein held that there was no justification for a full-blown search when the officer does not arrest the motorist. Instead, police officers may only conduct minimal intrusions, such as ordering the motorist to alight from the car or doing a patdown:

In Robinson, supra, we noted the two historical rationales for the search incident to arrest exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. x x x But neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case. We have recognized that the first rationaleofficer safetyis both legitimate and weighty, x x x The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest. In Robinson, we stated that a custodial arrest involves danger to an officer because of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station. 414 U. S., at 234-235. We recognized that [t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest. Id., at 234, n. 5. A routine traffic stop, on the other hand, is a relatively brief encounter and is more analogous to a so-called Terry stop . . . than to a formal arrest. Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296 (1973) (Where there is no formal arrest . . . a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence). This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for officer safety in this context may justify the minimal additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full fieldtype search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they may order out of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414; perform a patdown of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a Terry patdown of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981). Nor has Iowa shown the second justification for the authority to search incident to arrestthe need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car. (Emphasis supplied.) The foregoing considered, petitioner must be acquitted. While he may have failed to object to the illegality of his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does

not, however, mean a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.[22] The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.[23] Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. While the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.[24] The subject items seized during the illegal arrest are inadmissible.[25] The drugs are the very corpus delicti of the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal of the accused.[26] WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case No. RTC 20030087, is herebyREVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and ordered immediately released from detention, unless his continued confinement is warranted by some other cause or ground. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 157870 November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA),respondents.

x-----------------------------------------------x G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents. x-----------------------------------------------x G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner vs. COMMISSION ON ELECTIONS, respondents. DECISION VELASCO, JR., J.: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

xxxx (f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. Authorized Drug Testing. - x x x xxxx (g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x. NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486. Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day of the election, is at least thirty - five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And

for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self - incrimination, and for being contrary to the due process and equal protection guarantees. The Issue on Locus Standi First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.2 It is basic that the power of judicial review can only be exercised in connection with a bona fidecontroversy which involves the statute sought to be reviewed.3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.5 The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues The principal issues before us are as follows: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,7 or alter or enlarge the Constitution. Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.8 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.9 Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.10 Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.13 Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As

couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug - free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing requirement. It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti drug abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. xxxx Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.15 The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment19 of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a

student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug - testing policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug - testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited not just upon the users, but upon the entire student body and faculty.22Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.24Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.25 The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.29 As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion.30 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees--and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as

formulated inOple v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32 The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results."35Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that

the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.38 Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g)of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT EN BANC G.R. No. 160792 August 25, 2005 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA, and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners, vs. GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC. ROILO GOLEZ,Respondents. DECISION CARPIO, J.: The Case This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17 September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals

Decision and Resolution dismissed the petition for habeas corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido ("petitioners") on behalf of their detained clients Capt. Gary Alejano (PNMarines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees"). Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the Intelligence Service of the Armed Forces of the Philippines ("ISAFP"), who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of the Philippines ("AFP"), Secretary of National Defense and National Security Adviser, because they have command responsibility over Gen. Cabuay. Antecedent Facts Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the Oakwood Premier Luxury Apartments ("Oakwood"), an upscale apartment complex, located in the business district of Makati City. The soldiers disarmed the security officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly renounced their support for the administration and called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members. Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several negotiations with government emissaries. The soldiers later defused the explosive devices they had earlier planted. The soldiers then returned to their barracks. On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities were investigating the soldiers involvement in the Oakwood incident. On 1 August 2003, government prosecutors filed an Information for coup detat with the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup detat as defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the Commanding Officers of ISAFP. On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel under their command who took part in the Oakwood incident except the detained junior officers who were to remain under the custody of ISAFP. On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12 August 2003, the Court issued a Resolution, which resolved to: (a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the Court of Appeals for RAFFLEamong the Justices thereof for hearing, further proceedings and

decision thereon, after which a REPORT shall be made to this Court within ten (10) days from promulgation of the decision.3 Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a return of the writ and to appear and produce the persons of the detainees before the Court of Appeals on the scheduled date for hearing and further proceedings. On the same date, the detainees and their other co-accused filed with the Regional Trial Court of Makati City a Motion for Preliminary Investigation, which the trial court granted. On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the Writ and Answer to the petition and produced the detainees before the Court of Appeals during the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate court considered the petition submitted for decision. On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere to his commitment made in court regarding visiting hours and the detainees right to exercise for two hours a day. The Ruling of the Court of Appeals The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already charged of coup detat before the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as the detainees confinement is under a valid indictment, the legality of which the detainees and petitioners do not even question. The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail the legality of detention if there is a deprivation of a constitutional right. However, the appellate court held that the constitutional rights alleged to have been violated in this case do not directly affect the detainees liberty. The appellate court ruled that the regulation of the detainees right to confer with their counsels is reasonable under the circumstances. The appellate court declared that while the opening and reading of Trillanes letter is an abhorrent violation of his right to privacy of communication, this does not justify the issuance of a writ of habeas corpus. The violation does not amount to illegal restraint, which is the proper subject of habeas corpus proceedings. The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he made in open court to uphold the visiting hours and the right of the detainees to exercise for two hours a day. The dispositive portion of the appellate courts decision reads: WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to uphold the constitutional rights of the detainees in accordance with the Standing Operations Procedure No. 0263-04 regarding visiting hours and the right of the detainees to exercise for two (2) hours a day.

SO ORDERED.4 The Issues Petitioners raise the following issues for resolution: A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF THE SUPREME COURT; B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS DETENTION.5 The Ruling of the Court The petition lacks merit. Petitioners claim that the Courts 12 August 2003 Order granted the petition and the Court remanded the case to the Court of Appeals only for a factual hearing. Petitioners thus argue that the Courts Order had already foreclosed any question on the propriety and merits of their petition. Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court referred to the Court of Appeals the duty to inquire into the cause of the junior officers detention. Had the Court ruled for the detainees release, the Court would not have referred the hearing of the petition to the Court of Appeals. The Court would have forthwith released the detainees had the Court upheld petitioners cause. In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition.6 The respondent must produce the person and explain the cause of his detention.7 However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the Courts order to the Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus. For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the determination of the propriety of the remedy. If a court finds the alleged cause of the detention unlawful, then it should issue the writ and release the detainees. In the present case, after hearing the case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate court had no jurisdiction to inquire into the merits of their petition. The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to address the detainees complaint against the regulations and conditions in the ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person.8 The purpose of the writ is to determine whether a person is being illegally deprived of his liberty.9 If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use

of habeas corpus is thus very limited. It is not a writ of error.10 Neither can it substitute for an appeal.11 Nonetheless, case law has expanded the writs application to circumstances where there is deprivation of a persons constitutional rights. The writ is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are also unnecessary, and where a deprivation of freedom originally valid has later become arbitrary.12 However, a mere allegation of a violation of ones constitutional right is not sufficient. The courts will extend the scope of the writ only if any of the following circumstances is present: (a) there is a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void as to the excess.13 Whatever situation the petitioner invokes, the threshold remains high. The violation of constitutional right must be sufficient to void the entire proceedings.14 Petitioners admit that they do not question the legality of the detention of the detainees. Neither do they dispute the lawful indictment of the detainees for criminal and military offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center preventing petitioners as lawyers from seeing the detainees their clients any time of the day or night. The regulation allegedly curtails the detainees right to counsel and violates Republic Act No. 7438 ("RA 7438").15 Petitioners claim that the regulated visits made it difficult for them to prepare for the important hearings before the Senate and the Feliciano Commission. Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees right to privacy of communication when the ISAFP officials opened and read the personal letters of Trillanes and Capt. Milo Maestrecampo ("Maestrecampo"). Petitioners further claim that the ISAFP officials violated the detainees right against cruel and unusual punishment when the ISAFP officials prevented the detainees from having contact with their visitors. Moreover, the ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the detention cells, limiting the already poor light and ventilation in the detainees cells. Pre-trial detainees do not forfeit their constitutional rights upon confinement.16 However, the fact that the detainees are confined makes their rights more limited than those of the public.17 RA 7438, which specifies the rights of detainees and the duties of detention officers, expressly recognizes the power of the detention officer to adopt and implement reasonable measures to secure the safety of the detainee and prevent his escape. Section 4(b) of RA 7438 provides: Section 4. Penalty Clause. a) x x x b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring privately chosen by him or by any member of his immediate family with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. (Emphasis supplied) True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client "at any hour of the day or, in urgent cases, of the night." However, the last paragraph of the same Section 4(b) makes the express qualification that "notwithstanding" the provisions of Section 4(b), the detention officer has the power to undertake such reasonable measures as may be necessary to secure the safety of the detainee and prevent his escape. The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a detainees confinement must be "reasonable measures x x x to secure his safety and prevent his escape." Thus, the regulations must be reasonably connected to the governments objective of securing the safety and preventing the escape of the detainee. The law grants the detention officer the authority to "undertake such reasonable measures" or regulations. Petitioners contend that there was an actual prohibition of the detainees right to effective representation when petitioners visits were limited by the schedule of visiting hours. Petitioners assert that the violation of the detainees rights entitle them to be released from detention. Petitioners contention does not persuade us. The schedule of visiting hours does not render void the detainees indictment for criminal and military offenses to warrant the detainees release from detention. The ISAFP officials did not deny, but merely regulated, the detainees right to counsel. The purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety and security of all detainees. American cases are instructive on the standards to determine whether regulations on pre-trial confinement are permissible. In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations must be reasonably related to maintaining security and must not be excessive in achieving that purpose. Courts will strike down a restriction that is arbitrary and purposeless.19 However, Bell v. Wolfish expressly discouraged courts from skeptically questioning challenged restrictions in detention and prison facilities.20 The U.S. Supreme Court commanded the courts to afford administrators "wide-ranging deference" in implementing policies to maintain institutional security.21 In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make regulations in detention centers allowable: "such reasonable measures as may be necessary to secure the detainees safety and prevent his escape." In the present case, the visiting hours accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of securing the safety and preventing the escape of all detainees. While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment of detainees right to counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission from the ISAFP officials to confer with their clients beyond the visiting hours.

The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient time to confer with the detainees. The detainees right to counsel is not undermined by the scheduled visits. Even in the hearings before the Senate and the Feliciano Commission,22 petitioners were given time to confer with the detainees, a fact that petitioners themselves admit.23 Thus, at no point were the detainees denied their right to counsel. Petitioners further argue that the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with plywood amount to unusual and excessive punishment. This argument fails to impress us.Bell v. Wolfish pointed out that while a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes with a detainees desire to live comfortably.24The fact that the restrictions inherent in detention intrude into the detainees desire to live comfortably does not convert those restrictions into punishment.25 It is when the restrictions are arbitrary and purposeless that courts will infer intent to punish.26 Courts will also infer intent to punish even if the restriction seems to be related rationally to the alternative purpose if the restriction appears excessive in relation to that purpose.27 Jail officials are thus not required to use the least restrictive security measure.28 They must only refrain from implementing a restriction that appears excessive to the purpose it serves.29 We quote Bell v. Wolfish: One further point requires discussion. The petitioners assert, and respondents concede, that the "essential objective of pretrial confinement is to insure the detainees presence at trial." While this interest undoubtedly justifies the original decision to confine an individual in some manner, we do not accept respondents argument that the Governments interest in ensuring a detainees presence at trial is the only objective that may justify restraints and conditions once the decision is lawfully made to confine a person. "If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention." The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institutions interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.30

An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or "disability," and (2) the purpose of the action is to punish the inmate.31 Punishment also requires that the harm or disability be significantly greater than, or be independent of, the inherent discomforts of confinement.32

Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably related to maintaining security. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet convicted are awaiting trial for serious, violent offenses and may have prior criminal conviction.34 Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes.35 Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other contraband.36 The restriction on contact visits was imposed even on low-risk detainees as they could also potentially be enlisted to help obtain contraband and weapons.37 The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments of the detainees.38 Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of internal security.39 This case reaffirmed the "hands-off" doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that courts should decline jurisdiction over prison matters in deference to administrative expertise.40 In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical contact but still allow the detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford. The limitation on the detainees physical contacts with visitors is a reasonable, nonpunitive response to valid security concerns. The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This measure intends to fortify the individual cells and to prevent the detainees from passing on contraband and weapons from one cell to another. The boarded grills ensure security and prevent disorder and crime within the facility. The diminished illumination and ventilation are but discomforts inherent in the fact of detention, and do not constitute punishments on the detainees. We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped detention cells. The detainees are treated well and given regular meals. The Court of Appeals noted that the cells are relatively clean and livable compared to the conditions now prevailing in the city and provincial jails, which are congested with detainees. The Court of Appeals found the assailed measures to be reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from the soldiers, a suspected New Peoples Army ("NPA") member and two suspected Abu Sayyaf members are detained in the ISAFP Detention Center. We now pass upon petitioners argument that the officials of the ISAFP Detention Center violated the detainees right to privacy when the ISAFP officials opened and read the letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out that the letters were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP Detention Center. Petitioners contend that the Constitution prohibits the infringement of a citizens privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP officials opened the letters.

Courts in the U.S. have generally permitted prison officials to open and read all incoming and outgoing mail of convicted prisoners to prevent the smuggling of contraband into the prison facility and to avert coordinated escapes.41 Even in the absence of statutes specifically allowing prison authorities from opening and inspecting mail, such practice was upheld based on the principle of "civil deaths."42 Inmates were deemed to have no right to correspond confidentially with anyone. The only restriction placed upon prison authorities was that the right of inspection should not be used to delay unreasonably the communications between the inmate and his lawyer.43 Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials received respect.44 The confidential correspondences could not be censored.45 The infringement of such privileged communication was held to be a violation of the inmates First Amendment rights.46 A prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by the legitimate interests of prison authorities in the administration of the institution.47 Moreover, the risk is small that attorneys will conspire in plots that threaten prison security.48 American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted inmates and pre-trial detainees. The case of Palmigiano v. Travisono49 recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication. Censorship of pre-trial detainees mail addressed to public officials, courts and counsel was held impermissible. While incoming mail may be inspected for contraband and read in certain instances, outgoing mail of pre-trial detainees could not be inspected or read at all. In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S. Supreme Court held that prison officials could open in the presence of the inmates incoming mail from attorneys to inmates. However, prison officials could not read such mail from attorneys. Explained the U.S. Supreme Court: The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to inmates, has been considerably narrowed in the course of this litigation. The prison regulation under challenge provided that (a)ll incoming and outgoing mail will be read and inspected, and no exception was made for attorney-prisoner mail. x x x Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented is whether letters determined or found to be from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques fail to indicate contraband. xxx x x x If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a near impossible task of administration would be imposed. We think it entirely appropriate that the State require any such communications to be specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that the letters marked privileged are actually from members of the bar. As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmates presence

insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials opening the letters. We disagree with the Court of Appeals that this should only be done in appropriate circumstances. Since a flexible test, besides being unworkable, serves no arguable purpose in protecting any of the possible constitutional rights enumerated by respondent, we think that petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires.51 In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus: However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, chief among which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.53 The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no distinction as to the detainees limited right to privacy. State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be censored for the furtherance of a substantial government interest such as security or discipline. State v. Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail and reading it is also permissible. We quote State v. Dunn: [A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoners expectation of privacy always yield to what must be considered a paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally pose an even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are detained prior to trial may in many cases be individuals who are charged with serious crimes or who have prior records and may therefore pose a greater risk of escape than convicted inmates.55 Valencia v. Wiggins56 further held that "it is impractical to draw a line between convicted prisoners and pretrial detainees for the purpose of maintaining jail security." American cases recognize that the unmonitored use of pre-trial detainees non-privileged mail poses a genuine threat to jail security.57 Hence, when a detainee places his letter in an envelope for non-privileged mail, the detainee knowingly exposes his letter to possible inspection by jail officials.58 A pre-trial detainee has no reasonable expectation of privacy for his incoming mail.59 However, incoming mail from lawyers of inmates enjoys limited protection such that prison officials can open and inspect the mail for contraband but could not read the contents without

violating the inmates right to correspond with his lawyer.60 The inspection of privileged mail is limited to physical contraband and not to verbal contraband.61 Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees letters in the present case violated the detainees right to privacy of communication. The letters were not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband. The letters alleged to have been read by the ISAFP authorities were not confidential letters between the detainees and their lawyers. The petitioner who received the letters from detainees Trillanes and Maestrecampo was merely acting as the detainees personal courier and not as their counsel when he received the letters for mailing. In the present case, since the letters were not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between the detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. That a law is required before an executive officer could intrude on a citizens privacy rights62 is a guarantee that is available only to the public at large but not to persons who are detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy rights. In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts "balance the guarantees of the Constitution with the legitimate concerns of prison administrators."63 The deferential review of such regulations stems from the principle that: [s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.64 The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup detat, a crime punishable with reclusion perpetua.65 The junior officers are not ordinary detainees but visible leaders of the Oakwood incident involving an armed takeover of a civilian building in the heart of the financial district of the country. As members of the military armed forces, the detainees are subject to the Articles of War.66 Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the NPA. Thus, we must give the military custodian a wider range of deference in implementing the regulations in the ISAFP Detention Center. The military custodian is in a better position to know the security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and NPA members. Since the appropriate regulations depend largely on the security risks involved, we should defer to the regulations adopted by the military custodian in the absence of patent arbitrariness. The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional rights of the detainees and prisoners will be

reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to question conditions of confinement.67The writ of habeas corpus will only lie if what is challenged is the fact or duration of confinement.68 WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 78545. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 182555 September 7, 2010

LENIDO LUMANOG and AUGUSTO SANTOS, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 185123 CESAR FORTUNA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 187745 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG, Accused, RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, Accused-Appellants. DECISION VILLARAMA, JR., J.: For review is the Decision1 dated April 1, 2008 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00667 which affirmed with modification the Joint Decision2 dated July 30, 1999 of the Regional

Trial Court of Quezon City, Branch 103 in Criminal Case Nos. Q-96-66679, Q-96-66680, Q-96-66682, Q-96-66683 and Q-96-66684. The consolidated cases arose in connection with the killing of former Chief of the Metropolitan Command Intelligence and Security Group of the Philippine Constabulary, now the Philippine National Police (PNP), Colonel Rolando N. Abadilla ("Abadilla"), who was ambushed in broad daylight while driving his car along Katipunan Avenue, Quezon City. The Facts On June 13, 1996, at around 8:00 oclock in the morning, Abadilla left his house at Soliven I, Loyola Grand Villas, Loyola Heights, Quezon City and drove his car, a black Honda Accord with Plate No. RNA-777. Soon after he left, his wife Susan Abadilla received a phone call from him and they briefly talked. Just a few minutes after their conversation, she received another phone call from Abadillas tailor who was asking about her husband because, according to him, he heard a radio broadcast report that Abadilla met an accident.3 Meanwhile, at about 8:40 a.m., Senior Police Officer (SPO) 2 Arthur Ortiz, the desk officer on duty at Station 8 of the Central Police District Command (CPDC) located at P. Tuazon Blvd., Project 4, Quezon City, answered a telephone call from a male person who reported a shooting incident along Katipunan Avenue. Station Commander Police Chief Inspector (Insp.) Edward Villena, together with his investigators SPO2 Wahab Magundacan, Police Officer (PO) 2 Gerardo Daganta and PO1 Ronald Francisco immediately boarded a PNP marked vehicle and headed towards Katipunan Avenue.4 Upon reaching the area at 8:45 a.m., they saw several onlookers around and near a black Honda Accord with Plate No. RNA-777 on a stop position in the middle lane of Katipunan Avenue facing south going to Libis. They found the victims bloodied and bullet-riddled body partly slumped onto the pavement at the cars left door, which was open. The front windshield and sliding glass windows on the left and right side were shattered; a hole was seen on the glass window of the left rear door, apparently pierced by a bullet. Glass splinters were scattered inside the car and on the pavement at both sides of the car. On orders of Chief Insp. Villena, PO2 Daganta and PO1 Francisco assisted by a certain Cesar Espiritu, immediately brought the victim to the Quirino Memorial Hospital in Project 4, Quezon City. SPO2 Magundacan was instructed to stay behind to cordon the area for the start of the investigation while Chief Insp. Villena went to their station to get his camera.5 After ten (10) minutes, Chief Insp. Villena returned and took pictures of the crime scene, and also of the victim at the hospital.6 SPO2 Magundacan was able to pick up several spent shells and two (2) slugs, apparently fired from .45 and 9 mm. pistols.7 A sketch was prepared by PO2 Daganta who also interviewed some of the witnesses present at the crime scene.8 The spot report and list of recovered items (including a Philippine Military Academy gold ring on which was engraved the name "Rolando N. Abadilla") were later prepared by SPO2 Magundacan at the police station.9 On the same day, witnesses Cesar F. Espiritu (who was driving his car ahead of the victim), Aurora Urbano (Metro Aide), Ani C. Icot (house gardener of the Abadilla family, Freddie Alejo (security guard posted at Eliscon Electrical Supply store located at 211 Katipunan Avenue) and Minella Alarcon (college professor at Ateneo de Manila University) gave their respective statements before the Criminal Investigation Division of the Central Police District Command (CID-CPDC), PNPNational Capital Region (NCR) at Camp Karingal, Sikatuna Village, Quezon City, while the statement of Merlito Herbas (security guard posted at the Blue Ridge Realty Corporation located at No. 219

Katipunan Avenue, Quezon City) was taken at Station No. 8, CPDC at P. Tuazon Blvd., Proj. 4, Quezon City.10 Based on their accounts, the black Honda Accord with Plate Number RNA-777 was caught in traffic while traversing Katipunan Avenue going to Santolan at past 8:00 oclock on the morning of June 13, 1996. While on a stop position, four (4) men armed with handguns surrounded the said car and fired several successive shots at the man inside it. One (1) of the men who were positioned at the left side of the car opened its door and took something inside. He grabbed the victim by the neck and dropped his body down towards the pavement at the left door. When there were already several people who had come out to see what was happening, one of the suspects shouted, "Walang gagalawDapa!" Minella Alarcon, who was then with her son-in-law on board her white KIA Pride, was following the victims car (at other side or diagonal line) at the time of the incident. After the shooting, two (2) of the armed men who fired at the victims car approached their car and pounded at it saying "BabaBaba!" Terrified, she and her son-in-law got off and crawled towards the side of the street. The assailants then boarded the KIA Pride and went away to the direction of an alley along Katipunan Avenue. Her car was later recovered, as it was found abandoned along Aguinaldo Street near the corner of J.P. Rizal Street, Project 4, Quezon City, still with bloodstains on the car door.11 The victim was pronounced dead on arrival at the hospital. The victims identity was confirmed by Susan Abadilla who had rushed to the hospital. Chief Insp. Villena escorted her in bringing the victims body to the PNP Crime Laboratory in Camp Crame for the autopsy requested by the CPDC, PNP-NCR, Camp Karingal.12 From the testimony and medico-legal report of Dr. Jesusa N. Vergara, it was disclosed that the victim died of hemorrhage as a result of multiple gunshot wounds, mostly in the head and chest, and also sustained abrasions, contusions, lacerated skin, hematoma and incised wounds or cuts in the skin caused by glass splinters.13 Records indicate that immediately after the incident, elements of the CPDC, PNP-NCR at Camp Karingal were already coordinating with investigators of Station 8-CPDC who had turned over to said office the evidence gathered and referred the witnesses present at the crime scene.14 As a result of follow-up operations, Joel de Jesus, alias "Tabong," was apprehended on June 19, 1996 at his house at Dahlia St., Fairview, Quezon City. He executed his Sinumpaang Salaysay dated June 20, 1996 and Karagdagang Sinumpaang Salaysay dated June 21, 1996.15 In his first statement, Joel de Jesus narrated that on June 13, 1996 at 6:30 in the morning after parking his tricycle at the corner of Regalado and Camaro Streets, Fairview, he was fetched by Lorenzo "Larry" delos Santos who was his neighbor at Ruby St. Larry was accompanied by his nephew Ogie, and a certain "Tisoy" who drove the owner-type jeep. Larry told him they were going to kill a big-time personality ("may titirahin na malaking tao"), whose name was Abadilla, and that they were going to ambush the latter at Katipunan Avenue. The ambush would be carried out by Joel, Larry, Tisoy, Ram (de Jesus), Cesar who was a policeman, and four (4) others. That same morning, they proceeded to Katipunan Avenue on board Larrys owner-type jeep without a plate and a Mitsubishi L-300 van. They carried .45 and 9 mm. pistols; Joel used a .38 caliber revolver. According to Joel, he only acted as lookout; Lorenzo, Ram and Cesar were the ones who fired shots, while Tisoy focused on a security guard at a store. After the shooting, they separated ways: the owner-type jeep he was riding in headed towards Santolan; Cesars group split so that three (3) of them rode the L-300 van and the three (3) others boarded a car stolen from a woman driver. Upon reaching Commonwealth Avenue and Tandang Sora, they stopped at Glori Supermarket where all

the firearms used were returned to the group, including the revolver earlier given to Joel. It was already dusk when Lorenzo dropped him off at the tricycle parking area at Camaro St.16 Joel further stated that the ambush-slay of Abadilla was planned by the group three (3) days before, when they met at the house of Ram de Jesus also in Fairview near his house. Although he did not know the identity of the person who masterminded the ambush-slay of Abadilla, he described the mastermind as the one (1) who opened Abadillas car and pulled Abadilla from the inside of the car, and he was also the one (1) who drove the L-300 van. Lorenzo told him he should not worry because Lorenzo would take care that he would be compensated for his participation. When they reached Katipunan Avenue, they alighted from their respective vehicles to wait for Abadilla. The L300 van where the mastermind and Cesar rode was just behind Abadillas car. There was no more order given to fire because when traffic stopped the vehicles on the road, those in the L-300 van just got down, positioned themselves and fired upon Abadilla. The mastermind not only fired at Abadilla from outside the latters car, he even made sure Abadilla was dead, as half of his body went inside the car, firing again at Abadilla before finally dropping him to the ground. Joel added that he just remained silent after the incident, for which he did not earn anything and was threatened by one (1) of those who were in the L-300 van whose name he did not know.17 In his second statement, Joel pointed to his cohorts in a police line-up inside the CID-CPDC, PNPNCR, Camp Karingal, Quezon City where he positively identified Rameses de Jesus ("Ram"), Cesar Fortuna, Lenido Lumanog and PO2 Romeo Costibolo as among those who participated in the ambush-slaying of Abadilla on June 13, 1996.18 The afore-named suspects identified by Joel were apprehended during further follow-up operations conducted on June 20, 1996 by "Task Force Rolly" subsequently formed by the PNP after the lead initially provided by him. As mentioned in the Joint Affidavit executed by Police Senior Inspector (P/Sr. Insp.) Ronello N. Navarro, Police Inspector (P/Insp.) Ferdinand A. Marticio, SPO4 Wilfredo G. Galvan and SPO1 Allan dela Cruz dated June 21, 1996, as early as June 15, 1996, or two (2) days after the ambush-slay of Abadilla, their investigation already established the identities of a number of suspects through photo files and forensic sketches of suspects provided by eyewitnesses.19 Said arresting officers were also able to seize certain firearms and other pieces of evidence, to wit: 4. That after SPO2 cesar Fortuna revealed the whereabouts of the slain victims stolen cal .45 pistol, we conducted a follow up in a gunsmith located at Sampaloc, Manila on 21 June 1996, from where we held for investigation, one DANTE MONTEVIRGEN y VILLANUEVA, 37 years old, married, self-employed/gunsmith, native of Pula, Oriental Mindoro and with given address at 1412 Riverside Street, Commonwealth Avenue, Bgy. Holy Spirit, Quezon City. 5. That upon confrontation said subject person surrendered two (2) cal .45 pistols whom suspect Cesar Fortuna allegedly brought to him for repair/tampering of serial numbers, to wit: (a) 1- COLT MARK IV cal .45 pistol Govt Model SN-66B5574; and (b) 1-COLT MARK IV cal .45 pistol Series 70 SN-647048.

6. On the same day, 21 June 1996, after SPO2 Cesar Fortuna expressed willingness to surrender the motorcycle allegedly used in casing and surveillance upon the deceased victim, we took said motorcycle at Gate 2 of Camp Crame along Santolan Road (Col Bony Serrano Avenue), Quezon City, to wit: 1- Unit, KAWASAKI motorcycle without license plate, chassis No. C-5121696, Motor No. 658 122951 7. That the aforenamed subject person together with the property/articles recovered were turned over to the Police Headquarters for investigation and appropriate action; x x x20 With respect to Lorenzo delos Santos, he also executed a statement dated June 21, 1996 admitting his participation in the ambush-slay of Abadilla on June 13, 1996, and pointing to Rameses de Jesus as the mastermind and also named the following suspects: "POGS" whose real name was Lenido Lumanog, Joel de Jesus alias "Tabong," Cesar Fortuna and four (4) others whom he did not know. He said that he was just brought along by Rameses de Jesus and was further threatened that if he would not go with them, they would kill his family. He claimed that he merely acted as a lookout. As similarly recounted by Joel, Lorenzo stated that the group used an L-300 van, a car and a jeep in going to Katipunan Avenue in the morning of June 13, 1996. Joel had a .45 cal pistol, Cesar a .38 revolver, Lenido a 9 mm., a certain Manuel dela Rosa who did not get out of the vehicle, carried a .38 cal revolver, and Lorenzo, also a .38 cal revolver. Rameses, Joel, Cesar and Lenido were the ones who shot Abadilla. After the shooting, the group left him behind and he just walked on the street before taking a taxi ride to the Bureau of Customs. Lorenzo maintained that he was not given any money. He was just picked up from his house at Ruby St., Fairview Subdivision by Rameses, Lenido, Cesar and Joel. He was made to board Rameses car with a warning that if he did not join the group, they would throw a hand grenade at his family.21 In his Karagdagang Salaysay dated June 21, 1996, security guard Freddie Alejo positively identified Joel and Lorenzo during a police line-up. Alejo confirmed these two (2) as the persons he saw from his guard post walking to and fro before the shooting incident. They were also the ones who shouted that no one (1) should interfere at the time the four (4) armed men were firing shots at Abadilla.22 SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Lorenzo delos Santos y Dela Cruz, Lenido Lumanog y Luistro, Joel de Jesus y Valdez and Arturo Napolitano y Caburnay were charged in Criminal Case No. Q-96-66679 with theft of the alleged gun owned by the late Abadilla (Colt Mark IV cal .45 pistol SN-66BS574), a gold-plated Omega wristwatch and a wallet containing an undetermined amount of cash plus calling cards and other important papers, all of which were supposedly stolen by them after killing Abadilla.23 On the other hand, Lorenzo delos Santos y Dela Cruz, SPO2 Cesar Fortuna y Abudo and Rameses de Jesus y Calma were respectively charged with illegal possession of firearms (Presidential Decree No. 1866) in Criminal Case Nos. Q-96-66680, Q-96-66682 and Q-96-66683.24 All the seven (7) named accused in Criminal Case No. Q-96-66684 were indicted for Murder under the following Information:

That on or about the 13th day of June, 1996 in Quezon City, Philippines, the above-named accused, conspiring together, confederating with several other persons whose true names, identities, whereabouts have not as yet been ascertained and mutually helping with one another, did then and there, wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery, in consideration of a price, reward or promise, and taking advantage of superior strength, attack and employ personal violence upon the person of COL. ROLANDO ABADILLA y NOLASCO by then and there shooting the latter with the use of different kinds of firearms, hitting him on the different parts of his body, thereby causing the instant and immediate cause of his death, to the damage and prejudice of the heirs of the said COL. ROLANDO ABADILLA y NOLASCO. Contrary to law.25 When arraigned, all the accused pleaded not guilty to the murder charge. In view of the dismissal of the criminal cases for illegal possession of firearms (P.D. No. 1866) and theft (Criminal Case Nos. Q-96-66679, Q-96-66680, Q-96-66682 and Q-96-66683),26 our discussion of the proceedings before the trial court will be confined to the case for murder against Fortuna, Lumanog, Joel de Jesus, Rameses de Jesus and Santos. Evidence for the Prosecution The prosecution presented the testimonies of police officers who conducted the investigation and follow-up operations up to the actual apprehension of suspects in the killing of Abadilla: SPO2 Wahab Magundacan, PO2 Gerardo Daganta, Maj. Edward Villena, P/Insp. Rogelio Castillo, SPO2 Jose Garcia, Jr., SPO3 Romeo De Guzman, SPO2 Pio Tarala, Atty. Florimond Rous, P/Sr. Insp. Jose B. Macanas and P/Insp. Ferdinand Marticio. The testimonies of P/Insp. Castillo, SPO2 Garcia, SPO2 Tarala, Atty. Rous and P/Sr. Insp. Macanas were given in court in the light of serious allegations of torture, forced confessions and violations of constitutional rights raised by the accused, which were widely reported in the media and brought before the Commission of Human Rights (CHR) and eventually to Amnesty International-USA. P/Insp. Castillo, testifying on cross-examination, admitted that accused Joel de Jesus was apprehended by members of his squad led by Lt. Rodolfo on June 19, 1996, but said suspect was not presented to him until noontime of the next day, June 20, 1996. He did not ask his men if Joel had been subjected to investigation and if he was, whether he was assisted by counsel. He explained that there were still then follow-up operations in which they needed Joel. As for the press conference wherein Joel was presented together with then Secretary Barbers and General Recaredo Sarmiento, he learned about it only later.27 The witness declared that the constitutional mandate and requirements under Republic Act (R.A.) No. 7438 had been complied with because he secured the services of a counsel during the interrogation of then suspect Joel de Jesus when his sworn statement was taken on June 20, 1996. He had informed the said suspect of his right to counsel in the presence of CID personnel and when he brought him to the office of Atty. Confesor R. Sansano of the Integrated Bar of the Philippines (IBP) located at the second floor of the Hall of Justice, Quezon City Hall. Asked why it occurred to him to bring the suspect to the IBP, the witness replied that he believed IBP was a private, not a government, institution. He also asked Joel -- who was allowed to make a telephone call, although he was not aware if Joel made any such call -- whether he had his own lawyer. He recalled asking

Joel if he was willing to go with them to the City Hall, because he had asked to secure the services of counsel. There had been instances when the IBP lawyers assisted some suspects brought by the CPDC. The CPDC provided the typewriter and papers to be used and in this case, Atty. Sansano accommodated them in using the facilities of the IBP Chapter office. Joel executed his statement, with SPO2 Jose L. Garcia, Jr. propounding the questions. They started taking his statement at 1:10 p.m. of June 20, 1996 at Room 235, IBP Office, Quezon City Hall of Justice in the presence of Atty. Sansano and a number of people inside said office.28 He was apprised for the first time about a suspect (Joel) who was just apprehended when he called their office upon arriving home on the night of June 19, 1996. The information was given to him by the desk sergeant and thereupon he gave instruction to contact the witness and include that suspect in a line-up. He then informed their Chief regarding this development. When he asked for the whereabouts of this suspect, he was given the reply that the suspect was still with their squad conducting follow-up operations.29 P/Insp. Castillo recounted that he reported to the office at 8:00 oclock in the morning of June 20, 1996 and Joel was actually presented to him by Lt. Rodolfo at 10:00 oclock that same morning, in the presence of CID men. He told Joel he was being implicated in the case, to which Joel replied "Sir, lookout lang naman ako, sir." This initial questioning of Joel took place at the investigation room of the CID, where there were other private complainants talking to investigators, and there were a number of policemen around who were not in uniform. He advised Joel that he was free to use the telephone, and although Joel had no relatives present at that time, he warned Joel that his case was serious and he must seek the services of counsel. He first thought of the legal assistance provided by the City Attorney, then that by the Public Attorneys Office (PAO), and lastly by the IBP. Between 12:30 and 1:00 p.m., he and his men, together with Joel in a separate vehicle, left the CID to go to the Quezon City Hall. They scouted for a lawyer and inquired from the IBP chapter office. They found Atty. Florimond Rous and the lady counsel at a hearing in a courtroom. Atty. Rous advised them to wait for Atty. Sansano, who apparently was the head of the IBP chapter office. He was moving in and out of the office while the statement of Joel was being taken in the presence of Atty. Sansano. Before that, Atty. Sansano talked to Joel alone, after which they were called in again for the taking of the statement at 2:00 p.m. They left City Hall at past 4:00 or 5:00 that afternoon.30 SPO2 Garcia, Jr. testified that he was a member of the CID-CPDC at Camp Karingal. On June 20, 1996 when he reported for duty, he was assigned by P/Insp. Castillo to take down the statement of Joel de Jesus. While still inside the office of P/Insp. Castillo, he asked Joel if his statement was voluntary and what kind of statement he was going to give. Joel answered that his statement was voluntary and he wanted to be included as state witness in the Abadilla case. Together with Joel, SPO2 Tarala and SPO1 Edilberto Nicanor, he took lunch at the back of their office before proceeding to the Quezon City Hall at around 12:00 oclock noon, with P/Insp. Castillo who said that Joels statement would be taken infront of a counsel. At the Hall of Justice lobby, P/Insp. Castillo instructed them to guard Joel as he would look for a counsel. After more or less 25 to 30 minutes, P/Insp. Castillo came back and they proceeded to the second floor of the office of the IBP chapter. They were met by a lady secretary, and afterwards he saw P/Insp. Castillo talking to a lawyer whom he came to know as Atty. Rous. It seemed Atty. Rous could not decide on what P/Insp. Castillo told him and said he (Atty. Rous) would first ask the permission of Atty. Sansano. They waited for Atty. Sansano, who arrived in about twenty (20) to twenty-five (25) minutes. Atty. Sansano and P/Insp. Castillo talked for about five (5) minutes and thereafter, Atty. Sansano requested them to leave, because he would talk personally to Joel. Atty. Sansano and Joel talked inside the room for five (5) to ten (10) minutes. Thereafter, he, P/Insp. Castillo, SPO2 Tarala and SPO1 Edilberto Nicanor went inside the room and that was the time Atty. Sansano announced that Joel was ready for the taking of his statement.31

SPO2 Garcia, Jr. further testified that he took down the statement of Joel using a typewriter in the office of Atty. Sansano. He brought said typewriter near the table of Atty. Sansano and a chair to sit on beside Joel. Joel was seated infront of the desk where Atty. Sansano was sitting. After completing the taking down of the statement, he gave it to Joel and asked the latter to read it. Joel read the typewritten statement and when he finished reading, he gave the same to Atty. Sansano. Atty. Sansano read all the contents of the document and asked Joel if he understood it, to which he answered "Yes, sir." Atty. Sansano then asked Joel if he was willing to sign the statement, to which the latter again replied in the affirmative. Joel signed the statement in his presence and also that of Atty. Sansano, who likewise signed it in his presence. SPO2 Garcia, Jr. also identified his own signature and that of SPO1 Nicanor who signed the statement in his presence. From the office of Atty. Sansano, they proceeded to the fourth floor in the office of Prosecutor Ramon Gerona before whom Joel subscribed his statement. After reading the statement, Fiscal Gerona explained to Joel in Tagalog the consequences of the statement he executed. Joel was calm and said he was only a lookout in the crime. Earlier, before propounding questions to Joel at the office of Atty. Sansano, the latter addressed Joel in Tagalog: "Joel naiintindihan mo na ang mga itinatanong sa iyo ng mga pulis? Ito ba sarili mo o boluntaryo ba tong statement mo na ito hindi ka ba nila tinakot, sinaktan o anupaman?" While Joel was answering his questions, Atty. Sansano halted him from typing the answer given by Joel to ask the latter if he could understand the question propounded to him. The witness was also asked to identify Joel de Jesus inside the courtroom.32 On cross-examination, SPO2 Garcia, Jr. affirmed that before the taking down of the statement, he had explained to Joel the consequences of his being a state witness, in accordance with the instruction of P/Insp. Castillo. He specifically explained to Joel: "Itong statement na ito ay puwedeng gamitin laban o panig sa yo sa alinmang hukuman dito sa Pilipinas. Ikaw ba ay nakahandang tumestigo sa mga sasabihin ng tao dito sa statement mo na ito na magiging laban sa kanila." Joel told him, "Yes, sir." P/Insp. Castillo had told him that Joel was to turn state witness before the latter was brought to the IBP Office. When P/Insp. Castillo had returned to the lobby of the Hall of Justice, he told them that the only person present who would act as Joels counsel would be located at the IBP Office, and Joel would be brought there. It was his first time to meet Atty. Sansano. As to whether Joel was also assisted by Atty. Rous when he was investigated on June 21, 1996, the witness said he did not know.33 Regarding the portion of the statement dated June 20, 1996 wherein he asked Joel about a pending case against him, which Joel identified as a rape case, he denied having knowledge of any such pending case before the taking of the statement. He also did not ask Joel if he already had a counsel, or if Joel already knew Atty. Sansano. Another lawyer, Atty. Rous, was actually present when he was taking Joels statement at the office of Atty. Sansano, who was also present throughout the time he was taking down the statement of Joel. He did not hear Joel mention the name of another lawyer to Atty. Sansano, specifically that of Atty. David as suggested by defense counsel.34 SPO2 Tarala testified that as a member of the PNP Station in Kamuning, Quezon City, assigned at the CID, he came to investigate accused Lorenzo delos Santos on June 21, 1996. On that day, after lunch, he was instructed by P/Insp. Castillo to proceed to the Public Assistance and Reaction Against Crime (PARAC), Dallas Bldg. in Tomas Morato Avenue, because one (1) of the suspects in the Abadilla slaying was apprehended by the PARAC follow-up team and was supposed to give his statement. So he went there together with SPO1 Primo Borito and PO3 Ramil Hatchero. Upon arriving at said office, he met P/Sr. Insp. Macanas, who called a person he introduced as Lorenzo delos Santos. Before taking down the statement of Lorenzo, he advised the latter of his rights under the law, warning that any statement he would make could be used against him in any court of law, so that he had the right not to answer any question which to his mind would incriminate him. Lorenzo responded by saying that he wanted to give a statement and to be a state witness. When

Lorenzo asked if he could use a telephone at the information table, he said yes. Lorenzo then called his office because he was a customs broker, and also called up a relative who was a certain Col. Sala (Col. Milagros Sala), a Quezon City police official. He told Lorenzo that he should have a lawyer of his choice during the taking down of his statement. He prodded Lorenzo to call the lawyer, whom Lorenzo knew to be always at the City Hall. They then proceeded to the Quezon City Hall to look for that lawyer at the Office of the City Attorney. However, Lorenzo was not able to find said lawyer; he asked somebody (a woman) who referred them to the Hall of Justice. After failing to find the person Lorenzo was looking for to be his counsel, an old man, a vendor suggested to them to go upstairs at the IBP Office. The lady secretary of the IBP chapter office introduced them to Atty. Florimond Rous, who then asked him and his companions to step out of the room so Atty. Rous could talk to Lorenzo. Atty. Rous and Lorenzo talked for ten (10) to fifteen (15) minutes, after which they were called again to enter the office. His two (2) companions were left outside and he was told by Atty. Rous that he had already apprised Lorenzo of his rights, but Lorenzo still wanted to give a statement.35 Upon the instruction of Atty. Rous, he took down the statement of Lorenzo, the three (3) of them in one (1) corner of the room while over at the receiving area there were the secretary and a lady lawyer. The statement of Lorenzo was in Tagalog, typewritten in question-and-answer form. Each time after he had asked a question, Atty. Rous would in turn ask Lorenzo if he wanted to answer it, and Lorenzo would answer yes. He was at the typewriter, and the two (2) (Atty. Rous and Lorenzo) were infront of him, seated across each other. The taking of the statement started at about 3:10 in the afternoon and was finished in more than one (1) hour. He asked Lorenzo to read first his statement, and then Atty. Rous read it also. Next, they went up to the office of Fiscal Refuerzo, but was referred by the secretary to the inquest fiscal on duty, Fiscal Ben dela Cruz. At his office, Fiscal dela Cruz asked Lorenzo to stand infront of him and asked if the statement was voluntarily given by him, if what was contained therein was true, and if he was ready to swear before him. Lorenzo answered yes, and the subscribing of his statement before Fiscal dela Cruz was also witnessed by Atty. Rous.36 Lorenzo had earlier told him and his companions at the PARAC office that his participation in the ambush-slay of Abadilla was that of a lookout, and that he was only forced to join the group because of the threat to his family.37 SPO2 Tarala admitted that the first time he went to the IBP Office at the Hall of Justice was on June 20, 1996 when SPO2 Garcia, Jr. took the statement of Joel de Jesus. Since only SPO2 Garcia, Jr. and Joel stayed inside the room, he and his companion just walked around.38 Atty. Rous testified that he was one (1) of the free legal aid counsels of the Free Legal Aid Committee of the IBP-Quezon City Chapter. One (1) of their primary duties was to assist indigents in their cases, and aside from this, they were also tasked to assist the various suspects during custodial investigations in the various investigations of different agencies, such as the CIS and PNP. He recalled handling at least ten (10) to fifteen (15) of such custodial investigations. On June 21, 1996, he assisted a person by the name of Lorenzo delos Santos accompanied by a police investigator (whose name he could no longer remember) from the Central Police District, who told him that the said suspect was willing to make a confession and asked if he could assist him during his custodial investigation. He identified Lorenzo inside the courtroom.39 The police investigator had informed him of the charge against Lorenzo, which was the killing of Abadilla.40 Before the start of the investigation of Lorenzo, Atty. Rous related that he asked the policeman to leave him and Lorenzo. When the investigators were gone, he asked Lorenzo to remove his shirt so he could see if there were any tell-tale marks of any harm or specific mark upon him. Having satisfied himself that there were no such mark on the suspects body, Atty. Rous began interviewing

him. He asked Lorenzo if he was willing to execute a confession, and Lorenzo answered he was willing to do so. He then asked Lorenzo if he was willing to have him as his counsel. Evidently, Lorenzo wanted him to be his counsel during the custodial investigation for the taking of his statement. Convinced that Lorenzo was giving his statement without any pressure or force, they started the investigation proper. The police investigator who accompanied Lorenzo to their office was the one (1) who had propounded questions in Tagalog and typed the answers given by Lorenzo also in Tagalog. He was just within hearing distance and was present during the entire time of the taking of Lorenzos statement. Afterwards, he let Lorenzo read the typewritten statement, and he asked Lorenzo if those were the questions given to him and the answers he had given, to which he replied in the affirmative. He further asked Lorenzo if he was willing to sign the statement without pressure, and Lorenzo said he was willing to sign the same. He asked Lorenzo to sign his statement before the office of Prosecutor Ben dela Cruz. Prosecutor dela Cruz first read the statement and then asked Lorenzo if he was willing to sign the same, and he answered in the affirmative. Lorenzo signed the statement in their presence; he and Prosecutor dela Cruz also signed it.41 Atty. Rous further testified on cross-examination, that after the police investigator and Lorenzo had left, a few minutes later, some other investigators arrived at their office, bringing along Joel de Jesus. This Joel de Jesus had given a statement the previous day, June 20, 1996, and he was told that Joel would be giving this time a supplemental statement. The investigators apprised Joel of his constitutional rights before the taking down of his statement. He was not sure if Lorenzo and the police investigator had actually left already, and he could not remember exactly what transpired at this point. The defense counsel noted the absence of the word "competent" to qualify the word "counsel" in the preliminary portion of Lorenzos statement. Atty. Rous described the answers given by Lorenzo as spontaneous, and he did not recall any hesitancy on the part of the latter. He maintained that he found no contusions or abrasions on Lorenzos body.42 P/Sr. Insp. Macanas testified that he was then assigned at the PARAC as its operations officer. They were closely coordinating with and sharing evidence for case build-up operations with the CPDC in the investigation of the killing of Abadilla. On June 19, 1996, at around 3:00 oclock in the afternoon, they were directed to proceed to the CPDC headquarters in view of an information that a certain suspect alias "Tabong" was already located while repairing his tricycle somewhere in Fairview, during which he was identified by an eyewitness, security guard Alejo who went there with CPDC operatives. At the time this radio message was received, they were within the vicinity of Fairview, and the CPDC gave the signal for them to accost said suspect. He was present when "Tabong," who was later identified as Joel de Jesus, was arrested by the joint elements of the CPDC and PARAC. Joel was turned over to the CID-CPDC at about past 4:00 p.m. Subsequently, their superior, P/Sr. Supt. Bartolome Baluyot, informed them of revelations given by Joel, for which they were called in again for joint follow-up operations. They brought Joel to Fairview along Ruby St. where Joels supposed companions, namely: one alias "Ram," Lorenzo delos Santos, Ogie and one (1) alias "Cesar," could be found. Joel first pointed to the house of Ram (Rameses de Jesus), but they did not find him there; instead they found a man named Cesar Fortuna, whom Joel pointed to infront of said house. They immediately apprehended Fortuna and identified themselves. He informed Fortuna that he was being implicated by Joel in the killing of Col. Abadilla. Fortuna introduced himself as a policeman assigned with the Traffic Management Command (TMC). As a standard procedure, they informed Fortuna of his constitutional rights and then brought him to the CPDC for investigation. At the time, Fortuna had a gun (caliber .38) tucked in his waist, which they confiscated.43 P/Sr. Insp. Macanas further testified that in the course of their follow-up operations, with information being provided by Joel, they were also able to arrest another suspect alias "Larry,"

whom they met at a dark alley. Upon being pointed to by Joel, they apprehended Larry who was later identified as Lorenzo delos Santos, frisked him and found in his possession a cal .38 Smith and Wesson, for which he could not present any license or document. They brought Lorenzo to the CIDCPDC. He identified both Lorenzo and Fortuna inside the courtroom.44 On cross-examination, the witness admitted they had no warrant of arrest when they went to Fairview to locate the suspects, as it was a "hot person" case ordered by their superior and requiring the immediate arrest of suspects identified by witnesses like, in this case, Joel. Joel had admitted to the CID-CPDC investigators his participation in the Abadilla killing. After accosting Joel at Camaro St., whom they identified through a photograph, and before taking him to the CID-CPDC, he informed Joel that he was identified as one (1) of the suspects in the killing of Col. Abadilla; that he had a right to remain silent; that anything he will say could be used against him; he had the right to counsel of his own choice, and if he could not afford one, the government would provide him. As to Lorenzo, he was arrested past midnight of June 20, 1996; they had brought Joel along while moving to locate Lorenzo.45 He was just at the back of those operatives who actually arrested Lorenzo.46 The principal witness for the prosecution was Freddie Alejo, who testified that as a security guard employed by Provider Security Agency, he was then assigned at 211 Katipunan Avenue, Blue Ridge, Quezon City. On June 13, 1996, he reported for duty at 7:00 oclock in the morning. By 7:30 a.m., he noticed two (2) men walking back and forth infront of his post. He was shown by the prosecutor some photographs taken of the parking area he was then guarding, his guard post beside the building and the street infront of said building (Exhibits "G", "H", "I" and "J"47). Alejo recounted that there was a man riding in a black car who was shot by four (4) persons infront of the building he was guarding. The car was in the middle lane of the road, and the cars specific location was found in one (1) of the photographs (Exhibit "H-4"48). One (1) of the two (2) persons he earlier saw walking back and forth in front of him pointed a gun at him (the position of said man was marked as Exhibit "H-5"49). That man was holding a short gun and he told Alejo to come down ("Baba!"), but he did not budge. He then saw one (1) of the assailants (No. 1 in Exhibit "H"50), the one (1) standing on the left side of the car (left front door), grab the victim by the neck, get the clutch bag of the victim inside the car, pull said victim out of the car, and drop him on the road. He then heard another shot coming from said attacker (No. 1). Another man (No. 5 in Exhibit "H"51) shouted: "Dapawalang makikialam!" and the rest of the four (4) men (marked as Nos. 2, 3 and 4 in Exhibit "H"52) faced him (witness Alejo). Next, the companion of No. 5, who was earlier walking back and forth infront of him (marked as No. 6 in Exhibit "H"53), pointed a gun at him. This time, he did come down, lowering his body and bowing his head inside the guardhouse. The witness identified the suspects inside the courtroom as the persons he saw and marked as No. 5 (Joel de Jesus) the first one who pointed a gun at him shouting "Baba ka!"; No. 1 who grabbed the victim, got his clutch bag and pulled him out of the car (Lenido Lumanog); No. 2 (Rameses de Jesus); No. 6 the second person who pointed a gun at him (Lorenzo delos Santos); No. 4 (Augusto Santos) and No. 3 who was positioned at the right front door of the victims car (Cesar Fortuna). Nos. 1 and 3 (Lumanog and Fortuna) were the ones who shot the victim with short firearms, while No. 2 (Rameses) was just standing and facing the victim with a gun in his hand, and No. 4 (Augusto) was also just standing facing the driver and holding a short gun. It was probably less than a minute when the gunfire stopped, and he stood up at his guard post. The assailants were no longer in sight and he saw the cars window shattered. He identified the victims black car as shown in photographs (Exhibits "A-1" to "A-4"54).55 Alejo further testified that he was one (1) of those asked by the policemen who arrived regarding the incident. He was told to go to Station 8, which was just near the place. At Station 8, another

security guard of an adjacent building was also being investigated. Thereafter, the police officers brought him to Camp Karingal, along with the other security guard.56 On cross-examination, Alejo described his guard post as elevated; and two (2) arms length on the left and right side, there was an alley just beside the guard post which was at the corner.57 The victims car was infront of the building he was guarding, at a slightly slanted direction from it ("Lihis po ng konti"). His view was toward the direction of the front door of the car (rear end). From where he was at the time, the car was at a distance of more or less ten (10) meters. The first time one (1) of the suspects pointed a gun at him, he was not scared. He saw four (4) men standing around the victims car, two (2) on the left side, and two (2) on the right side. He saw only two (2) of them (the ones at the front left and right sides of the car) shooting at the car; they were carrying short firearms. One (1) of these two (2) got the clutch bag (at the left front side of the car), grabbed the victim by the neck and shot him once before dropping him down the road. Even if he could not see the gun when that assailant pulled the victim from the car, he knew that the victim was shot again, because he saw a gun smoke just beside the left side of the car where the victim was dropped. The second man who pointed a gun at him shouted "Dapa!" and thereupon his companions (the ones at the right rear side, left rear side, and front right side) faced him for less than a minute. Because at that precise moment the gun was not yet poked at him, he was able to recognize their faces. When finally the gun was pointed at him, he became nervous and bowed down his head inside the guard house. The color of the clutch bag taken from the victim was black. He could see the inside of the car from his guard post because the cars glass window was not tinted and, besides, his position was elevated or higher than the height of the car.58 He confirmed the contents of his Sinumpaang Salaysay (Exhibit "L") before policeman Edilberto Nicanor on June 13, 1996 taken at the CID-PNP, Camp Karingal at 1:55 p.m. or barely four (4) hours after the shooting incident.59 Alejo further testified on cross-examination that on June 19, 1996 at around 2:00 oclock in the afternoon, he was fetched by four (4) policemen at his agency in Monumento and they told him they were going to Fairview. Before this, in the afternoon of June 18, 1996, they showed him a picture of a man wearing eyeglasses, but he told them he would not point a man in photographs, but would like to see the man in person. That was the second time he saw Joel de Jesus since the shooting incident on June 13, 1996. He executed a supplemental statement on June 21, 1996 when he identified said suspect in a police line-up.60 On September 26, 1996, the trial court conducted an ocular inspection of the place where the shooting incident took place, in the presence of the prosecutors, defense counsel, Alejo and Maj. Villena. Alejo was asked to demonstrate his exact location, the relative positions of the assailants and the victims car, and the entire incident he had witnessed in the morning of June 13, 1996. The Presiding Judge who took the same position of Alejo in the guardhouse made the following observations: COURT: From this position, the Presiding Judge can see the car very clearly even if the car would be moved back by another segment of the cement or even if it is forwarded by another segment also, as segment can accommodate one car of the likes of Honda Accord and the Court observes that from the guard post the faces of the persons beside the car are very clear. xxx

COURT: The Court observed that from where the witness Alejo was he can still see the whole car as it has been moved back per the directive of Major Villena. xxx COURT: The Court adds that from the position of the witness, Freddie Alejo, the Court can still see faces behind the car which can accommodate another car. xxx COURT: The front right window has been rolled down and also the back right window of the car have been rolled down with the left front door opened, the Court can observed the two (2) front seats particularly the upper portion, meaning the head rest and the back rest, half of the back rest, all the head rest can be seen. xxx INTERPRETER: (measuring the distance from the guardhouse to the black car). The measurement from the foot of the guardpost up to the right front door of the black car is fifteen (15) meters. xxx INTERPRETER: (Measuring the distance between the bodega to the black car) The measurement from the front portion of the bodega (papaya) to the side of the black car is 11.8 meters. xxx INTERPRETER: The measurementthe distance from where suspect No. 6 was standing to the guard house when measured is 7.34 meters, your Honor. xxx

INTERPRETER: The distance from where suspect No. 5 was standing up to the guard house is 5.17 meters. xxx COURT: After the demonstration while witness Alejo was demonstrating how [suspect No. 2] got the clutch bag and how [suspect No. 2] grabbed the neck of the driver of the black car, the Judge was at the guard post and saw for himself that [Alejo] clearly saw the taking of the clutch bag even if the untinted windows were closed and the pulling of the driver of the black car.61 P/Insp. Castillo, on re-direct examination testified that Atty. Sansano actively assisted Joel de Jesus during the time the latters Sinumpaang Salaysay was being taken by SPO2 Garcia, Jr. There were questions propounded to Joel which Atty. Sansano had told Joel not to answer, and advice was given by said counsel. They left Quezon City Hall at about 5:00 oclock in the afternoon and returned to the CPDC headquarters. He maintained that all the accused were brought before the City Prosecutor for inquest proceedings prior to the filing of the information in court.62 Susan Samonte-Abadilla testified that their family incurred expenses for the burial of her husband, repair of the Honda Accord and loss of the .45 cal gold cup pistol and Omega watch during the shooting of her husband. She further testified that she was very shocked and saddened by the tragic death of her husband. Because she led a practically sheltered life, it was difficult for her, as it was the older children who were now taking care of their businesses, which were attended to by her husband when he was still alive. Three (3) of her eight (8) children were still studying (Ana, 14; Nico, 13; and BJ, 10), and one had just graduated last March 1997.63 Merlito Herbas, in his Karagdagang Salaysay dated June 21, 1996, identified Joel de Jesus in a police line-up at the CID-CPDC, Camp Karingal, as one (1) of those men who shot the victim on June 13, 1996.64 However, not having been presented by the prosecution as witness, he testified for the defense declaring that none of those whom he saw during the shooting incident was present inside the courtroom. He produced a list of amounts he had received from Mayor Abadilla, totaling P30,000.00 in support of his claim that Mayor Abadilla did not fulfill his promise to give him exactly the same salary he was receiving as security guard (P6,000.00 monthly only instead of the P8,000.00 he used to receive as monthly pay), although he admitted having stayed for free inside the Abadilla compound from July 11, 1996 up to November 26, 1996. He was later told that he would no longer be presented as witness because the testimony of Alejo would be sufficient.65 Defense Evidence All the accused raised the defense of alibi, highlighted the negative findings of ballistic and fingerprint examinations, and further alleged torture in the hands of police officers and denial of constitutional rights during custodial investigation. P/Insp. Reynaldo D. de Guzman, firearms examiner and Chief of the Firearms Division of the PNP Crime Laboratory, testified that he conducted an examination of the slug recovered from the body of Col. Abadilla, as per request of the CPDC for cross-matching with a bullet also recovered from the body of another shooting victim, Suseso de Dios, i.e., whether or not they were fired from one (1)

and the same firearm.66 The result of their microscopic examination was that the aforesaid bullets were fired from the same firearm.67 Dr. Jesse Rey Cruel, medico-legal officer of the CHR, testified that he examined accused Cesar Fortuna, Rameses de Jesus, Lenido Lumanog on June 25, 1996 and Lorenzo delos Santos on July 3, 1996. His findings showed that their bodies bore the following injuries: "(1) Fortuna - abrasions on forearm, elbow and knee; contusions on chest area; and incised wounds on the waist and legs68; (2) Rameses - contusions on chest, abdomen, knee and thigh areas69; (3) Lumanog - contusions on abdomen and lumbar region, and a horizontal lacerated wound on the forehead70; and (4) Lorenzo abrasions on the arms, contusions in thigh and knee, petechia marks (minute hemorrhages) between chest/abdomen and the penis, discoloration on right arm, and new scars on left arm, right foot and second toe."71 All said wounds required not more than nine (9) days of medical attendance. The defense also presented pictures taken at the time of the examination.72 On cross-examination, Dr. Cruel opined that it was possible the injuries could have been self-inflicted and pointed out that the injury on the forehead of Lumanog was not complained of.73 Remedios Dedicatoria, a fingerprint examiner at the PNP Crime Laboratory testified on the results stated in a Dactyloscopy Report No. F-086-96 comparison of the latent prints lifted from the Honda Accord with Plate No. RNA-777, Kia Pride PTZ-401 and Mitsubishi Lancer car with the standard fingerprints of the accused. The only match was found in the specimen fingerprint of Rameses de Jesus with respect to the fragmentary prints lifted from the Mitsubishi Lancer car. None of the fingerprints of the accused is identical with the latent prints lifted from the Honda Accord and Kia Pride.74 On cross-examination, the witness stated that if a person had touched the car and rubbed it, there would be no fingerprint that could be lifted therefrom. She also admitted that no latent print was taken from inside the Honda Accord nor was there any fingerprint taken of the late Rolando Abadilla (only two [2] fingerprints were taken from his car). When asked if a person opened the car holding only the back portion of the handle, the witness answered that there would likewise be no fingerprint on the outside of the car.75 Joel de Jesus testified that on June 19, 1996, at around 3:00 oclock in the afternoon, he was at their street corner fixing his tricycle and was with Arturo Napolitano and Felicisimo Herrera. A van stopped and six (6) armed men alighted from it, among whom he recognized Antonio Rodolfo, Pio Tarala and Dario Aasco (whom he came to know when they charged him with rape on January 17, 1994, from which charge he was acquitted on June 19, 1996). He even greeted said cops, but they forced him into the van, and handcuffed and blindfolded the three (3) of them. They were brought to a certain house where they were boxed, kicked and slammed on the wall. When his blindfold was removed, the police officers were forcing him to admit that he killed Abadilla. Capt. Rodolfo was also there and he later identified the rest of those who picked him up as Romulo Sales, Lt. Castillo, Bartolome Baluyot, Major Reyes and Catalua. After he denied having anything to do with the killing, PO2 Tarala tried to suffocate him with a plastic bag. He could not breathe and lost consciousness. Recounting his ordeal in tears, the witness said that for one (1) hour his captors repeatedly inserted a plastic bag and boxed him. A younger looking man then slapped him saying that they had ambushed his father. While detained, he was only given water to drink and not allowed to contact his relatives. He was asked to sign by Lt. Castillo a seven (7)-page document, torturing him if he refused to do so. There were already other signatures on the edge and every page of said document (Sinumpaang Salaysay dated June 20, 1996). He denied the contents of this statement but admitted that he was brought to the IBP Office, Quezon City Hall. After signing, he heard Lt. Castillo call somebody saying, "Parating na kami dyan." He was then made to board a vehicle and was taken to the Quezon City Hall where a man wearing barong tagalog was waiting,

asking if he was Joel de Jesus. When Lt. Castillo answered in the affirmative, the man just signed the document. He denied having met Atty. Confesor Sansano, nor was he told of his right to the assistance of counsel; he even told them the name of his lawyer at that time, but they just said, "Mas marunong ka pa sa amin."76 Testifying on cross-examination, Joel insisted that on June 13, 1996, he went home at around 10:00 oclock in the evening. He started plying his route at 6:00 oclock in the morning; he was hired (inarkila) by a passenger who asked him to bring her to an albularyo in Roosevelt Avenue, Novaliches. He admitted this was the first time he mentioned this, as it was not mentioned in his Affidavits77 which were prepared by the police. Atty. Lupino Lazaro assisted him in filing charges against the police officers and Atty. Hector Corpuz before the Department of Justice (DOJ). He admitted that he did not say anything about the illegality of his arrest and the torture he suffered prior to his arraignment.78 On re-direct examination, he denied having executed the Karagdagang Salaysay dated June 21, 1996 before the IBP lawyer, because at this time he was still detained in a safehouse where he remained until June 25, 1996. He was just forced to sign said document; after signing it, he heard Lt. Castillo say to one (1) Fiscal Soler, "Fiscal, salamat." Thereafter, he and the other accused were presented in a press conference as suspects in the Abadilla slaying inside Camp Crame. During this time, he pointed to Lorenzo delos Santos and Augusto Santos, because they were his enemies at their place. He only pointed to them out of fear that he might be salvaged by the police and because of the torture. He really did not know Abadilla nor was he at any time within the vicinity of Katipunan Avenue on June 13, 1996. He knew Rameses de Jesus, being his longtime neighbor, and also Lumanog who ran for councilor in their place. All he knows was that his coaccused were picked up from their place, and he saw them only during the press conference. He affirmed the contents of the Sinumpaang Salaysay he executed before Police Major (Pol. Maj.) Escote with the assistance of Atty. Lazaro.79 Joel admitted that he was the one (1) who pointed out Cesar Fortuna and Rameses de Jesus to the PARAC investigators. He confirmed that he was known as "Tabong" in their locality. He also filed a complaint before the CHR against the same police officers.80 Cesar Fortuna testified that he was a member of the PNP assigned at Cagayan de Oro City. He came to Manila on June 7, 1996, as he was ordered by his superior, Col. Roberto Sacramento, to attend to the documents required for reassignment of some of their companions (as evidenced by a used Super Ferry ticket and an unused return ticket for June 20, 1996). On June 11, 1996, he went to the PNP Directorate for Personnel at the office of Insp. Oscar Alcala. However, on the night of June 19, 1996, he was arrested by PARAC operatives while he was at the house of an acquaintance, Rameses de Jesus, in Ruby St., Fairview. He had brought for repair a Ford Maverick Model 69 registered in the name of Col. Sacramento. At 11:00 oclock in the evening, his mechanic road-tested the car, but since he was left alone, he decided to go to the house of Rameses which was near the shop. Several armed policemen arrived and entered the house of Rameses. Not finding Rameses there, they asked him instead to go along with them. He was made to board an owner-type jeep and immediately blindfolded. After one (1) hour, they arrived at a place which he was told was the office of PARAC. Somebody approached him and he felt a lighters flame touch his chin. He then identified himself as a policeman, but was only told: "Walang pulis pulis dito." They kept on asking him where Rameses could be found. Still blindfolded, he led them to Palmera Subdivision where he knew Rameses had another house. Upon reaching Palmera, his blindfold was removed, but he was unable to locate the house until they went home at 5:00 p.m. In the morning of June 20, 1996, the policemen told him that he was just confusing them (nililito), but he explained that he had been to that house only once. The driver of the Honda Civic was already angry at him and inserted a .45 cal pistol in his mouth.

They went back to the PARAC office, and he was interrogated about the Abadilla killing. He was informed that he was being implicated as somebody had pointed at him. When he still denied having any knowledge about the ambush-slay, he was repeatedly suffocated with a plastic bag placed on his head while he was handcuffed and blindfolded. After one (1) hour and due to hardship he suffered, he just told them he would admit whatever it was they wanted him to admit. He said that he acted as a look-out. They had him copy a prepared sketch and when his blindfold was finally removed, someone introduced himself as Col. Bartolome Baluyot who told him he just had to obey and he would not be hurt. Maj. George Reyes arrived, looked at the sketch and said it was not the place where Col. Abadilla was ambushed. He was blamed for that fiasco even as he said it was they who prepared the sketch. After an hour, they returned to Palmera Subdivision, Novaliches and this was already between 2:00 and 3:00 p.m. After rounding the area, he found the house, but Rameses was not there. He was made to sit the whole night in the kitchen.81 Fortuna continued to narrate that on June 21, 1996, he was made to lie down on a bench covered with a GI sheet and was asked where the firearm of Col. Abadilla was. When he answered that he really did not know about it, they electrocuted him and poured cold water on his body. He told them that if they needed a gun, he had a gun in Sampaloc, a .45 cal licensed firearm. Thereupon, they asked him to go to that place where Dante Montevirgen was the gunsmith. Only the policemen alighted from the vehicle and talked to Montevirgen. He saw that Montevirgen gave them two (2) firearms, after which they went back to the PARAC office. On his licensed firearm, he just brought this for repair on May 10, 1996, saying "ayaw mag-automatic," while the other gun belonged to Capt. Regis, and these were covered by receipts. Next, they asked him about the Rolex watch of Col. Abadilla. When he denied having any knowledge about it, he was again electrocuted. He had filed a complaint before the CHR for the injuries inflicted on him and the violation of his rights. Aside from this case and the charge of illegal possession of firearms, he was also charged with an administrative case and a criminal complaint for carnapping (of the KIA Pride). The carnapping complaint was dismissed by Assistant Prosecutor Amolin on September 23, 1996. The Decision issued by P/Sr. Supt. Rodolfo N. Caisip of the PNP Headquarters Traffic Management Group also dismissed Administrative Case No. 96-09-03. He insisted that on the morning of June 13, 1996, he was at Camp Crame following up the reassignment papers of his colleagues, showing the letterorder issued by Col. Sacramento. He saw PO3 Ramon Manzano at the Office of the Directorate for Personnel at about 9:00 oclock in the morning. He left said office as soon as he got the folder, signed their logbook, gave it to SPO4 Mercado of the Office of PNP Personnel Highway Patrol. Then he went home to eat before proceeding to the Metro Traffic Force, Central District at the office of Col. Juanito de Guzman at Roces St., Quezon City, at around 2:00 oclock in the afternoon, for the renewal of the license of Col. Sacramentos driver.82 He also filed with the CHR an administrative complaint against those police officers who had illegally arrested, detained and tortured him. Fortuna further testified that PARAC operatives seized his Kawasaki motorcycle which he had left inside Camp Crame because it had no fender. However, the certificate of registration was lost since it had been in custody of the police; the Land Transportation Office (LTO) registration paper was locked inside, and he forgot what its plate number was. He admitted that he was able to use said motorcycle in June 1996 even with the missing fender. He left the motorcycle at Gate 2, Camp Crame before leaving for Cagayan de Oro City; as to his car, he left it at Pier 2. He admitted that he was the same person charged with kidnapping and serious illegal detention with ransom in Criminal Case No. 96-312, which was filed on July 15, 1996 in Mabalacat, Pampanga against him, Lumanog and Rameses by a certain Dr. Jesusa dela Cruz. Said case was transferred to the Quezon City RTC in the same sala of the presiding judge in this case. The filing of this case destroyed his reputation as a police officer and affected his children, who stopped going to school. He admitted though that he had once been dishonorably discharged from the service as a result of an extortion

case filed against him. He had appealed his case and he was reinstated on August 20, 1983. A memorandum dated June 25, 1996 was issued by Col. Sacramento to attest to his moral character and loyalty to the service.83 He admitted that he never raised the issue of the legality of his arrest or the torture he suffered while in detention, during his arraignment. When confronted with his sworn statement submitted to the CHR, he admitted that he did not mention therein the pouring of cold water on his body, that he was asked to make a sketch of Katipunan Avenue, that a .45 cal pistol was inserted into his mouth and that there was no firearm confiscated from him at the time of his arrest. When he was apprehended on the night of June 19, 1996 at the house of Rameses at Ruby St., he was half-naked standing outside at the balcony. He saw someones hand, but not the whole body of that person to whom he was shown that night, and he just heard from the policemen he had been positively identified.84 Fortunas claim that he was at Camp Crame following up papers in the morning of June 13, 1996 was corroborated by Oscar Alcala (Chief Clerk of the Recruitment and Selection Division) and SPO2 Ramon Manzano (Office of the Directorate for Personnel and Recruitment). However, Alcala could not present the particular logbook containing the record of the documents and transaction with Fortuna, as it could not be located, as it got lost after the office renovation in the early part of 1997. A xerox copy of the logbook entry was presented in court (Exhibit "70").85However, said witness admitted he was not the custodian of the said logbook, and he did not have personal knowledge of the date and time of the entries in Exhibit "70"; it was also SPO2 Manzano who xeroxed the said logbook entry.86 Manzano confirmed that he personally saw Fortuna in the morning of June 13, 1996, between 9:00 and 9:30, when Fortuna retrieved the papers he earlier submitted in May 1996.87 On further cross-examination, Fortuna admitted that he never told his lawyer (Atty. Ramonito M. Delfin) when they brought his complaint before the CHR that he had documents to prove he was at Camp Crame in the morning of June 13, 1996. He explained that the matter did not enter his mind because he had no food and no sleep for several days: "At the time my salaysay was taken from me, everything was still fresh and there were so many things that I wanted to say but I was not able to say because masama pa ang aking pakiramdam." Neither did he mention it to Fiscal Refuerzo who interviewed him after the press conference, as they did not ask him about it.88He had brought up such matter with his lawyer in another case not before the sala of the presiding judge in this case.89 Lorenzo delos Santos testified that on June 13, 1996, he left his house at Fairview and boarded a bus bound for Quiapo. Upon reaching Quiapo, he heard mass in Quiapo Church until around 8:30 a.m. He arrived in their office at Binondo on June 13, 1996 at 9:30 a.m. He remembered going to the office of the Felipe Santos Brokerage in the same building to check on the date of arrival of a certain shipment. Thereafter, he went back to his office and stayed there until 2:30 p.m. He left his place of work about 4:30 in the afternoon and went to a client who invited him to drink at the house of his brother somewhere in Quezon City. On June 19, 1996, at around 11:00 olock in the evening, several persons suddenly barged into his house while he and his wife were sleeping. Sgt. Bela introduced himself, and he was slapped and handcuffed and the house was searched. They took his .38 cal revolver which was licensed. He was blindfolded, made to board a car and taken to a safehouse where he was tied and tortured (suffocation with plastic bag and electrocution). He was told that he was pointed to by Joel, but he explained to them that Joel was his opponent in a court case (for grave threats, physical injuries and trespassing).90 He also answered their questions regarding his co-accused. He told them that he used to see Rameses when he brings his children to school and came to know Lumanog when he ran as city councilor, while he did not know Fortuna. After the interrogation, he was again subjected to torture and he felt weak; this lasted up to June 21,

1996. On June 21, 1996, he was brought to a field (bukid) where he was forced to sign a paper. He was then brought to the Quezon City Hall of Justice at the second floor and instructed that he should just walk along. There were two (2) women inside aside from policemen, and he was elbowed by a policeman to sign a document. He signed it out of fear, and the document was handed by the policemen to a man who entered the room, whom he later came to know as Atty. Florimond Rous. He was brought to another floor at the Fiscals Office while he was still limping. Somebody there asked why he was in that condition, but one (1) of his police companions elbowed him so he just said it was nothing. A man who was probably the Fiscal signed the document, and they left at around 5:00 in the afternoon.91 Lorenzo admitted he had an owner-type jeep, which was registered in his own name, but said jeep had been mortgaged to Danilo Lintag since May 27, 1996.92 Lorenzo presented as witness Edith Lingan, an employee of Felipe M. Santos, who corroborated his alibi.93 Augusto Santos testified that on June 13, 1996 at around 7:00 oclock in the morning, he accompanied his brother-in-law Jonas Ayhon whose wife, his sister, gave birth on June 11, 1996 at the Jose Fabella Hospital at Sta. Cruz, Manila. He stayed there until 2:00 oclock in the afternoon. On June 26, 1996, five (5) men suddenly barged into their house. He was hit in the neck with a .45 cal. pistol, blindfolded and brought outside where he was beaten. They had no warrant of arrest but were forcing him to admit that Joel de Jesus gave him big money and that he knew what it was. He told them that he did not know anything, and that Joel was his enemy, as his Tito Lorenzo had a quarrel with Joel in which he helped his Tito. He confirmed the contents of the Sinumpaang Salaysay dated July 3, 1996 which he executed at Camp Crame, and also presented a copy of the birth certificate of the baby delivered by his sister at Fabella Hospital.94 Jonas Padel Ayhon corroborated the foregoing testimony of his brother-in-law, Augusto "Ogie" Santos, whose half-sister was his wife.95 Rameses de Jesus testified that on June 12, 1996 at 7:00 oclock in the evening, he and Lumanog left for Mabalacat, Pampanga on board the latters brand new Mitsubishi Lancer, together with Romeo Costibollo, Manny dela Rosa and Boni Mandaro. They arrived in Mabalacat at about 10:00 oclock in the evening and after resting they started digging infront of the church, inside the compound of the Tiglao family, Lumanogs in-laws. They dug until 4:00 oclock in the morning of June 13, 1996. Thereafter, they slept and woke up at around 10:00 oclock in the morning. They helped in the preparations for the celebration of the wedding anniversary of the Tiglaos. After eating lunch, they drank liquor. They returned to Manila only on June 14, 1996 at 7:00 p.m.. On June 19, 1996, they went back to Pampanga and returned to Manila on June 20, 1996. At around 10:00 p.m., they proceeded to Fairview, Quezon City to visit the sick child of Romeo Costibollo who was then confined at Fairview Polymedic Hospital. After Costibollo and Lumanog alighted from their car and while he was parking infront of the hospital, several armed men came. Two (2) men approached him from behind and asked him if Costibollo and Lumanog were his companions. When he replied yes, he was pushed inside the car; Costibollo and Lumanog were handcuffed. Without any warrant, they were apprehended, blindfolded and taken to a place where he was tortured. They were forcing him to admit that he and his companions killed "Kabise" who was the ex-governor of Ilocos Norte. Despite his denials they continued to torture him by electrocution and suffocation with a plastic bag. A policeman arrived with Fortuna, who was asked how much Ram gave them, to which Fortuna replied "P10,000.00." He got mad at Fortuna and cursed him for telling such a lie. After two (2) days, he was brought to Camp Karingal still blindfolded. He was again tortured for two (2) days, the policemen forcing him to admit he participated in the killing of Col. Abadilla. When he could no

longer bear the torture, he finally admitted to Insp. Castillo that he took part in the Abadilla ambush-slay. When the one (1) interviewing him asked how he did it, he just said that Fortuna came to his house with an owner-type jeep and two (2) other persons, and that they rode to Dau, Pampanga and headed to Tarlac, on their way to Ilocos to kill Abadilla. Insp. Castillo got angry, saying that he was just fooling them and he was again hit.96 Rameses continued to narrate that after two (2) or three (3) days stay at Camp Karingal, he and the other accused were presented at a press conference. During the inquest conducted by Fiscal Refuerzo, he saw Freddie Alejo for the first time, and also his co-accused Lumanog, Fortuna, Lorenzo, Joel and Augusto. As far as he knew, they had brought the matter of the torture they suffered in the hands of policemen to the DOJ.97 On cross-examination, Rameses was shown a medical certificate issued by Dr. Servillano B. Ritualo III at the PNP General Hospital, Camp Crame, but he said he could no longer remember the date he was examined by said doctor. He confirmed that Fortuna was renting a room in his house together with his mistress "Baby." When confronted with his Sinumpaang Salaysay dated June 26, 1996 he executed before the CHR, he admitted that there was no mention therein of their treasure-hunting trip to Pampanga on June 12 to 15, 1996. He said he was never asked about it. He likewise admitted that he was included in the kidnapping charge filed in Mabalacat, but asserted that it was trumpedup ("Ipinatong po sa akin yan ni Col. Baluyot").98 The Trial Courts Verdict On August 11, 1999, the trial court promulgated a Joint Decision dated July 30, 1999, the dispositive portion of which reads: ACCORDINGLY, judgment is hereby rendered as follows: xxx V. In Criminal Case No. Q-96-66684, for Murder,: 1. Accused Arturo Napolitano y Caburnay is hereby ACQUITTED; 2. Accused SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Leonardo Lumanog y Luistro (a.k.a. Leonido or Lenido), Joel de Jesus y Valdez, and Augusto Santos y Galang are hereby found GUILTY beyond reasonable doubt as co-principals of the crime of MURDER as defined and penalized in the Revised Penal Code for the death of ex-Col. Rolando Abadilla y Nolasco with the aggravating circumstances of treachery (absorbing abuse of superior strength) and evident premeditation and they are hereby sentenced to suffer the penalty of DEATH; 3. Accused Lorenzo delos Santos y dela Cruz is hereby ACQUITTED. On the civil aspect, accused SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Leonardo Lumanog y Luistron (a.k.a. Leonido or Lenido), Joel de Jesus y Valdez and Augusto Santos y Galang are hereby ordered jointly and solidarily to pay the heirs of the deceased ex-Col. Rolando Abadilla y Nolasco the following:

1. As actual damages, the sum of P294,058.86; 2. As indemnity damages, the sum of P50,000.00; 3. As moral damages, the sum of P500,000.00; 4. As exemplary damages, the sum of P500,000.00. The firearm, one (1) Smith & Wesson .38 caliber revolver with Serial No. 980974, subject of Case No. Q-96-66680 is hereby ordered returned to Lorenzo delos Santos y dela Cruz. The firearm, one (1) Amscor .38 caliber revolver with Serial No. 21907, subject of Case No. Q-9666683 is hereby ordered forwarded to the PNP Firearms and Explosives Division, Camp Crame, Quezon City for safekeeping in accordance with law and as said firearm belongs and is licensed to accused Leonardo Lumanog y Luistro (a.k.a. Leonido or Lenido) who has been sentenced in Case No. Q-96-66684 for Murder, until further orders from this court. Costs against the accused. Let the entire records of these cases be transmitted forthwith to the Honorable Supreme Court for automatic review, in accordance with law and the Rules of Court. SO ORDERED.99 The trial court was firmly convinced that the prosecution succeeded in establishing the identities of accused Joel, Rameses, Lumanog, Fortuna and Augusto as the perpetrators in the fatal shooting of Abadilla in the morning of June 13, 1996. It found that both security guards Alejo and Herbas confirmed the presence of Joel de Jesus in the crime scene. However, with respect to the positive identification of all the five (5) accused, namely, Joel de Jesus, Rameses de Jesus, Cesar Fortuna, Lenido Lumanog and Augusto Santos, the trial court gave more credence to the testimony of Alejo than the declaration on the witness stand of Herbas who had backtracked on his earlier statement dated June 21, 1996 wherein he pointed to Joel as one (1) of those participants in the shooting incident. In doubting the credibility of Herbas, the trial court stressed that Herbas was obviously disgruntled at the Abadilla familys failure to give him the promised salary, and circumstances showed that his need for job and money colored his perception and attitude in testifying for the defense. Moreover, despite the impression he had given to the police and the Abadilla family that he could identify the four (4) persons who surrounded Col. Abadillas car, Herbas could not have really been able to recognize the faces of the ambushers for three (3) reasons: (1) he was on the ground when he turned his head (lumingon) towards where the gunshots were being fired and quite a lot of vehicles in traffic stopped at the time; (2) the whole incident, as far as Herbas observed, happened in seconds only; and (3) Herbas was three (3) Meralco posts away from the ambush site. All these factors combined, according to the trial court, could not have given Herbas enough time and opportunity to clearly see those who ambushed Abadilla, and hence he was really a poor and inadequate witness either for the prosecution or the defense.100 Compared to Herbas, the trial court found the eyewitness testimony of Alejo more credible due to his elevated position at his guard post and the fact that the ambush had taken place before his very

eyes, so near that one (1) of the conspirators had to order him to lie flat (which obviously he could not do because of the narrow space inside his guard house), and which appeared to be the reason why a second order came for him to get down from the guard house, to which he nervously complied. From his vantage point, Alejo sufficiently and in a detailed manner recognized the relative positions and participations of the ambushers, each of whom he had identified as Rameses, Fortuna, Lumanog, Augusto and Joel, both in the police line-up and again inside the courtroom during the trial.101 The trial court also found that the statements of Joel, in which he admitted his participation in the crime assisted by Atty. Sansano and in the presence of the IBP personnel and police investigators, were not flawed by intimidation or violence when obtained and sworn to before the fiscal. The common defense of alibi put up by all the accused was rejected by the trial court, holding that (1) the alleged treasure-hunting trip made by Lumanog and Rameses was incredible and unpersuasive, as it was contrary to ordinary human experience; (2) Fortunas claim was weak, the logbook entry on his supposed transaction in the Office of the Directorate for Personnel and Recruitment at Camp Crame was a mere photocopy, and also, as in the case of Rameses, he never mentioned such digging activity in Pampanga in the sworn complaint he had filed before the CHR; (3) Augustos alibi was supported only by his brother-in-law, and it was simply not usual for menfolk, instead of women, in our family culture, to fetch a woman who had just given birth at the hospital, aside from the observation that Augusto could have gone straight to Fabella Hospital in Sta. Cruz, Manila instead of going first to Buendia, Makati before 7:00 a.m. to fetch his brother-in-law. With respect to Lumanog, the trial court pointed out that his silence and failure to testify in court, despite the evidence implicating him in the murder of Abadilla, justified an inference that he was not innocent.102 On August 25, 1999, Lumanog filed a motion for reconsideration.103 On September 2, 1999, Joel filed a motion for new trial based on newly discovered evidence to present two witnesses, Merevic S. Torrefranca and Rosemarie P. Caguioa, who offered to testify on the whereabouts of Joel on the day of the incident.104 Lumanog likewise filed a motion for new trial for the presentation of a new witness, who was allegedly on board a taxi immediately behind Abadillas car, and who clearly saw that those who perpetrated the gruesome crime were not the accused.105 In his Supplement to the Motion for Reconsideration, Lumanog assailed the inconsistencies in the declarations of Alejo, and the non-presentation of eyewitnesses Minella Alarcon and Metro Aide Aurora Urbano. In addition, Lumanog pointed to well-publicized statements of the Alex Boncayao Brigade (ABB), which claimed responsibility for the killing of Abadilla, but the investigation got sidetracked by another angle -that a political rival of Abadilla paid money for a contract assassination. He contended that the police opted for the path of least resistance by rounding up the usual suspects, indeed another glaring example of our law enforcers strategy of instituting trumped-up charges against innocent people just to comply with their superiors directive to accelerate solving an ambush-slay case.106 In additional pleadings filed by his new counsel, Lumanog reiterated the ABBs assassination theory in the light of more recent press statements issued by said group describing the accused as mere fall guys of the police to project an image of efficiency.107 On January 25, 2000, the trial court issued an Order ruling on the pending motions: WHEREFORE, premises considered, the court resolves: 1. to DENY the Motion for Reconsideration by accused Lenido Lumanog; 2. to DENY the Motion for New Trial by accused Joel de Jesus;

3. to consider the Motion for New Trial by accused Lenido Lumanog as abandoned and/or withdrawn; 4. to DENY the Supplement to the Motion for Reconsideration by accused Lenido Lumanog as well as his addendum thereto and his Manifestation and Motion dated December 15, 1999 to allow him to introduce additional evidence in support of his Supplement to the Motion for Reconsideration; 5. to DENY the Manifestation and Submission dated December 14, 1999 by accused Lenido Lumanog; 6. and to ORDER the immediate transmittal of the records of these cases to the Honorable Supreme Court for automatic review pursuant to law, the Rules of Court and the Joint Decision of this court dated July 30, 1999. SO ORDERED.108 On January 19, 2000, Fr. Roberto P. Reyes, parish priest of the Parish of the Holy Sacrifice, University of the Philippines at Diliman, Quezon City, assisted by Atty. Neri J. Colmenares, filed an "Urgent Independent Motion for Leave of Court to Present Vital Evidence." Fr. Reyes claimed that an ABB personality came to him confessing that the ABB was responsible for the killing of Abadilla and gave him an object (Omega gold wristwatch) taken from said victim, which can be presented as evidence in this case to prove the innocence of the accused who were erroneously convicted by the trial court and save them from the penalty of death.109 After due hearing, the trial court denied the said motion of Fr. Reyes, holding that the latters proposed testimony could not be considered an exception to the hearsay rule, considering that: (1) it cannot be said that the person who allegedly approached Fr. Reyes was unable to testify, as said person was simply unwilling to face in a court of law the legal consequences of whatever admissions he made to Fr. Reyes; (2) the alleged admission was made long after trial had ended and long after the court had promulgated its decision, at which time the public and persons interested in the outcome of the case knew already what were the courts findings and conclusions of fact; and (3) going by the advertised image of the ABB as an ideologically motivated group that would shoot to death public officers and private individuals perceived by its ranking cadres as corrupt, the court found it hard to believe that ABB gunman would in full view of idealist comrades and everybody else, would open Abadillas car and steal that watch, and remain unscathed for his unproletarian act by his peers in the organization.110 The trial court, however, ordered that the Omega wristwatch allegedly belonging to the late Col. Abadilla, the copy of the motion for leave to present vital evidence and the transcript of the proceedings on January 26, 2000 be attached to the records of the case as part of the offer of proof of the defense. Two (2) more pleadings were filed by Lumanogs counsel just before the records of Criminal Case No. Q-96-66684 were transmitted to this Court for automatic review, namely, a Final Submission to This Court dated February 8, 2000, together with an attached copy of the letter of Lt. Gen Jose M. Calimlim of the Armed Forces of the Philippines (AFP) Intelligence Service regarding an unsuccessful operation of the ABB to kill Col. Abadilla, and Final Manifestation to This Court dated February 9, 2000.111

Lumanog challenged before this Court the validity of the Orders dated January 25, 26, and 28, 2000 allegedly issued with grave abuse of discretion on the part of the trial judge who thereby denied the accused the opportunity to introduce evidence on the alleged role of the ABB in the ambush-slay of Col. Abadilla. On September 7, 2001, we denied his petition for certiorari in G.R. No. 142065,112 as we thus held: A perusal of the pieces of evidence, except the Omega wristwatch, which are sought to be presented by the petitioners in a new trial are not newly discovered evidence because they were either available and could have been presented by the defense during the trial of the case with the exercise of due diligence, such as the alleged newspaper reports and AFP/PNP intelligence materials on Col. Abadilla. The wristwatch allegedly belonging to the late Col. Abadilla is immaterial to the case of murder while the testimony of F. Roberto Reyes on the turn over of the said wristwatch by an alleged member of the ABB who purportedly knows certain facts about the killing of Col. Abadilla would be hearsay without the testimony in court of the said alleged member of the ABB. The document which granted amnesty to Wilfredo Batongbakal is irrelevant to the killing of Col. Abadilla inasmuch as Batongbakal does not appear privy to the actual commission of the crime of murder in the case at bar. If at all, those pieces of additional evidence will at most be merely corroborative to the defense of alibi and denial of herein petitioners. Petitioners alternative prayer that this Court "itself conduct hearings and receive evidence on the ABB angle" is not well taken for the reason that the Supreme Court is not a trier of facts.113 Accused-petitioners motion for reconsideration of the above decision was denied with finality on November 20, 2001.114 On September 17, 2002, this Court likewise denied for lack of merit the motion for new trial and related relief dated April 26, 2002 filed by counsel for said accusedpetitioner.115 Pursuant to our decision in People v. Mateo,116 this case was transferred to the Court of Appeals for intermediate review on January 18, 2005.117 Ruling of the CA On April 1, 2008, the CA rendered the assailed decision, thus: WHEREFORE, in the light of the foregoing, the impugned decision is AFFIRMED with the MODIFICATION that the accused-appellants are sentenced each to suffer reclusion perpetua without the benefit of parole. In all other respects, the lower courts decision is AFFIRMED. Costs against appellants. SO ORDERED.118 The CA upheld the conviction of the accused-appellants based on the credible eyewitness testimony of Alejo, who vividly recounted before the trial court their respective positions and participation in the fatal shooting of Abadilla, having been able to witness closely how they committed the crime. On the sufficiency of prosecution evidence to establish appellants guilt beyond reasonable doubt and the scant weight of their defense of alibi, as well as the allegations of torture and intimidation in the

hands of the police investigator and negative results of ballistic and fingerprint tests, the CA ruled as follows: Despite a lengthy and exhaustive cross-examination by the defense counsel, eyewitness Alejo stuck to the essentials of his story, including the identification of the persons who killed Col. Abadilla. He was only ten (10) meters away from the locus crimini. Standing on an elevated guardhouse, he had a close and unobstructed view of the whole incident. He was in a vantage position to clearly recognize Col. Abadillas assailants, more so because the crime happened in clear and broad daylight. Even standing alone, Alejos positive and unequivocal declaration is sufficient to support a conviction for murder against appellants. Indeed, the testimony of a single witness, when positive and credible, is sufficient to support a conviction even for murder. For there is no law requiring that the testimony of a simple [sic] witness should be corroborated for it to be accorded full faith and credit. The credible testimony of a lone witness(es) assumes more weight when there is no showing that he was actuated by improper motive to testify falsely against the accused, as in the case of Freddie Alejo. xxx appellants failed to prove that it was physically impossible for them to be at the locus delicti or within its immediate vicinity at the time the crime was committed. In the case of Joel de Jesus, he maintains that he was driving his tricycle on a special chartered trip for a passenger going to Roosevelt, Novalichez, Quezon City. But, it was not impossible for him to have also gone to Katipunan Avenue, which is also part of Quezon City; not to mention the fact that with his tricycle, he could have easily moved from one place to another. The testimonies of Rameses de Jesus and Leonido Lumanog that they were treasure hunting in Mabalacat, Pampanga on the day in question, lack credence as they are unsupported by the testimonies of independent witnesses. At any rate, Rameses de Jesus admitted that they were using the new car of Leonido Lumanog. Hence, it was not physically impossible for them to travel to Quezon City via the North Expressway at the time the crime took place. Augusto claims that he was at the Fabella Hospital in Sta. Cruz, Manila, and his alibi was corroborated by his brother-in-law, Jonas Padel Ayhon, who is not an impartial witness. Where nothing supports the alibi except the testimony of a relative, it deserves scant consideration. xxx Finally, Cesar Fortuna claims that he was in Camp Crame on the day the murder took place. But it was not impossible for him to have gone to Katipunan Road, Blue Ridge, which is relatively near Camp Crame when the shooting happened around 8:40 in the morning. After the shooting, he could have easily and quickly transferred to Camp Crame between 9:00 and 9:30 in the morning of the same day. In any event, appellants alibis were belied by the positive identification made by prosecution eyewitness Freddie Alejo.

xxx Further, appellants allegations that the police authorities maltreated them, and forcibly extracted their extra-judicial confessions do not exculpate them from criminal liability. For one, their conviction was not based on their extra-judicial confessions, but on their positive identification of Freddie Alejo as the authors of the crime. Such positive identification is totally independent of their extra-judicial confessions. For another, the Constitutional guarantees contained in the Bill of Rights cannot be used as a shield whereby a person guilty of a crime may escape punishment. Thus, the Supreme Court in Draculan vs. Donato, held: "x x x. Pangalawa, ang mga karapatan ng mga mamamayan na natatala sa Saligang Batas (sa Bill of Rights) ay hindi mga paraan upang ang isang tunay na may pagkakasala na labag sa batas, ay makaligtas sa nararapat na pagdurusa. Ang tunay na layunin ng mga tadhanang iyon ng Saligang Batas ay walang iba kundi tiyakin na sinumang nililitis ay magkaroon ng sapat na pagkakataon at paraan na maipagtanggol ang sarili, bukod sa pagbabawal ng pagtanggap ng katibayan (evidence) laban sa kanya na bunga ng pagpipilit, dahas at iba pang paraang labag sa kanyang kalooban." To repeat, assuming that appellants allegations of torture were true, the same do not exculpate them from liability for the crime which the People had adequately established by independent evidence, neither was their claim that the results of the ballistics test purportedly showing that the bullets and bullet shells found in the crime scene did not match with any of the firearms supposedly in their possession. But these ballistic results are inconclusive and can never prevail over appellants positive identification by eyewitness Freddie Alejo as the persons who perpetrated the ambush-slay of Col. Abadilla. Besides, there is no showing that the firearms supposedly found in appellants possession long after the incident were the same ones they used in the ambush-slay.119 In its Resolution120 dated October 28, 2008, the CA denied the motions for reconsideration respectively filed by Fortuna and Joel de Jesus.121 Rameses de Jesus and Joel de Jesus filed notices of appeal122 (G.R. No. 187745), while Fortuna (G.R. No. 185123), and Lumanog and Augusto Santos (G.R. No. 182555) filed their respective petitions for review. On August 6, 2009, G.R. No. 187745 was ordered consolidated with the already consolidated petitions in G.R. Nos. 182555 and 185123.123 In view of the judgment of the CA imposing the penalty of reclusion perpetua, said petitions for review are treated as appeals, in accordance with A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases)124 which provides under Rule 124 (c): (c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals. Appellants Arguments Lenido Lumanog and Augusto Santos set forth the following arguments in their memorandum, which basically reflect the same issues raised by appellants in the memorandum filed in G.R. No. 182555: 1. The Court of Appeals did not make a real and honest review of the appealed case. There was a failure of appellate review, rendering its decision void.

2. The affirmation of the conviction over-relies on the testimony of one alleged eyewitness, Freddie Alejo. 3. The affirmation of the conviction misappreciates the alibi evidence for the defense. 4. The affirmation of conviction gravely erred when it unduly disregarded other pieces of vital evidence. 5. The penalty imposed by the Court of Appeals is unconstitutional.125 On his part, Fortuna alleges that: I. The Honorable Court of Appeals committed serious error and gravely abused its discretion when it affirmed the conviction of the petitioner and his co-accused based solely on the incredible and contradicted eyewitness account of Security Guard (S/G) Alejo. II. The Honorable Court of Appeals seriously erred and gravely abused its discretion in not considering the defense of petitioner herein despite the weakness of the evidence of the prosecution. III. The Honorable Court seriously erred in favoring the prosecution on the ballistic test showing that the bullets and bullet shells found in the crime scene did not match with any firearms supposedly in petitioners possession; evidence which was supposed to support the theory of the prosecution. When such physical evidence did not favor the prosecutions theory the same was still taken against the petitioner. IV. The Honorable Court of Appeals seriously erred in disregarding allegations and proof of torture and maltreatment by police officers against the petitioner in affirming his conviction.126 Appellants assail the wholesale adoption, if not verbatim copying, by the CA of the factual narration, as well as the arguments for and disposition of the merits of the case from the Consolidated Brief for the Appellees, which in turn is based on the memorandum submitted by the private prosecutors to the trial court. This anomaly, according to the appellants, which was aggravated by the insufficient findings of fact and absence of actual discussion of the assignment of errors raised by each appellant before the CA, resulted in the failure of intermediate review without any independent findings and resolution of important issues of the case, thus rendering the CA decision void. Hence, appellants seek not just to overturn or reverse the CA decision but also to declare it null and void, by way of "radical relief" from this Court. On the merits, appellants principally contend that the CA gravely erred in its over-reliance on the problematic identification provided by the prosecutions lone eyewitness, security guard Alejo. The CA simply did not rule on questions concerning the credibility of said eyewitness through the "totality of circumstances" test. They also fault the CA for misappreciating their common defense of alibi, thus disregarding exculpatory documentary evidence including negative results of ballistic and fingerprint examinations, and evidence of torture which appellants had suffered in the hands of police investigators. Equally deplorable is the trial and appellate courts refusal to admit evidence coming from underground revolutionary forces, in particular the ABB which claimed responsibility for the killing of Col. Abadilla, a notorious military henchman during the martial law era. Appellants

maintain that violations of constitutional rights have been held as a ground for acquittal or dismissal in certain cases. In one (1) case, the long delay in the termination of preliminary investigation was found to be violative of the accuseds constitutional rights to procedural due process and speedy disposition of cases and was cause for the dismissal of the case by this Court as a matter of "radical relief." Finally, the appellants argue that the penalty of reclusion perpetua "without the benefit of parole" meted by the CA pursuant to Sec. 3 of R.A. No. 9346 is unconstitutional. Article III, Section 19 (1) of the 1987 Constitution provides that "any death penalty imposed shall be reduced to reclusion perpetua." There is no mention of "without the benefit of parole" or "shall not be eligible for parole" therein. Appellants contend that the questioned provisions of R.A. No. 9346 constitute encroachments or dilutions of the Presidents broad, if not near absolute, constitutional power of executive clemency, based not only on Article VII, Sec. 19, but also on constitutional tradition and jurisprudence. Although the said section does not explicitly mention "parole" as a form of executive clemency, constitutional tradition and jurisprudence indicate it to be such. In Tesoro v. Director of Prisons,127 for instance, it was held that the power to pardon given to the President by theConstitution includes the power to grant and revoke paroles. The aforesaid provision of R.A. No. 9346 also inflicts an inhuman punishment, which is prohibited by the Constitution, and also violates the equal protection clause of the Bill of Rights. Our Ruling Once again, this Court upholds the constitutional mandate protecting the rights of persons under custodial investigation. But while we strike down the extrajudicial confession extracted in violation of constitutionally enshrined rights and declare it inadmissible in evidence, appellants are not entitled to an acquittal because their conviction was not based on the evidence obtained during such custodial investigation. Even without the extrajudicial confession of appellant Joel de Jesus who was the first to have been arrested, the trial courts judgment is affirmed, as the testimonial and documentary evidence on record have established the guilt of appellants beyond reasonable doubt. CA Decision meets the constitutional standard The Constitution commands that "[n]o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based."128 Judges are expected to make complete findings of fact in their decisions and scrutinize closely the legal aspects of the case in the light of the evidence presented. They should avoid the tendency to generalize and form conclusions without detailing the facts from which such conclusions are deduced. 129 Section 2, Rule 120 of the 1985 Rules on Criminal Procedure, as amended, likewise provides: Sec. 2. Form and contents of judgments. -- The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon which the judgment is based. xxx xxx x x x [emphasis supplied.]

We have sustained decisions of lower courts as having substantially or sufficiently complied with the constitutional injunction, notwithstanding the laconic and terse manner in which they were written; and even if "there (was left) much to be desired in terms of (their) clarity, coherence and comprehensibility," provided that they eventually set out the facts and the law on which they were based, as when they stated the legal qualifications of the offense constituted by the facts proved, the modifying circumstances, the participation of the accused, the penalty imposed and the civil liability; or discussed the facts comprising the elements of the offense that was charged in the information, and accordingly rendered a verdict and imposed the corresponding penalty; or quoted the facts narrated in the prosecutions memorandum, but made their own findings and assessment of evidence, before finally agreeing with the prosecutions evaluation of the case.130 In the same vein, we have expressed concern over the possible denial of due process when an appellate court failed to provide the appeal the attention it rightfully deserved, thus depriving the appellant of a fair opportunity to be heard by a fair and responsible magistrate. This situation becomes more ominous in criminal cases, as in this case, where not only property rights are at stake but also the liberty if not the life of a human being.131 The parties to a litigation should be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the trial court. The losing party is entitled to know why he lost, so he may appeal to the higher court, if permitted, should he believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is precisely prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal.132 In Bank of the Philippine Islands v. Leobrera,133 we held that though it is not a good practice, we see nothing illegal in the act of the trial court completely copying the memorandum submitted by a party, provided that the decision clearly and distinctly states sufficient findings of fact and the law on which they are based.134 In another case where we upheld the validity of memorandum decisions, we nevertheless took occasion to remind judges that it is still desirable for an appellate judge to endeavor to make the issues clearer and use his own perceptiveness in unraveling the rollo and his own discernment in discovering the law. No less importantly, he must use his own language in laying down his judgment.135 Perusing the CA decision, we hold that it cannot be deemed constitutionally infirm, as it clearly stated the facts and law on which the ruling was based, and while it did not specifically address each and every assigned error raised by appellants, it cannot be said that the appellants were left in the dark as to how the CA reached its ruling affirming the trial courts judgment of conviction. The principal arguments raised in their Memorandum submitted before this Court actually referred to the main points of the CA rulings, such as the alleged sufficiency of prosecution evidence, their common defense of alibi, allegations of torture, probative value of ballistic and fingerprint test results, circumstances qualifying the offense and modification of penalty imposed by the trial court. What appellants essentially assail is the verbatim copying by the CA of not only the facts narrated, but also the arguments and discussion including the legal authorities, in disposing of the appeal. On such wholesale adoption of the Office of the Solicitor Generals position, as well as the trial courts insufficient findings of fact, appellants anchor their claim of failure of intermediate review by the CA. We now proceed to the other substantive issues presented by appellants.

Rights of Accused During Custodial Investigation The rights of persons under custodial investigation are enshrined in Article III, Section 12 of the 1987 Constitution, which provides: Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or section 17 hereof (right against self-incrimination) shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violation of this section as well as compensation for the rehabilitation of victims of tortures or similar practices, and their families. [emphasis supplied.] Extrajudicial Confession of Joel de Jesus Not Valid Custodial investigation refers to the critical pre-trial stage when the investigation is no longer a general inquiry into an unsolved crime, but has begun to focus on a particular person as a suspect.136 Police officers claimed that appellants were apprehended as a result of "hot pursuit" activities on the days following the ambush-slay of Abadilla. There is no question, however, that when appellants were arrested they were already considered suspects: Joel was pinpointed by security guard Alejo who went along with the PARAC squad to Fairview on June 19, 1996, while the rest of appellants were taken by the same operatives in follow-up operations after Joel provided them with the identities of his conspirators and where they could be found. R.A. No. 7438,137 approved on May 15, 1992, has reinforced the constitutional mandate protecting the rights of persons under custodial investigation. The pertinent provisions read: SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers. a. Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel. b. Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer private with the person arrested, detained or under custodial investigation. If such person cannot

afford the services of his own counsel, he must be provided by with a competent and independent counsel. xxxx f. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. [emphasis supplied.] Police officers claimed that upon arresting Joel, they informed him of his constitutional rights to remain silent, that any information he would give could be used against him, and that he had the right to a competent and independent counsel, preferably, of his own choice, and if he cannot afford the services of counsel he will be provided with one (1). However, since these rights can only be waived in writing and with the assistance of counsel, there could not have been such a valid waiver by Joel, who was presented to Atty. Sansano at the IBP Office, Quezon City Hall only the following day and stayed overnight at the police station before he was brought to said counsel. P/Insp. Castillo admitted that the initial questioning of Joel began in the morning of June 20, 1996, the first time said suspect was presented to him at the CPDC station, even before he was brought to the IBP Office for the taking of his formal statement. Thus, the possibility of appellant Joel having been subjected to intimidation or violence in the hands of police investigators as he claims, cannot be discounted. The constitutional requirement obviously had not been observed. Settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel.138 The purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make self-incriminating statements.139 Even assuming that custodial investigation started only during Joels execution of his statement before Atty. Sansano on June 20, 1996, still the said confession must be invalidated. To be acceptable, extrajudicial confessions must conform to constitutional requirements. A confession is not valid and not admissible in evidence when it is obtained in violation of any of the rights of persons under custodial investigation.140 Since Joel was provided with a lawyer secured by CPDC investigators from the IBP-Quezon City chapter, it cannot be said that his right to a counsel "preferably of his own choice" was not complied with, particularly as he never objected to Atty. Sansano when the latter was presented to him to be his counsel for the taking down of his statement. The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise the tempo of custodial investigation would be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest.141 Thus, while the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel or where the preferred lawyer is not available is naturally lodged in the police investigators, the suspect has the final choice, as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection

against the counsels appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer.142 The question really is whether or not Atty. Sansano was an independent and competent counsel as to satisfy the constitutional requirement. We held that the modifier competent and independent in the 1987 Constitution is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer.143An effective and vigilant counsel necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent.144 Atty. Sansano, who supposedly interviewed Joel and assisted the latter while responding to questions propounded by SPO2 Garcia, Jr., did not testify on whether he had properly discharged his duties to said client. While SPO2 Garcia, Jr. testified that Atty. Sansano had asked Joel if he understood his answers to the questions of the investigating officer and sometimes stopped Joel from answering certain questions, SPO2 Garcia, Jr. did not say if Atty. Sansano, in the first place, verified from them the date and time of Joels arrest and the circumstances thereof, or any previous information elicited from him by the investigators at the station, and if said counsel inspected Joels body for any sign or mark of physical torture. The right to counsel has been written into our Constitution in order to prevent the use of duress and other undue influence in extracting confessions from a suspect in a crime. The lawyers role cannot be reduced to being that of a mere witness to the signing of a pre-prepared confession, even if it indicated compliance with the constitutional rights of the accused. The accused is entitled to effective, vigilant and independent counsel.145 Where the prosecution failed to discharge the States burden of proving with clear and convincing evidence that the accused had enjoyed effective and vigilant counsel before he extrajudicially admitted his guilt, the extrajudicial confession cannot be given any probative value.146 With respect to the other appellants, they were likewise entitled to the rights guaranteed by the Constitution when they were brought to the police station as suspects and were, therefore under custodial investigation.147 However, they cannot simply rely on those violations of constitutional rights during custodial investigation, which are relevant only when the conviction of the accused by the trial court is based on the evidence obtained during such investigation.148 As for the matters stated in the extrajudicial confession of appellant Joel, these were not the basis for appellants conviction. It has to be stressed further that no confession or statement by appellants Fortuna, Lumanog, Augusto and Rameses was used as evidence by the prosecution at the trial. After a thorough and careful review, we hold that there exists sufficient evidence on record to sustain appellants conviction even without the extrajudicial confession of appellant Joel de Jesus. Allegations of Torture and Intimidation

The Court notes with utmost concern the serious allegations of torture of appellants who were dubbed by the media as the "Abadilla 5." This was brought by appellants before the CHR which, in its Resolution dated July 26, 1996, did not make any categorical finding of physical violence inflicted on the appellants by the police authorities. The CHR, however, found prima facie evidence that respondent police officers could have violated R.A. No. 7438, particularly on visitorial rights and the right to counsel, including the law on arbitrary detention, and accordingly forwarded its resolution together with records of the case to the Secretary of Justice, Secretary of the Department of Interior and Local Government, the PNP Director General and the Ombudsman to file the appropriate criminal and/or administrative actions against the person or persons responsible for violating the human rights of the suspects as the evidence may warrant.149 As per the manifestation of appellants, the DOJ, after conducting a preliminary investigation, referred the matter to the Ombudsman in 2004. As of July 2007, the case before the Ombudsman docketed as OMB-P-C-041269/CPL-C-04-1965 was "still pending preliminary investigation.150 Right to Speedy Disposition of Cases Appellants further cite the comment made by the United Nations Human Rights Committee in its Communication No. 1466/2006 that under the circumstances, there was, insofar as the eight (8)year delay in the disposition of their appeal in the CA was concerned, a violation of Article 14, paragraph 3 (c) of the International Covenant on Civil and Political Rights (1966). It provides that in the determination of any criminal charge against him, everyone shall be entitled, as among the minimum guarantees provided therein, "to be tried without undue delay."151 Section 16, Article III of the 1987 Constitution provides that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies."152 This protection extends to all citizens and covers the periods before, during and after trial, affording broader protection than Section 14(2), which guarantees merely the right to a speedy trial.153 However, just like the constitutional guarantee of "speedy trial," "speedy disposition of cases" is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays, which render rights nugatory.154 In this case, the records of Criminal Case No. Q-96-66684 were transmitted to this Court for automatic review on February 11, 2000. On September 7, 2001, this Court rendered a decision dismissing the Petition for Certiorari (Rule 65) and for Extraordinary Legal and Equitable Relief (G.R. No. 142065). By June 2004, all appeal briefs for the present review had been filed and on July 6, 2004, appellants filed a Consolidated Motion for Early Decision. On December 13, 2004, they filed a Motion for Early Decision.155 By resolution of January 18, 2005, we transferred this case to the CA for intermediate review, conformably with our pronouncement in People v. Mateo decided on July 7, 2004. Appellants Urgent Motion for Reconsideration of Transfer to the Court of Appeals filed on February 24, 2005 was denied on March 29, 2005. A similar request filed on June 2, 2005 was likewise denied by our Resolution dated July 12, 2005.156 At the CA, appellants also moved for early resolution of their appeal after the case was submitted for decision on November 29, 2006. The case remained unresolved due to a number of factors, such as the CA internal reorganization and inhibition of some Justices to whom the case was re-raffled.157 Before the retirement of the ponente, Justice Agustin S. Dizon, the CAs Sixteenth Division finally rendered its decision on April 1, 2008.

Appellants motion for reconsideration was denied by the Special Former Sixteenth Division on October 28, 2008. It must be stressed that in the determination of whether the right to speedy disposition of cases has been violated, particular regard must be taken of the facts and circumstances peculiar to each case. A mere mathematical reckoning of the time involved would not be sufficient.158 Under the circumstances, we hold that the delay of (4) four years during which the case remained pending with the CA and this Court was not unreasonable, arbitrary or oppressive. In several cases where it was manifest that due process of law or other rights guaranteed by the Constitution or statutes have been denied, this Court has not faltered to accord the so-called "radical relief" to keep accused from enduring the rigors and expense of a full-blown trial.159 In this case, however, appellants are not entitled to the same relief in the absence of clear and convincing showing that the delay in the resolution of their appeal was unreasonable or arbitrary. Credibility of Eyewitness Testimony Time and again, we have held that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court.160 Indeed, when it comes to credibility of witnesses, this Court accords the highest respect, even finality, to the evaluation made by the lower court of the testimonies of the witnesses presented before it. This holds true notwithstanding that it was another judge who presided at the trial and Judge Jaime N. Salazar, Jr. who penned the decision in this case heard only some witnesses for the defense. It is axiomatic that the fact alone that the judge who heard the evidence was not the one who rendered the judgment, but merely relied on the record of the case, does not render his judgment erroneous or irregular. This is so even if the judge did not have the fullest opportunity to weigh the testimonies, not having heard all the witnesses speak or observed their deportment and manner of testifying.161 Verily, a judge who was not present during the trial can rely on the transcript of stenographic notes taken during the trial as basis of his decision. Such reliance does not violate substantive and procedural due process.162 We have ruled in People v. Rayray163 that the fact that the judge who heard the evidence was not himself the one who prepared, signed and promulgated the decision constitutes no compelling reason to jettison his findings and conclusions, and does not per se render his decision void. The validity of a decision is not necessarily impaired by the fact that its ponente only took over from a colleague who had earlier presided at the trial. This circumstance alone cannot be the basis for the reversal of the trial courts decision.164 In giving full credence to the eyewitness testimony of security guard Alejo, the trial judge took into account his proximity to the spot where the shooting occurred, his elevated position from his guardhouse, his opportunity to view frontally all the perpetrators for a brief time -- enough for him to remember their faces (when the two [2] lookouts he had earlier noticed walking back and forth infront of his guard post pointed their guns at him one [1] after the other, and later when the four [4] armed men standing around the victims car momentarily looked at him as he was approached at the guardhouse by the second lookout), and his positive identification in the courtroom of appellants as the six (6) persons whom he saw acting together in the fatal shooting of Abadilla on June 13, 1996. The clear view that Alejo had at the time of the incident was verified by Judge Jose Catral Mendoza (now an Associate Justice of this Court) during the ocular inspection conducted in

the presence of the prosecutors, defense counsel, court personnel, and witnesses Alejo and Maj. Villena. The trial judge also found that Alejo did not waver in his detailed account of how the assailants shot Abadilla who was inside his car, the relative positions of the gunmen and lookouts, and his opportunity to look at them in the face. Alejo immediately gave his statement before the police authorities just hours after the incident took place. Appellants make much of a few inconsistencies in his statement and testimony, with respect to the number of assailants and his reaction when he was ordered to get down in his guard post. But such inconsistencies have already been explained by Alejo during cross-examination by correcting his earlier statement in using number four (4) to refer to those persons actually standing around the car and two (2) more persons as lookouts, and that he got nervous only when the second lookout shouted at him to get down, because the latter actually poked a gun at him. It is settled that affidavits, being ex-parte, are almost always incomplete and often inaccurate, but do not really detract from the credibility of witnesses.165 The discrepancies between a sworn statement and testimony in court do not outrightly justify the acquittal of an accused,166 as testimonial evidence carries more weight than an affidavit.167 As to appellants attempt to discredit Alejo by reason of the latters acceptance of benefits from the Abadilla family, the same is puerile, considering that the trial court even verified for itself how Alejo could have witnessed the shooting incident and after he withstood intense grilling from defense lawyers. Case law has it that where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.168 The trial judge also correctly rejected appellants proposition that the eyewitness testimony of security guard Herbas should have been given due weight and that other eyewitnesses should have been presented by the prosecution, specifically Cesar Espiritu and Minella Alarcon, who allegedly had better opportunity to recognize Abadillas attackers. As correctly pointed out by the trial judge, Herbas could not have really seen at close range the perpetrators from his position at a nearby building, which is several meters away from the ambush site, as confirmed by photographs submitted by the prosecution, which Herbas failed to refute. The same thing can be said of Espiritu who admitted in his Sinumpaang Salaysay that his car was ahead of the Honda Accord driven by Abadilla, and that he had already alighted from his car some houses away from the exact spot where Abadilla was ambushed while his car was in the stop position.169 Positive Identification of Appellants Appellants assail the out-of-court identification made by Alejo who pointed to appellant Joel de Jesus and Lorenzo delos Santos in a line-up at the police station together with police officers. However, appellants claim that the police officers who joined the line-up were actually in their police uniforms at the time, as to make the identification process suggestive and hence not valid, was unsubstantiated. In People v. Teehankee, Jr.,170 we explained the procedure for out-of-court identification and the test to determine the admissibility of such identification, thus: Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru

line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. . . In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure.171 [emphasis supplied.] Examining the records, we find nothing irregular in the identification made by Alejo at the police station for which he executed the Karagdagang Sinumpaang Salaysay dated June 21, 1996, during which he positively identified Joel de Jesus and Lorenzo delos Santos as those lookouts who had pointed their guns at him demanding that he buck down at his guardhouse. In any case, the trial court did not rely solely on said out-of-court identification considering that Alejo also positively identified appellants during the trial. Thus, even assuming arguendo that Alejos out-of-court identification was tainted with irregularity, his subsequent identification in court cured any flaw that may have attended it.172 We have held that the inadmissibility of a police line-up identification should not necessarily foreclose the admissibility of an independent in-court identification.173 We also found none of the danger signals enumerated by Patrick M. Wall, a well-known authority in eyewitness identification, which give warning that the identification may be erroneous even though the method used is proper. The danger signals contained in the list, which is not exhaustive, are: (1) the witness originally stated that he could not identify anyone; (2) the identifying witness knew the accused before the crime, but made no accusation against him when questioned by the police; (3) a serious discrepancy exists between the identifying witness original description and the actual description of the accused; (4) before identifying the accused at the trial, the witness erroneously identified some other person; (5) other witnesses to the crime fail to identify the accused; (6) before trial, the witness sees the accused but fails to identify him; (7) before the commission of the crime, the witness had limited opportunity to see the accused; (8) the witness and the person identified are of different racial groups; (9) during his original observation of the perpetrator of the crime, the witness was unaware that a crime was involved; (10) a considerable time elapsed between the witness view of the criminal and his identification of the accused;

(11) several persons committed the crime; and (12) the witness fails to make a positive trial identification.174 Appellants nonetheless point out the allegedly doubtful prior descriptions given by Alejo, who was able to describe the physical appearance of only two (2) suspects in his statement: Iyong tumutok sa akin ay naka-asul na t-shirt, edad 30-35, 55"-56" ang taas, katamtaman ang katawan, maikli ang buhok, kayumanggi. Ang baril niya ay tipong 45 o 9 mm na pistola. Iyong sumakal sa biktima at nang-agaw ng clutch bag nito ay 25-30 ang edad, payat, mahaba ang buhok na nakatali, maitim, may taas na 55"-56", maiksi din ang baril niya at naka-puting polo. Iyong iba ay maaring makilala ko kung makikita ko uli.175 Appellants claimed that if Alejo was referring to appellant Joel de Jesus who pointed a gun at him, his description did not jibe at all since Joel de Jesus was just 22 years old and not 30-35 years of age, and who stands 59" and not 55"-56". And if indeed it was appellant Lenido Lumanog whom Alejo saw as the gunman who had grabbed the victim by the neck after opening the cars left front door, his description again failed because far from being "maitim," Lumanog was in fact faircomplexioned. We are not persuaded. Alejo positively identified Joel de Jesus in a line-up at the police station and again inside the courtroom as the first lookout who pointed a gun at him. Though his estimate of Joels age was not precise, it was not that far from his true age, especially if we consider that being a tricycle driver who was exposed daily to sunlight, Joels looks may give a first impression that he is older than his actual age. Moreover Alejos description of Lumanog as dark-skinned was made two (2) months prior to the dates of the trial when he was again asked to identify him in court. When defense counsel posed the question of the discrepancy in Alejos description of Lumanog who was then presented as having a fair complexion and was 40 years old, the private prosecutor manifested the possible effect of Lumanogs incarceration for such length of time as to make his appearance different at the time of trial. Applying the totality-of-circumstances test, we thus reiterate that Alejos out-court-identification is reliable, for reasons that, first, he was very near the place where Abadilla was shot and thus had a good view of the gunmen, not to mention that the two (2) lookouts directly approached him and pointed their guns at them; second, no competing event took place to draw his attention from the event; third, Alejo immediately gave his descriptions of at least two (2) of the perpetrators, while affirming he could possibly identify the others if he would see them again, and the entire happening that he witnessed; and finally, there was no evidence that the police had supplied or even suggested to Alejo that appellants were the suspects, except for Joel de Jesus whom he refused to just pinpoint on the basis of a photograph shown to him by the police officers, insisting that he would like to see said suspect in person. More importantly, Alejo during the trial had positively identified appellant Joel de Jesus independently of the previous identification made at the police station. Such in-court identification was positive, straightforward and categorical. Appellants contend that the subsequent acquittal of Lorenzo delos Santos, whom Alejo had categorically pointed to as one (1) of the two (2) men whom he saw walking to and fro infront of his guard post prior to the shooting incident, and as one (1) of the two (2) men who pointed a gun at him and ordered him to get down, totally destroyed said witness credibility and eroded the trustworthiness of each and every uncorroborated testimony he gave in court. This assertion is

untenable. A verdict of acquittal is immediately final; hence, we may no longer review the acquittal of accused Lorenzo delos Santos.176 However, the acquittal of their co-accused does not necessarily benefit the appellants. We have ruled that accused-appellant may not invoke the acquittal of the other conspirators to merit the reversal of his conviction for murder.177 Ballistic and fingerprint examination results are inconclusive and not indispensable Appellants deplore the trial courts disregard of the results of the ballistic and fingerprint tests, which they claim should exonerate them from liability for the killing of Abadilla. These pieces of evidence were presented by the defense to prove that the empty shells recovered from the crime scene and deformed slug taken from the body of Abadilla were not fired from any of the firearms seized from appellants. Instead, they matched the same firearm used in the killings of Suseso de Dios and other supposed victims of ambush-slay perpetrated by suspected members of the ABB. Further, none of the fingerprints lifted from the KIA Pride, used by the gunmen as getaway vehicle, matched any of the specimens taken from the appellants. We are not persuaded. As correctly held by the CA, the negative result of ballistic examination was inconclusive, for there is no showing that the firearms supposedly found in appellants possession were the same ones used in the ambush-slay of Abadilla. The fact that ballistic examination revealed that the empty shells and slug were fired from another firearm does not disprove appellants guilt, as it was possible that different firearms were used by them in shooting Abadilla.178 Neither will the finding that the empty shells and slug matched those in another criminal case allegedly involving ABB members, such that they could have been fired from the same firearms belonging to said rebel group, exonerate the appellants who are on trial in this case and not the suspects in another case. To begin with, the prosecution never claimed that the firearms confiscated from appellants, which were the subject of separate charges for illegal possession of firearms, were the same firearms used in the ambush-slay of Abadilla. A ballistic examination is not indispensable in this case. Even if another weapon was in fact actually used in killing the victim, still, appellants Fortuna and Lumanog cannot escape criminal liability therefor, as they were positively identified by eyewitness Freddie Alejo as the ones who shot Abadilla to death.179 As this Court held in Velasco v. People180 -As regards the failure of the police to present a ballistic report on the seven spent shells recovered from the crime scene, the same does not constitute suppression of evidence. A ballistic report serves only as a guide for the courts in considering the ultimate facts of the case. It would be indispensable if there are no credible eyewitnesses to the crime inasmuch as it is corroborative in nature. The presentation of weapons or the slugs and bullets used and ballistic examination are not prerequisites for conviction. The corpus delicti and the positive identification of accused-appellant as the perpetrator of the crime are more than enough to sustain his conviction. Even without a ballistic report, the positive identification by prosecution witnesses is more than sufficient to prove accuseds guilt beyond reasonable doubt. In the instant case, since the identity of the assailant has been sufficiently established, a ballistic report on the slugs can be dispensed with in proving petitioners guilt beyond reasonable doubt. [emphasis supplied.] The negative result of the fingerprint tests conducted by fingerprint examiner Remedios is likewise inconclusive and unreliable. Said witness admitted that no prints had been lifted from inside the KIA Pride and only two (2) fingerprints were taken from the car of Abadilla.

Defense of Alibi Cannot Prevail Over Positive Identification Alibi is the weakest of all defenses, for it is easy to fabricate and difficult to disprove, and it is for this reason that it cannot prevail over the positive identification of the accused by the witnesses.181 To be valid for purposes of exoneration from a criminal charge, the defense of alibi must be such that it would have been physically impossible for the person charged with the crime to be at the locus criminis at the time of its commission, the reason being that no person can be in two places at the same time. The excuse must be so airtight that it would admit of no exception. Where there is the least possibility of accuseds presence at the crime scene, the alibi will not hold water.182 Deeply embedded in our jurisprudence is the rule that positive identification of the accused, where categorical and consistent, without any showing of ill motive on the part of the eyewitness testifying, should prevail over the alibi and denial of appellants, whose testimonies are not substantiated by clear and convincing evidence.183 However, none of the appellants presented clear and convincing excuses showing the physical impossibility of their being at the crime scene between 8:00 oclock and 9:00 oclock in the morning of June 13, 1996. Hence, the trial court and CA did not err in rejecting their common defense of alibi. As to the failure of appellant Lumanog to take the witness stand, indeed the grave charges of murder and illegal possession of firearms would have normally impelled an accused to testify in his defense, particularly when his life is at stake. As this Court observed in People v. Delmendo:184 An adverse inference may also be deduced from appellant's failure to take the witness stand. While his failure to testify cannot be considered against him, it may however help in determining his guilt. "The unexplained failure of the accused to testify, under a circumstance where the crime imputed to him is so serious that places in the balance his very life and that his testimony might at least help in advancing his defense, gives rise to an inference that he did not want to testify because he did not want to betray himself." An innocent person will at once naturally and emphatically repel an accusation of crime, as a matter of self-preservation, and as a precaution against prejudicing himself. A persons silence, therefore, particularly when it is persistent, may justify an inference that he is not innocent. Thus, we have the general principle that when an accused is silent when he should speak, in circumstances where an innocent person so situated would have spoken, on being accused of a crime, his silence and omission are admissible in evidence against him. Accordingly, it has been aptly said that silence may be assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a quasi-confession.185 Treachery and Evident Premeditation Attended the Commission of the Crime As regards the presence of treachery as a qualifying circumstance, the evidence clearly showed that the attack on the unsuspecting victim -- who was inside his car on a stop position in the middle of early morning traffic when he was suddenly fired upon by the appellants -- was deliberate, sudden and unexpected. There was simply no chance for Abadilla to survive the ambush-slay, with successive shots quickly fired at close range by two (2) armed men on both sides of his car; and much less to retaliate by using his own gun, as no less than 23 gunshot wounds on his head and

chest caused his instantaneous death. As we have consistently ruled, the essence of treachery is the sudden and unexpected attack on an unsuspecting victim by the perpetrator of the crime, depriving the victim of any chance to defend himself or to repel the aggression, thus insuring its commission without risk to the aggressor and without any provocation on the part of the victim.186 Evident premeditation was likewise properly appreciated by the trial court, notwithstanding the inadmissibility of Joel de Jesuss extrajudicial confession disclosing in detail the pre-planned ambush of Abadilla, apparently a contract killing in which the perpetrators were paid or expected to receive payment for the job. As correctly pointed out by the CA, Alejo had stressed that as early as 7:30 in the morning of June 13, 1996, he already noticed something unusual going on upon seeing the two (2) lookouts (appellants Joel de Jesus and Lorenzo delos Santos) walking to and fro along Katipunan Avenue infront of the building he was guarding. True enough, they were expecting somebody to pass that way, who was no other than Abadilla driving his Honda Accord. After the lapse of more or less one (1) hour, he already heard successive gunshots, while in his guard post, from the direction of the middle lane where Abadillas car was surrounded by four (4) men carrying short firearms. All the foregoing disclosed the execution of a pre-conceived plan to kill Abadilla. The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out criminal intent within a span of time sufficient to arrive at a calm judgment.187 The trial court and CA were therefore correct in declaring the appellants guilty as conspirators in the ambush-slay of Abadilla, the presence of treachery and evident premeditation qualifying the killing to murder under Art. 248 of the Revised Penal Code, as amended. Proper Penalty The CA correctly modified the death penalty imposed by the trial court. At the time the crime was committed, the penalty for murder was reclusion perpetua to death. Since the penalty is composed of two (2) indivisible penalties, then for the purpose of determining the imposable penalty, Article 63 of the Revised Penal Code, as amended, must be considered. It provides in part: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. With the presence of the aggravating circumstance of treachery and there being no mitigating circumstance, the higher penalty of death should be imposed.188 In view, however, of the passage of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," which was signed into law on June 24, 2006, the imposition of the death penalty has been prohibited. Pursuant to Section 2 thereof, the penalty to be meted to appellants shall be reclusion perpetua. Said section reads: SECTION 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.

Notwithstanding the reduction of the penalty imposed on appellants, they are not eligible for parole following Section 3 of said law which provides:189 SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. Appellants attack on the constitutionality of the above provision on grounds of curtailment of the Presidents absolute power to grant executive clemency, imposition of an inhuman punishment and violation of equal protection clause, is utterly misplaced. As succinctly explained by this Court in People v. Gardon190 We should point out that the benefit of parole cannot be extended to Gardon even if he committed the crimes for which he is now convicted prior to the effectivity of R.A. No. 9346. Sec. 2 of the Indeterminate Sentence Law provides that the law "shall not apply to persons convicted of offenses punished with death penalty or life- imprisonment." Although the law makes no reference to persons convicted to suffer the penalty of reclusion perpetua such as Gardon, the Court has consistently held that the Indeterminate Sentence Law likewise does not apply to persons sentenced to reclusion perpetua. In People v. Enriquez, we declared: [R]eclusion perpetua is the only penalty that can be imposed against the appellants. As correctly argued by the Solicitor General, Act No. 4103, otherwise known as the Indeterminate Sentence Law, cannot be applied in the case of appellants considering the proscription in Sec. 2 thereof, viz: xxxx Indeed, in People v. Asturias, Serrano v. Court of Appeals, People v. Lampaza and People v. Tan, to name a few cases, we in effect equated the penalty of reclusion perpetua as synonymous to lifeimprisonment for purposes of the Indeterminate Sentence Law, and ruled that the latter law does not apply to persons convicted of offenses punishable with the said penalty. Consequently, we affirm the Court of Appeals in not applying the Indeterminate Sentence Law, and in imposing upon appellants the penalty of reclusion perpetua instead. Reclusion perpetua is an indivisible penalty without a minimum or maximum period. Parole, on the other hand, is extended only to those sentenced to divisible penalties as is evident from Sec. 5 of the Indeterminate Sentence Law, which provides that it is only after "any prisoner shall have served the minimum penalty imposed on him" that the Board of Indeterminate Sentence may consider whether such prisoner may be granted parole.191 Further, we cite the concurring opinion of Mr. Justice Dante Tinga in People v. Tubongbanua,192 addressing the issue herein raised by appellants, to wit: No constitutional sanctities will be offended if persons previously sentenced to death, or persons sentenced to reclusion perpetua, are denied the benefit of parole conformably to Section 3 of Rep. Act No. 9346. As to persons previously sentenced to death, it should be remembered that at the time of the commission of the crime, the penalty attached to the crime was death. To their benefit, Rep. Act No. 9346 reduced the penalty attached to the crime to reclusion perpetua. Yet such persons cannot claim the benefit of parole on the basis of the ex post facto clause of the

Constitution, since an ex post facto law is one which, among others, "changes punishment, and inflicts a greater punishment than the law annexed to the crime when committed." Rep. Act No. 9346 had the effect of "inflicting" a lighter punishment, not a greater punishment, than what the law annexed to the crime when committed.193 [emphasis supplied.] Civil Liability When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.194 Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime.195 We have ruled that even if the penalty of death is not to be imposed because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is proper, because it is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense.196 As explained in People v. Salome,197 while R.A. No. 9346 prohibits the imposition of the death penalty, the fact remains that the penalty provided for by the law for a heinous offense is still death, and the offense is still heinous. Accordingly, the heirs of Col. Rolando N. Abadilla is entitled to civil indemnity in the amount of P75,000.00. The grant of actual damages representing burial expenses, funeral services and cost of repair of the Honda car, is likewise in order, being duly supported by receipts.198 With regard to moral and exemplary damages, we find the amounts awarded by the trial court excessive and the same are hereby reduced to P75,000.00 and P30,000.00, respectively. It must again be stressed that moral damages are emphatically not intended to enrich a plaintiff at the expense of the defendant. When awarded, moral damages must not be palpably and scandalously excessive as to indicate that it was the result of passion, prejudice or corruption on the part of the trial judge or appellate court justices.199 As to exemplary damages, the same is justified under Article 2230 of the New Civil Code when a crime is committed with an aggravating circumstance, either qualifying or generic.200 WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED. The Decision dated April 1, 2008 of the Court of Appeals in CA-G.R. CR-HC No. 00667 is hereby AFFIRMED with MODIFICATIONS in that the civil indemnity for the death of Col. Rolando N. Abadilla is hereby increased to P75,000.00, and the amounts of moral and exemplary damages awarded to his heirs are reduced to P75,000.00 and P30,000.00, respectively. With costs against the accused-appellants. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 187689 September 7, 2010

CLARITA J. CARBONEL, Petitioner, vs. CIVIL SERVICE COMMISSION, Respondent. DECISION NACHURA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the Court of Appeals (CA) Decision1 dated November 24, 2008 and Resolution2 dated April 29, 2009 in CA-G.R. SP No. 101599. Petitioner Clarita J. Carbonel was an employee of the Bureau of Jail Management and Penology, Makati City. She was formally charged with Dishonesty, Grave Misconduct, and Falsification of Official Documents by the Civil Service Commission Regional Office No. IV (CSCRO IV). The Civil Service Commission (CSC), as affirmed by the CA, established the following facts: On May 21, 1999, petitioner went to the CSCRO IV to secure a copy of the result of the Computer Assisted Test (CATS) Career Service Professional Examination given on March 14, 1999, because she lost the original copy of her Career Service Professional Certificate of Rating (hereafter referred to as certificate of rating).3 Petitioner was directed to accomplish a verification slip. The Examination Placement and Service Division noticed that petitioners personal and physical appearance was entirely different from the picture of the examinee attached to the application form and the picture seat plan. It was also discovered that the signature affixed on the application form was different from that appearing on the verification slip.4 Because of these discrepancies, the Legal Affairs Division of the CSCRO IV conducted an investigation. In the course of the investigation, petitioner voluntarily made a statement5 before Atty. Rosalinda S.M. Gepigon, admitting that, sometime in March 1999, she accepted the proposal of a certain Bettina J. Navarro (Navarro) for the latter to obtain for petitioner a Career Service Professional Eligibility by merely accomplishing an application form and paying the amount of P10,000.00. Petitioner thus accomplished an application form to take the CATS Career Service Professional Examination and gave Navarro P5,000.00 as down payment. Upon receipt of the original copy of the certificate of rating from Navarro, petitioner gave the latter the remaining P5,000.00. Petitioner, however, misplaced the certificate of rating. This prompted her to secure another copy from the CSCRO IV. Hence, the formal charge against petitioner. Denying her admissions in her voluntary statement before the CSCRO IV, petitioner, in her Answer,6 traversed the charges against her. She explained that after filling up the application form for the civil service examination, she asked Navarro to submit the same to the CSC. She, however, admitted that she failed to take the examination as she had to attend to her ailing mother. Thus, when she received a certificate of eligibility despite her failure to take the test, she was anxious to know the mystery behind it. She claimed that she went to the CSCRO IV not to get a copy of the certificate of rating but to check the veracity of the certificate. More importantly, she questioned the use of her voluntary statement as the basis of the formal charge against her inasmuch as the same was made without the assistance of counsel.

After the formal investigation, the CSCRO IV rendered its March 25, 2002 Decision No. 0200797 finding petitioner guilty of dishonesty, grave misconduct, and falsification of official documents. The penalty of dismissal from the service, with all its accessory penalties, was imposed on her. Petitioners motion for reconsideration was denied by CSCRO IV on November 14, 2003.8 Petitioner appealed, but the CSC dismissed9 the same for having been filed almost three years from receipt of the CSCRO IV decision. The CSC did not give credence to petitioners explanation that she failed to timely appeal the case because of the death of her counsel. The CSC opined that notwithstanding the death of one lawyer, the other members of the law firm, petitioners counsel of record, could have timely appealed the decision.10Petitioners motion for reconsideration was denied in Resolution No. 07204911 dated November 5, 2007. Unsatisfied, petitioner elevated the matter to the CA. On November 24, 2008, the CA rendered the assailed decision affirming the decisions and resolutions of the CSCRO IV and the CSC. Petitioners motion for reconsideration was denied by the CA on April 29, 2009. Hence, the instant petition based on the following grounds: I SERIOUS ERROR OF FACT AND LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY THE COURT OF APPEALS IN ITS ASSAILED DECISION DATED NOVEMBER 24, 2008 BECAUSE PETITIONERS FINDING OF GUILT WAS GROUNDED ENTIRELY ON HER UNSWORN STATEMENT THAT SHE ADMITTED THE OFFENSES CHARGED AND WITHOUT THE ASSISTANCE OF A COUNSEL. II THE CONCLUSION AND FINDING OF THE COURT OF APPEALS IN ITS ASSAILED DECISION THAT PETITIONERS APPEAL WAS LOST THRU HER OWN FAULT OR NEGLIGENCE WAS PREMISED ON MISAPPREHENSION OF FACTS. III THE COURT OF APPEALS IN ITS ASSAILED DECISION HAS DECIDED THE CASE NOT IN ACCORD WITH THE DECISIONS OF THIS HONORABLE COURT.12 The petition is without merit. It is undisputed that petitioner appealed the CSCRO IVs decision almost three years from receipt thereof. Undoubtedly, the appeal was filed way beyond the reglementary period when the decision had long become final and executory. As held in Bacsasar v. Civil Service Commission,13 citing Talento v. Escalada, Jr.14 The perfection of an appeal in the manner and within the period prescribed by law is mandatory. Failure to conform to the rules regarding appeal will render the judgment final and executory and beyond the power of the Courts review. Jurisprudence mandates that when a decision becomes final and executory, it becomes valid and binding upon the parties and their successors-in-interest.

Such decision or order can no loner be disturbed or re-opened no matter how erroneous it may have been. This notwithstanding, on petition before the CA, the appellate court reviewed the case and disposed of it on the merits, not on pure technicality. To accentuate the abject poverty of petitioners arguments, we discuss hereunder the issues she raised. Petitioner faults the CSCs finding because it was based solely on her uncounselled admission taken during the investigation by the CSCRO IV. She claims that her right to due process was violated because she was not afforded the right to counsel when her statement was taken. It is true that the CSCRO IV, the CSC, and the CA gave credence to petitioners uncounselled statements and, partly on the basis thereof, uniformly found petitioner liable for the charge of dishonesty, grave misconduct, and falsification of official document.151avvphi1 However, it must be remembered that the right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect during custodial investigation.16 Thus, the exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation.17 While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that, under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of petitioners capacity to represent herself, and no duty rests on such body to furnish the person being investigated with counsel.18 The right to counsel is not always imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit the imposition of disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service.19 As such, the admissions made by petitioner during the investigation may be used as evidence to justify her dismissal.20 We have carefully scrutinized the records of the case below and we find no compelling reason to deviate from the findings of the CSC and the CA. The written admission of petitioner is replete with details that could have been known only to her.21 Besides, petitioners written statement was not the only basis of her dismissal from the service. Records show that the CSCRO IVs conclusion was reached after consideration of all the documentary and testimonial evidence submitted by the parties during the formal investigation. Now, on petitioners liability and penalty. It has been established that petitioner accepted Navarros proposal for the latter to obtain for petitioner a Career Service Professional Eligibility by merely accomplishing an application form and in consideration of the amount ofP10,000.00. Petitioner thus accomplished an application form to take the CATS Career Service Professional Examination and gave Navarro P5,000.00 as down payment. Upon receipt of the original copy of the certificate of rating from Navarro, petitioner gave the latter the remaining P5,000.00. Petitioner, however, misplaced the certificate of rating that prompted her to secure another copy from the CSCRO IV. The CSCRO IV noticed that petitioners personal and physical appearance was entirely different from the picture of the examinee attached

to the application form and the picture seat plan. It was also discovered that the signature affixed on the same application form was different from that appearing on the verification slip. Clearly, petitioner falsely represented that she took the civil service examination when in fact someone else took the examination for her. CSC Memorandum Circular No. 15, series of 1991, provides: An act which includes the procurement and/or use of fake/spurious civil service eligibility, the giving of assistance to ensure the commission or procurement of the same, cheating, collusion, impersonation, or any other anomalous act which amounts to any violation of the Civil Service examination, has been categorized as a grave offense of Dishonesty, Grave Misconduct or Conduct Prejudicial to the Best Interest of the Service.22 It must be stressed that dishonesty is a serious offense, which reflects on the persons character and exposes the moral decay which virtually destroys his honor, virtue, and integrity. Its immense debilitating effect on the government service cannot be overemphasized.23 If a government officer or employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected with his office, they affect his right to continue in office. The government cannot tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression, and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations.24 Under the Civil Service Rules, dishonesty is a grave offense punishable by dismissal which carries the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits (except leave credits), and disqualification from reemployment in the government service.25 In Civil Service Commission v. Dasco,26 Bartolata v. Julaton,27 and Civil Service Commission v. Sta. Ana,28 we found the respondents-employees therein guilty of dishonesty when they misrepresented that they took the Civil Service Examination when in fact someone else took the examination for them. Because of such dishonesty, the employees were dismissed from government service. We find no reason to deviate from these previous rulings. WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals Decision dated November 24, 2008 and Resolution dated April 29, 2009 in CA-G.R. SP No. 101599 are AFFIRMED. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. The facts are: On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special Administrative Region. Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition andmandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest. On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void. On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed. On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001. Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner. After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 9995733. It was then raffled off to Branch 8 presided by respondent judge. On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus: In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court; 3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire,

manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002. Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings. In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of ones liberty. Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail. In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus: x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the

constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpusfinds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties

giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order. First, we note that the exercise of the States power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained. Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow

extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14 But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently." Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable. Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganancorrectly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an

extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,petitioners, vs. RAYMOND MANALO and REYNALDO MANALO, respondents. DECISION PUNO, C.J.: While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The

constitution is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty and security in the first petition for a writ 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 191 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 14 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 AmparoPetition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ of Amparo under Sec. 266 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. 187 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 AmparoRule 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 latter's 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 theirbarangay 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 barangaycouncilors, 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 Reynaldo's. 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 (Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room. The soldiers asked him if he was a member of the New People's 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, Raymond's interrogators appeared to be high officials as the soldiers who beat him up would salute them, call them "sir," and treat them with respect. He was in blindfolds when interrogated by the high officials, but he saw their faces when they arrived and before the blindfold was put on. He noticed that the uniform of the high officials was different from those of the other soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas corpus case filed in connection with the respondents' abduction.16 While these officials interrogated him, Raymond was not manhandled. But once they had left, the soldier guards beat him up. When the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only at night, usually with left-over and rotten food.17 On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat him up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a burning wood. When he could no longer endure the torture and could hardly breathe, they stopped. They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they warned Raymond that they would come back the next day and kill him.18 The following night, Raymond attempted to escape. He waited for the guards to get drunk, then made noise with the chains put on him to see if they were still awake. When none of them came to check on him, he managed to free his hand from the chains and jumped through the window. He passed through a helipad and firing range and stopped near a fishpond where he used stones to break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo church. He talked to some women who were doing the laundry, asked where he was and the road to Gapan. He was told that he was in Fort Magsaysay.19 He reached the highway, but some soldiers spotted him, forcing him to run away. The soldiers chased him and caught up with him. They brought him to another place near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him. Then a socalled "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 people22 had been detained in thatbartolina, 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 Hilario's 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, basta't sundin n'yo 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 former's 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, Raymond's parents acceded. Hilario threatened Raymond's 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, Raymond's 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 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At

times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but were put back on at night. They were threatened that if they escaped, their families would all be killed.37 On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be thankful they were still alive and should continue along their "renewed life." Before the hearing of November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the hearing. However, their parents had already left 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 Raymond's 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 ito'y 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 Raymond's 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 Camp Tecson."46 Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected with the Medical Action Group, an organization handling cases of human rights violations, particularly cases where torture was involved. He was requested by an NGO to conduct medical examinations on the respondents after their escape. He first asked them about their ordeal, then proceeded with the physical examination. His findings showed that the scars borne by respondents were consistent with their account of physical injuries inflicted upon them. The examination was conducted on August 15, 2007, two days after respondents' escape, and the results thereof were reduced into writing. Dr. Molino took photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the examination.47 Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with the October 25, 2007 Resolution of the Court, they filed a Return of the Writ 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 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of the 7th 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, 7th 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 AmparoRule 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 ofAmparo 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 ofAmparo (G.R. No. 179994) filed at the instance of relatives of a certain Cadapan and Empeo pending before the Supreme Court. 3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish the surrounding circumstances of the disappearances of the petitioners and to bring those responsible, including any military personnel if shown to have participated or had complicity in the commission of the complained acts, to the bar of justice, when warranted by the findings and the competent evidence that may be gathered in the process.50 Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeo and Merino, which averred among others, viz: 10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion detachment as detention area, I immediately went to the 24th IB detachment in Limay, Bataan and found no untoward incidents in the area nor any detainees by the name of Sherlyn Cadapan, Karen Empeo and Manuel Merino being held captive; 11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay, Bataan; 12) After going to the 24th 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 1st 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.57Jimenez 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 investigated61 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 Jimenez's 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 CAFGU's, 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 court's 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 Court's expanded power to promulgate rules to protect our people's 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 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.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 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.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 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."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.86Other countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some constitutional guarantees or fundamental rights.87 In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several of the above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The Clause accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case 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 Amparo Rule came into effect on October 24, 2007, they moved to have their petition treated as an Amparo petition as it would be more effective and suitable to the circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion. With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in disputing the Decision of the Court of Appeals states, viz: The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving affidavit/testimony of herein respondent Raymond Manalo.94 In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof required. Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz: Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied) Sections 17 and 18, on the other hand, provide for the degree of proof required, viz: Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims bysubstantial 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 Manalo's 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. Palparan's 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. Palparan's 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. Hilario's 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 Manalo's statements were not corroborated by other independent and credible pieces of evidence.102 Raymond's 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 Manalo's 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 Commission's 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 places112 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. Enrile113 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 one's person, including the extensions of his/her person - houses, papers, and effects - against government intrusion. Section 2 not only limits the state's power over a person's 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 man's 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 1120 guarantees essentially the right to be alive121 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 man's existence."122 In a broad sense, the right to security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual."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, acause 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, one's 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 one's 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 Committee136 in not a few cases involving Article 9137 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 complainant's husband who was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder of the complainant's partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia,144involving 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 claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's 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 Raymond's narration, he was tortured and poured with gasoline after he was caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam," who wanted to see him before he was killed, spared him. This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It should be stressed that they are now free from captivity not because they were released by virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay, Bataan, respondents' captors even told them that they were still deciding whether they should be executed. Respondent Raymond Manalo attested in his affidavit, viz: Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.148 The possibility of respondents being executed stared them in the eye while they were in detention. With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced and implicated specific officers in the military not only in their own abduction and torture, but also in those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel Merino, among others. Understandably, since their escape, respondents have been under concealment and protection by private citizens because of the threat to their life, liberty and security. The threat vitiates their free will as they are forced to limit their movements or activities.149 Precisely because respondents are being shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt acts of threat such as face-to-face intimidation or written threats to their life, liberty and security. Nonetheless, the circumstances of respondents' abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of Amparo. Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents' abduction as revealed by the testimony and investigation report of petitioners' own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.

The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court.150 Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents.151 To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of Amparo. Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents' right to security as a guarantee of protection by the government. In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question. First, that petitioners furnish respondents all official and unofficial reports of the investigation undertaken in connection with their case, except those already in file with the court. Second, that petitioners confirm in writing the present places of official assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas. Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records and charts, and reports of any treatment given or recommended and medicines prescribed, if any, to the Manalo brothers, to include a list of medical personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007. With respect to the first and second reliefs, petitioners argue that the production order sought by respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites for the issuance of a search warrant must be complied with prior to the grant of the production

order, namely: (1) the application must be under oath or affirmation; (2) the search warrant must particularly describe the place to be searched and the things to be seized; (3) there exists probable cause with one specific offense; and (4) the probable cause must be personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.152 In the case at bar, however, petitioners point out that other than the bare, self-serving and vague allegations made by respondent Raymond Manalo in his unverified declaration and affidavit, the documents respondents seek to be produced are only mentioned generally by name, with no other supporting details. They also argue that the relevancy of the documents to be produced must be apparent, but this is not true in the present case as the involvement of petitioners in the abduction has not been shown. Petitioners' arguments do not hold water. The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz: Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control... In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on the ground that it violated the search and seizure clause. The Court struck down the argument and held that the subpoenapertained 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 ofAmparo. They add that it will unnecessarily compromise and jeopardize the exercise of official functions and duties of military officers and even unwittingly and unnecessarily expose them to threat of personal injury or even death.

On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents' rights. The list of medical personnel is also relevant in securing information to create the medical history of respondents and make appropriate medical interventions, when applicable and necessary. In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of Appeals dated December 26, 2007 is affirmed. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 191805 November 15, 2011

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ, NORIEL H. RODRIGUEZ, Petitioner, vs. GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC under the name "HARRY," ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and VINCENT CALLAGAN,Respondents. x------------------------x G.R. No. 193160 IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA, 1st LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA, ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A. CALLAGAN, Petitioners, vs. NORIEL H. RODRIGUEZ, Respondent.

DECISION SERENO, J.: Before this Court are two consolidated cases, namely, (1) Petition for Partial Review on Certiorari dated 20 April 2010 (G.R. No. 191805), and (2) Petition for Review on Certiorari dated 19 August 2010 (G.R. No. 193160).1 Both Petitions assail the 12 April 2010 Decision of the Court of Appeals, the dispositive portion of which reads: WHEREFORE, the petition for writ of amparo and writ of habeas data is GRANTED. Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Z. Ochoa, PCSupt. Ameto G. Tolentino, PSSupt. Jude W. Santos, Col. Remigio M. De Vera, Lt. Col. Laurence E. Mina and 1Lt. Ryan S. Matutina, or their replacements in their official posts if they have already vacated the same, are ORDERED to furnish this Court within five (5) days from notice of this decision, official or unofficial reports pertaining to petitioner covering but not limited to intelligence reports, operation reports and provost marshal reports prior to, during and subsequent to September 6, 2009 made by the 5th Infantry Division, Philippine Army, its branches and subsidiaries, including the 17th Infantry Battalion, Philippine Army. The above-named respondents are also DIRECTED to refrain from using the said reports in any transaction or operation of the military. Necessarily, the afore-named respondents are ORDERED to expunge from the records of the military all documents having any reference to petitioner. Likewise, the afore-named respondents, as well as respondents Police Director General Jesus Ame Versoza, Antonio Cruz, Aldwin Pasicolan and Vicente Callagan are DIRECTED to ensure that no further violation of petitioners rights to life, liberty and security is committed against the latter or any member of his family. The petition is DISMISSED with respect to President Gloria Macapagal-Arroyo on account of her presidential immunity from suit. Similarly, the petition is DISMISSED with respect to respondents Calog and George Palacpac or Harry for lack of merit. Petitioners prayer for issuance of a temporary protection order and inspection order is DENIED. Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent in G.R. No. 193160. He is a member of Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), a peasant organization affiliated with Kilusang Magbubukid ng Pilipinas (KMP). On the other hand, Gloria Macapagal-Arroyo (former President Arroyo), Police Director General (PDG.) Jesus A. Verzosa, Police Senior Superintendent (P/SSupt.) Jude W. Santos, Brigadier General (Brig. Gen.) Remegio M. De Vera, First Lieutenant (1st Lt.) Ryan S. Matutina, Lieutenant Colonel (Lt. Col.) Laurence E. Mina, Antonio C. Cruz (Cruz), Aldwin C. Pasicolan (Pasicolan) and Vicente A. Callagan (Callagan) are respondents in G.R. No. 191805 and petitioners in G.R. No. 193160. At the time the events relevant to the present Petitions occurred, former President Arroyo was the President of the Philippines. PDG. Verzosa, P/SSupt. Santos, Brig. Gen. De Vera, 1st Lt. Matutina and Lt. Col. Mina were officers of the Philippine National Police (PNP). Cruz, Pasicolan and Callagan were Special Investigators of the Commission on Human Rights (CHR) in Region II.

Antecedent Facts Rodriguez claims that the military tagged KMP as an enemy of the State under the Oplan Bantay Laya, making its members targets of extrajudicial killings and enforced disappearances.2 On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel, Cagayan onboard a tricycle driven by Hermie Antonio Carlos (Carlos), when four men forcibly took him and forced him into a car. Inside the vehicle were several men in civilian clothes, one of whom was holding a .45 caliber pistol. Subsequently, three more persons arrived, and one of them carried a gun at his side. Two men boarded the car, while the others rode on the tricycle.3 The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his back and started punching him. The car travelled towards the direction of Sta. Teresita-Mission and moved around the area until about 2:00 a.m. During the drive, the men forced Rodriguez to confess to being a member of the New Peoples Army (NPA), but he remained silent. The car then entered a place that appeared to be a military camp. There were soldiers all over the area, and there was a banner with the word "Bravo" written on it. Rodriguez later on learned that the camp belonged to the 17th Infantry Battalion of the Philippine Army.4 Rodriguez was brought to a canteen, where six men confronted him, ordering him to confess to his membership in the NPA. Due to his exhaustion, he unintentionally fell asleep. As a result, the men hit him on the head to wake him up. After the interrogation, two of the men guarded him, but did not allow him to sleep.5 In the morning of 7 September 2009, the men tied the hands of Rodriguez, blindfolded him and made him board a vehicle. While they were in transit, the soldiers repeatedly hit him in the head and threatened to kill him. When the car stopped after about ten minutes, the soldiers brought him to a room, removed his blindfold, and forced him to confess to being a member of the NPA. During the interrogation, the soldiers repeatedly hit him on the head. Thereafter, he was detained inside the room for the entire day. The soldiers tied his stomach to a papag, and gave him rice and viand. Fearing that the food might be poisoned, he refused to eat anything. He slept on thepapag while being tied to it at the waist.6 On 8 September 2009, the men forced Rodriguez into a vehicle, which brought them to Bugey and Mission. While passing houses along the way, the men asked him if his contacts lived in those houses. When he failed to answer, a soldier pointed a gun to his head and threatened to kill him and his family. Because he remained silent, the soldiers beat him and tied him up. The vehicle returned to the military camp at past 1:00 p.m., where he was again subjected to tactical interrogation about the location of an NPA camp and his alleged NPA comrades. He suffered incessant mauling every time he failed to answer.7 At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made him their guide on their way to an NPA camp in Birao. Accompanying them was a man named Harry, who, according to the soldiers, was an NPA member who had surrendered to the military. Harry pointed to Rodriguez and called him a member of the NPA. He also heard Harry tell the soldiers that the latter knew the area well and was acquainted with a man named Elvis. The soldiers loaded Rodriguez into a military truck and drove to Tabbak, Bugey. While he was walking with the soldiers, he noticed a soldier with the name tag "Matutina," who appeared to be an official because the other soldiers addressed him as "sir."8

Upon reaching Birao on foot, the soldiers looked for and was able to locate a certain Elvis and told him that Rodriguez had identified his whereabouts location. The soldiers forced Rodriguez to convince Elvis to disclose the location of the NPA camp. They brought the two to the mountains, where both were threatened with death. When the soldiers punched Elvis, Rodriguez told them that he would reveal the location of the NPA camp if they let Elvis go home. They finally released Elvis around 3:00 p.m. that day. The soldiers and Rodriguez spent the next three nights in the mountains.9 On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify the location of the NPA camp. He was blindfolded and warned to get ready because they would beat him up again in the military camp. Upon arrival therein, they brought him to the same room where he had first been detained, and two soldiers mauled him again. They repeatedly punched and kicked him. In the afternoon, they let him rest and gave him an Alaxan tablet. Thereafter, he fell asleep due to overfatigue and extreme body pain. The soldiers, however, hit him again. After giving him a pen and a piece of paper, they ordered him to write down his request for rice from the people. When he refused, the soldiers maltreated him once more.10 On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring that he had surrendered in an encounter in Cumao, and that the soldiers did not shoot him because he became a military asset in May. When he refused to sign the document, he received another beating. Thus, he was compelled to sign, but did so using a different signature to show that he was merely coerced.11 The soldiers showed Rodriguez photographs of different persons and asked him if he knew the men appearing therein. When he told them that he did not recognize the individuals on the photos, the soldiers instructed him to write down the name of his school and organization, but he declined. The soldiers then wrote something on the paper, making it appear that he was the one who had written it, and forced him to sign the document. The soldiers took photographs of him while he was signing. Afterwards, the soldiers forced him down, held his hands, and sat on his feet. He did not only receive another beating, but was also electrocuted. The torture lasted for about an hour.12 At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military operation in the mountains, where he saw Matutina again. They all spent the night there.13 In the morning of 16 September 2009, the soldiers and Rodriguez started their descent. When they stopped, the soldiers took his photograph and asked him to name the location of the NPA camp. Thereafter, they all returned to the military camp. The soldiers asked him to take a bath and wear a white polo shirt handed to him. He was then brought to the Enrile Medical Center, where Dr. Juliet Ramil (Dr. Ramil) examined him.14 When the doctor asked him why he had bruises and contusions, he lied and told her that he sustained them when he slipped, as he noticed a soldier observing him. Dr. Ramils medical certificate indicated that he suffered from four hematomas in the epigastric area, chest and sternum.15 Back at the camp, the soldiers let Rodriguez eat with several military officials and took pictures of him while he was eating with them. They also asked him to point to a map in front of him and again took his photograph. Later, they told him that he would finally see his mother. 16

Rodriguez was brought to another military camp, where he was ordered to sign a piece of paper stating that he was a surrenderee and was never beaten up. Scared and desperate to end his ordeal, he signed the paper and was warned not to report anything to the media.17 Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take a bath. They gave him a pair of jeans and perfume. While he was having breakfast, the two soldiers guarding him repeatedly reminded him not to disclose to the media his experience in the camp and to say instead that he had surrendered to the military.18 At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived surrounded by several men. His mother, Wilma Rodriguez (Wilma), talked to Lt. Col. Mina. Rodriguez heard one of the soldiers tell Wilma that he had surrendered to the military and had long been its asset. His brother, Rodel Rodriguez (Rodel), informed him that the men accompanying them were from the CHR, namely, Pasicolan, Cruz and Callagan. Upon seeing Rodriguez, Cruz instructed him to lift up his shirt, and one of the CHR employees took photographs of his bruises.19 A soldier tried to convince Wilma to let Rodriguez stay in the camp for another two weeks to supposedly prevent the NPA from taking revenge on him. Respondent Calog also approached Rodriguez and Rodel and asked them to become military assets. Rodel refused and insisted that they take Rodriguez home to Manila. Again, the soldiers reminded them to refrain from facing the media. The soldiers also told them that the latter will be taken to the Tuguegarao Airport and guarded until they reached home.20 Rodriguez and his family missed their flight. Subsequently, the soldiers accompanied them to the CHR office, where Rodriguez was made to sign an affidavit stating that he was neither abducted nor tortured. Afraid and desperate to return home, he was forced to sign the document. Cruz advised him not to file a case against his abductors because they had already freed him. The CHR personnel then led him and his family to the CHR Toyota Tamaraw FX service vehicle. He noticed that a vehicle with soldiers on board followed them.21 The Tamaraw FX pulled over and respondent 1st Lt. Matutina boarded the vehicle. Upon reaching a mall in Isabela, Rodriguez, his family, Callagan, 1st Lt. Matutina and two other soldiers transferred to an orange Toyota Revo with plate number WTG 579. Upon reaching the boundary of Nueva Ecija and Nueva Viscaya, 1st Lt. Matutina alighted and called Rodriguez to a diner. A certain Alan approached Rodriguez and handed him a cellphone with a SIM card. The latter and his family then left and resumed their journey back home.22 Rodriguez reached his house in Sta. Ana, Manila at 3:00 a.m. on 18 September 2010. Callagan and two soldiers went inside the house, and took photographs and a video footage thereof. The soldiers explained that the photos and videos would serve as evidence of the fact that Rodriguez and his family were able to arrive home safely. Despite Rodriguezs efforts to confront the soldiers about their acts, they still continued and only left thirty minutes later.23 On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the International Committee on Torture and Rehabilitation, examined Rodriguez and issued a Medical Certificate stating that the latter had been a victim of torture.24

Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel Robles, noticed that several suspicious-looking men followed them at the Metro Rail Transit (MRT), in the streets and on a jeepney.25 On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ of Amparo and Petition for the Writ of Habeas Data with Prayers for Protection Orders, Inspection of Place, and Production of Documents and Personal Properties dated 2 December 2009.26 The petition was filed against former President Arroyo, Gen. Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj. Gen.) Nestor Z. Ochoa, P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1st Lt. Matutina, Calog, George Palacpac (Palacpac), Cruz, Pasicolan and Callagan. The petition prayed for the following reliefs: a. The issuance of the writ of amparo ordering respondents to desist from violating Rodriguezs right to life, liberty and security. b. The issuance of an order to enjoin respondents from doing harm to or approaching Rodriguez, his family and his witnesses. c. Allowing the inspection of the detention areas of the Headquarters of Bravo Co., 5th Infantry Division, Maguing, Gonzaga, Cagayan and another place near where Rodriguez was brought. d. Ordering respondents to produce documents submitted to them regarding any report on Rodriguez, including operation reports and provost marshall reports of the 5th Infantry Division, the Special Operations Group of the Armed Forces of the Philippines (AFP), prior to, on and subsequent to 6 September 2009.1wphi1 e. Ordering records pertinent or in any way connected to Rodriguez, which are in the custody of respondents, to be expunged, disabused, and forever barred from being used.27 On 15 December 2009, we granted the respective writs after finding that the petition sufficiently alleged that Rodriguez had been abducted, tortured and later released by members of the 17th Infantry Battalion of the Philippine Army.28 We likewise ordered respondents therein to file a verified return on the writs on or before 22 December 2009 and to comment on the petition on or before 4 January 2010.29 Finally, we directed the Court of Appeals to hear the petition on 4 January 2010 and decide on the case within 10 days after its submission for decision.30 During the initial hearing on 4 January 2010, the Court of Appeals required the parties to submit affidavits and other pieces of evidence at the next scheduled hearing on 27 January 2010.31 On 8 January 2010, respondents therein, through the Office of the Solicitor General (OSG), filed their Return of the Writ, which was likewise considered as their comment on the petition.32 In their Return, respondents therein alleged that Rodriguez had surrendered to the military on 28 May 2009 after he had been put under surveillance and identified as "Ka Pepito" by former rebels.33 According to his military handlers, Corporal (Cpl.) Rodel B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the NPA operating in Cagayan Valley.34 Wanting to bolt from the NPA, he told Cpl. Cabaccan and Cpl. Navarro that he would help the military in exchange for his protection.35

Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign an Oath of Loyalty and an Agents Agreement/Contract, showing his willingness to return to society and become a military asset.36 Since then, he acted as a double agent, returning to the NPA to gather information.37 However, he feared that his NPA comrades were beginning to suspect him of being an infiltrator.38 Thus, with his knowledge and consent, the soldiers planned to stage a sham abduction to erase any suspicion about him being a double agent.39 Hence, the abduction subject of the instant petition was conducted.40 Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ dated 15 January 2010,41alleging that they had exercised extraordinary diligence in locating Rodriguez, facilitating his safe turnover to his family and securing their journey back home to Manila. More specifically, they alleged that, on 16 September 2009, after Wilma sought their assistance in ascertaining the whereabouts of her son, Cruz made phone calls to the military and law enforcement agencies to determine his location.42 Cruz was able to speak with Lt. Col. Mina, who confirmed that Rodriguez was in their custody.43 This information was transmitted to CHR Regional Director Atty. Jimmy P. Baliga. He, in turn, ordered Cruz, Pasicolan and Callagan to accompany Wilma to the 17th Infantry Division.44 When the CHR officers, along with Wilma and Rodel, arrived at the 17th Infantry Battalion at Masin, Alcala, Cagayan, Brigade Commander Col. de Vera and Battalion Commander Lt. Col. Mina alleged that Rodriguez had become one of their assets, as evidenced by the Summary on the Surrender of Noriel Rodriguez and the latters Contract as Agent.45 The CHR officers observed his casual and cordial demeanor with the soldiers.46 In any case, Cruz asked him to raise his shirt to see if he had been subjected to any maltreatment. Cruz and Pasicolan did not see any traces of torture. Thereafter, Rodriguez was released to his family, and they were made to sign a certification to this effect. During the signing of the document, herein CHR officers did not witness any threat, intimidation or force employed against Rodriguez or his family. 47 During their journey back to the home of Rodriguez, the CHR officers observed that he was very much at ease with his military escorts, especially with 1st Lt. Matutina.48 Neither was there any force or intimidation when the soldiers took pictures of his house, as the taking of photographs was performed with Wilmas consent.49 During the hearing on 27 January 2010, the parties agreed to file additional affidavits and position papers and to have the case considered submitted for decision after the filing of these pleadings.50 On 12 April 2010, the Court of Appeals rendered its assailed Decision.51 Subsequently, on 28 April 2010, respondents therein filed their Motion for Reconsideration.52 Before the Court of Appeals could resolve this Motion for Reconsideration, Rodriguez filed the instant Petition for Partial Review on Certiorari (G.R. No. 191805), raising the following assignment of errors: a. The Court of Appeals erred in not granting the Interim Relief for temporary protection order. b. The Court of Appeals erred in saying: "(H)owever, given the nature of the writ of amparo, which has the effect of enjoining the commission by respondents of violation to petitioners right to life, liberty and security, the safety of petitioner is ensured with the issuance of the writ, even in the absence of an order preventing respondent from approaching petitioner."

c. The Court of Appeals erred in not finding that respondent Gloria Macapagal Arroyo had command responsibility.53 On the other hand, respondents therein, in their Comment dated 30 July 2010, averred: a. The Court of Appeals properly dropped then President Gloria Macapagal Arroyo as a party-respondent, as she may not be sued in any case during her tenure of office or actual incumbency. b. Petitioner had not presented any adequate and competent evidence, much less substantial evidence, to establish his claim that public respondents had violated, were violating or threatening to violate his rights to life, liberty and security, as well as his right to privacy. Hence, he was not entitled to the privilege of the writs of amparo and habeas data or to the corresponding interim reliefs (i.e. inspection order, production order and temporary protection order) provided under the rule on the writ of amparo and the rule on the writ of habeas data.54 On 19 August 2010, PDG. Verzosa, P/SSupt. Santos, BGen. De Vera, 1st Lt. Matutina, Lt. Col. Mina, Cruz, Pasicolan and Callagan filed a Petition for Review on Certiorari, seeking the reversal of the 12 April 2010 Decision of the Court of Appeals.55 They alleged that Rodriguez Has not presented any adequate and competent evidence, must less substantial evidence, to establish his claim that petitioners have violated, are violating or threatening with violation his rights to life, liberty and security, as well as his right to privacy; hence, he is not entitled to the privilege of the writs of amparo and habeas data and their corresponding interim reliefs (i.e., inspection order, production order and temporary protection order) provided under the Rule on the Writ of Amparo and the Rule on the Writ of Habeas Data.56 In ascertaining whether the Court of Appeals committed reversible error in issuing its assailed Decision and Resolution, the following issues must be resolved: I. Whether the interim reliefs prayed for by Rodriguez may be granted after the writs of amparo and habeas data have already been issued in his favor. II. Whether former President Arroyo should be dropped as a respondent on the basis of the presidential immunity from suit. III. Whether the doctrine of command responsibility can be used in amparo and habeas data cases. IV. Whether the rights to life, liberty and property of Rodriguez were violated or threatened by respondents in G.R. No. 191805. At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to ensure the protection of the peoples rights to life, liberty and security.57 The rules on these writs were issued in light of the alarming prevalence of extrajudicial killings and enforced disappearances.58 The Rule on the Writ of Amparo took effect on 24 October 2007,59 and the Rule on the Writ of Habeas Data on 2 February 2008.60

The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner.61 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.62 Rather, it serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances.63 It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.64 Meanwhile, the writ of habeas data provides a judicial remedy to protect a persons right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends.65 As an independent and summary remedy to protect the right to privacy especially the right to informational privacy66 the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification.67 First issue: Grant of interim reliefs In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary protection order. It must be underscored that this interim relief is only available before final judgment. Section 14 of the Rule on the Writ of Amparo clearly provides: Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: Temporary Protection Order. The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (a) Inspection Order. The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (b) Production Order. The court, justice, or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (c) Witness Protection Order. The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. (Emphasis supplied) We held in Yano v. Sanchez68 that "[t]hese provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition." Being interim reliefs, they can only be granted before a final adjudication of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Thus, since we grant petitioner the privilege of the writ of amparo, there is no need to issue a temporary protection order independently of the former. The order restricting respondents from going near Rodriguez is subsumed under the privilege of the writ. Second issue: Presidential immunity from suit It bears stressing that since there is no determination of administrative, civil or criminal liability in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or

accountability for the enforced disappearance or extrajudicial killing. As we held in Razon v. Tagitis:69 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.70 (Emphasis supplied.) Thus, in the case at bar, the Court of Appeals, in its Decision71 found respondents in G.R. No. 191805 with the exception of Calog, Palacpac or Harry to be accountable for the violations of Rodriguezs right to life, liberty and security committed by the 17th Infantry Battalion, 5th Infantry Division of the Philippine Army. 72 The Court of Appeals dismissed the petition with respect to former President Arroyo on account of her presidential immunity from suit. Rodriguez contends, though, that she should remain a respondent in this case to enable the courts to determine whether she is responsible or accountable therefor. In this regard, it must be clarified that the Court of Appeals rationale for dropping her from the list of respondents no longer stands since her presidential immunity is limited only to her incumbency. In Estrada v. Desierto,73 we clarified the doctrine that a non-sitting President does not enjoy immunity from suit, even for acts committed during the latters tenure. We emphasize our ruling therein that courts should look with disfavor upon the presidential privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a right, to wit: We reject [Estradas] argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a nonsitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz: "x x x xxx xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgment of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts." This is in accord with our ruling in In Re: Saturnino Bermudez that "incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure" but not beyond. xxx We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the President from civil damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.74 (Emphasis supplied) Further, in our Resolution in Estrada v. Desierto,75 we reiterated that the presidential immunity from suit exists only in concurrence with the presidents incumbency: Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its

bends and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting President. Petitioner's rehashed arguments including their thinly disguised new spins are based on the rejected contention that he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is now a new de jure President. Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit during his term of office. He buttresses his position with the deliberations of the Constitutional Commission, viz: "Mr. Suarez. Thank you. The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the president shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily? Fr. Bernas: The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez: So there is no need to express it here. Fr. Bernas: There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez: On the understanding, I will not press for any more query, madam President. I thank the Commissioner for the clarification." Petitioner, however, fails to distinguish between term and tenure. The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds office. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only with his tenure and not his term.76 (Emphasis supplied)

Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo cannot use the presidential immunity from suit to shield herself from judicial scrutiny that would assess whether, within the context of amparo proceedings, she was responsible or accountable for the abduction of Rodriguez. Third issue: Command responsibility in amparo proceedings To attribute responsibility or accountability to former President Arroyo, Rodriguez contends that the doctrine of command responsibility may be applied. As we explained in Rubrico v. Arroyo,77 command responsibility pertains to the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict."78 Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses.79 In the United States, for example, command responsibility was used in Ford v. Garcia andRomagoza v. Garcia civil actions filed under the Alien Tort Claims Act and the Torture Victim Protection Act.80This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. Thus, it is our view that command responsibility may likewise find application in proceedings seeking the privilege of the writ of amparo. As we held inRubrico: It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution. xxx xxx xxx

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any.81(Emphasis supplied.) Precisely in the case at bar, the doctrine of command responsibility may be used to determine whether respondents are accountable for and have the duty to address the abduction of Rodriguez in order to enable the courts to devise remedial measures to protect his rights. Clearly, nothing precludes this Court from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances. In this regard, the Separate Opinion of Justice Conchita Carpio-Morales in Rubrico is worth noting, thus: That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or administrative liability should not abate the applicability of the doctrine of command responsibility. Taking Secretary of National Defense v. Manalo and Razon v. Tagitis in proper context, they do not preclude the application of the doctrine of command responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right to security of person and its contemporary signification as a guarantee of protection of ones rights by the government. It further stated that 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. Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the doctrine of command responsibility: Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis. Neither does Republic Act No. 9851 emasculate the applicability of the command responsibility doctrine to Amparo cases. The short title of the law is the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity." Obviously, it should, as it did, only treat of superior responsibility as a ground for criminal responsibility for the crimes covered.http://www.lawphil.net/judjuris/juri2010/feb2010/gr_183871_2010.html fnt20cm Such limited treatment, however, is merely in keeping with the statutes purpose and not intended to rule out the application of the doctrine of command responsibility to other appropriate cases. Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police officers from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit adoption of the doctrine of command responsibility in the present case will only bring Manalo and Tagitis to their logical conclusion. In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and enforced disappearances or threats thereof. While there is a genuine dearth of evidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command responsibility doctrine, the ponencias hesitant application of the doctrine itself is replete with implications abhorrent to the rationale behind the Rule on the Writ of Amparo.82(Emphasis supplied.) This Separate Opinion was reiterated in the recently decided case of Boac v. Cadapan,83 likewise penned by Justice Carpio-Morales, wherein this Court ruled: Rubrico categorically denies the application of command responsibility in amparo cases to determine criminal liability. The Court maintains its adherence to this pronouncement as far as amparo cases are concerned. Rubrico, however, recognizes a preliminary yet limited application of command responsibility in amparo cases to instances of determining the responsible or accountable individuals or entities that are duty-bound to abate any transgression on the life, liberty or security of the aggrieved party.

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any. In other words, command responsibility may be loosely applied in amparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo court would issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party. Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further investigation by the appropriate government agency. (Emphasis supplied.) As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, and (b) accountability, or the measure of remedies that should be addressed to those (i) who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or (ii) who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. Thus, although there is no determination of criminal, civil or administrative liabilities, the doctrine of command responsibility may nevertheless be applied to ascertain responsibility and accountability within these foregoing definitions. a. Command responsibility of the President Having established the applicability of the doctrine of command responsibility in amparo proceedings, it must now be resolved whether the president, as commander-in-chief of the military, can be held responsible or accountable for extrajudicial killings and enforced disappearances. We rule in the affirmative. To hold someone liable under the doctrine of command responsibility, the following elements must obtain: a. the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate; b. the superior knew or had reason to know that the crime was about to be or had been committed; and c. the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof.84

The president, being the commander-in-chief of all armed forces,85 necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine. 86 On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence.87 In the Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, otherwise known as the Institutionalization of the Doctrine of Command Responsibility in all Government Offices, particularly at all Levels of Command in the Philippine National Police and other Law Enforcement Agencies (E.O. 226).88 Under E.O. 226, a government official may be held liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during, or immediately after its commission.89 Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government officials area of jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or office personnel are involved.90 Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the armed forces, the president has the power to effectively command, control and discipline the military.91 b. Responsibility or accountability of former President Arroyo The next question that must be tackled is whether Rodriguez has proven through substantial evidence that former President Arroyo is responsible or accountable for his abduction. We rule in the negative. Rodriguez anchors his argument on a general allegation that on the basis of the "Melo Commission" and the "Alston Report," respondents in G.R. No. 191805 already had knowledge of and information on, and should have known that a climate of enforced disappearances had been perpetrated on members of the NPA.92 Without even attaching, or at the very least, quoting these reports, Rodriguez contends that the Melo Report points to rogue military men as the perpetrators. While the Alston Report states that there is a policy allowing enforced disappearances and pins the blame on the President, we do not automatically impute responsibility to former President Arroyo for each and every count of forcible disappearance.93 Aside from Rodriguezs general averments, there is no piece of evidence that could establish her responsibility or accountability for his abduction. Neither was there even a clear attempt to show that she should have known about the violation of his right to life, liberty or security, or that she had failed to investigate, punish or prevent it. Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805 The doctrine of totality of evidence in amparo cases was first laid down in this Courts ruling in Razon,94 to wit: 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.95 (Emphasis supplied.) In the case at bar, we find no reason to depart from the factual findings of the Court of Appeals, the same being supported by substantial evidence. A careful examination of the records of this case reveals that the totality of the evidence adduced by Rodriguez indubitably prove the responsibility and accountability of some respondents in G.R. No. 191805 for violating his right to life, liberty and security. a. The totality of evidence proved by substantial evidence the responsibility or accountability of respondents for the violation of or threat to Rodriguezs right to life, liberty and security. After a careful examination of the records of these cases, we are convinced that the Court of Appeals correctly found sufficient evidence proving that the soldiers of the 17th Infantry Battalion, 5th Infantry Division of the military abducted Rodriguez on 6 September 2009, and detained and tortured him until 17 September 2009. Rodriguezs Sinumpaang Salaysay dated 4 December 2009 was a meticulous and straightforward account of his horrific ordeal with the military, detailing the manner in which he was captured and maltreated on account of his suspected membership in the NPA.96 His narration of his suffering included an exhaustive description of his physical surroundings, personal circumstances and perceived observations. He likewise positively identified respondents 1st Lt. Matutina and Lt. Col. Mina to be present during his abduction, detention and torture,97 and respondents Cruz, Pasicolan and Callagan as the CHR representatives who appeared during his release.98 More particularly, the fact of Rodriguezs abduction was corroborated by Carlos in his Sinumpaang Salaysay dated 16 September 2009,99 wherein he recounted in detail the circumstances surrounding the victims capture. As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr. Pamugas validate the physical maltreatment Rodriguez suffered in the hands of the soldiers of the 17th Infantry Battalion, 5th Infantry Division. According to the Certification dated 12 October 2009 executed by Dr. Ramil,100 she examined Rodriguez in the Alfonso Ponce Enrile Memorial District Hospital on 16 September 2009 and arrived at the following findings: FACE - 10cm healed scar face right side - 2cm healed scar right eyebrow (lateral area) - 2cm healed scar right eye brow (median area) - 4cm x 2cm hematoma anterior chest at the sternal area right side - 3cm x 2cm hematoma sternal area left side

- 6cm x 1cm hematoma from epigastric area to ant. chest left side - 6cm x 1cm hematoma from epigastric area to ant. chest right side - Multiple healed rashes (brownish discoloration) both forearm - Multiple healed rashes (brownish discoloration) - both leg arm - hip area/lumbar area101 Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September 2009, the results of which confirmed that the injuries suffered by the latter were inflicted through torture. Dr. Pamugas thus issued a Medical Report dated 23 September 2009,102 explicitly stating that Rodriguez had been tortured during his detention by the military, to wit: X. Interpretation of Findings The above physical and psychological findings sustained by the subject are related to the torture and ill-treatment done to him. The multiple circular brown to dark brown spots found on both legs and arms were due to the insect bites that he sustained when he was forced to join twice in the military operations. The abrasions could also be due to the conditions related during military operations. The multiple pin-point blood spots found on his left ear is a result of an unknown object placed inside his left ear. The areas of tenderness he felt during the physical examination were due to the overwhelming punching and kicking on his body. The occasional difficulty of sleeping is a symptom experience (sic) by the subject as a result of the psychological trauma he encountered during his detention. XI. Conclusions and Recommendations The physical injuries and psychological trauma suffered by the subject are secondary to the torture and ill-treatment done to him while in detention for about 11 days. The physical injuries sustained by the subject, of which the age is compatible with the alleged date of infliction (sic).103 (Emphasis supplied.) In assessing the weight of the Certifications, the Court of Appeals correctly relied on the medical finding that the injuries suffered by Rodriguez matched his account of the maltreatment inflicted on him by the soldiers of the 17th Infantry Battalion, 5th Infantry Division of the Philippine Army. Further, the kind of injuries he sustained showed that he could not have sustained them from merely falling, thus making respondents claim highly implausible. Despite these medical findings that overwhelmingly supported and lent credibility to the allegations of Rodriguez in his Sinumpaang Salaysay, respondents in G.R. No. 191805 still stubbornly clung to their argument that he was neither abducted nor detained. Rather, they claimed that he was a double agent, whose relationship with the military was at all times congenial. This contention cannot be sustained, as it is far removed from ordinary human experience.

If it were true that Rodriguez maintained amicable relations with the military, then he should have unhesitatingly assured his family on 17 September 2009 that he was among friends. Instead, he vigorously pleaded with them to get him out of the military facility. In fact, in the Sinumpaang Salaysay dated 4 December 2009104 Wilma executed, she made the following averments: 18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa dahil sa mukha syang pagod at malaki ang kanyang ipinayat. 19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag ko syang iiwan sa lugar na iyon; xxx xxx xxx

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng dalawang linggo sa kampo ako at si Noriel para daw matrain pa si Noriel sa loob ng kampo; 24. Na hindi ako pumayag na maiwan ang aking anak; xxx xxx xxx

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) sa kaligtasan ng aming buong pamilya, lalo na kay Noriel; xxx105 Also, Rodel made the following supporting averments in his Sinumpaang Salaysay dated 3 December 2009:106 24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang-hina sya, malaki ang ipinayat at nanlalalim ang mga mata; 25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil nakilala ko syang masigla at masayahin; 26. Na ilang minuto lang ay binulugan nya ako ng "Kuya, ilabas mo ako dito, papatayin nila ako." 27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang linggo ang aking kapatid sa kanila para raw ma-train sya. 28. Na hindi kami pumayag ng aking nanay; xxx107 Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly contradictory, contention of respondents in G.R. No. 191805 that while Rodriguez had complained of his exhaustion from his activities as a member of the CPP-NPA, he nevertheless willingly volunteered to return to his life in the NPA to become a double-agent for the military. The lower court ruled in this manner: In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military handler, Cpl. Navarro, that petitioner could no longer stand the hardships he experienced in the

wilderness, and that he wanted to become an ordinary citizen again because of the empty promises of the CPP-NPA. However, in the same Return, respondents state that petitioner agreed to become a double agent for the military and wanted to re-enter the CPP-NPA, so that he could get information regarding the movement directly from the source. If petitioner was tired of life in the wilderness and desired to become an ordinary citizen again, it defies logic that he would agree to become an undercover agent and work alongside soldiers in the mountains or the wilderness he dreads to locate the hideout of his alleged NPA comrades.108 (Emphasis supplied.) Furthermore, the appellate court also properly ruled that aside from the abduction, detention and torture of Rodriguez, respondents, specifically 1st Lt. Matutina, had violated and threatened the formers right to security when they made a visual recording of his house, as well as the photos of his relatives, to wit: In the videos taken by the soldiers one of whom was respondent Matutina in the house of petitioner on September 18, 2009, the soldiers even went as far as taking videos of the photos of petitioners relatives hung on the wall of the house, as well as videos of the innermost part of the house. This Court notes that 1Lt. Matutina, by taking the said videos, did not merely intend to make proofs of the safe arrival of petitioner and his family in their home. 1Lt. Matutina also desired to instill fear in the minds of petitioner and his family by showing them that the sanctity of their home, from then on, will not be free from the watchful eyes of the military, permanently captured through the medium of a seemingly innocuous cellhpone video camera. The Court cannot and will not condone such act, as it intrudes into the very core of petitioners right to security guaranteed by the fundamental law.109(Emphasis supplied.) Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the contradictory defenses presented by respondents in G.R. No. 191805, give credence to his claim that he had been abducted, detained and tortured by soldiers belonging to the 17th Infantry Battalion, 5th Infantry Division of the military. It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan, there was no substantial evidence to show that they violated, or threatened with violation, Rodriguezs right to life, liberty and security. Despite the dearth of evidence to show the CHR officers responsibility or accountability, this Court nonetheless emphasizes its criticism as regards their capacity to recognize torture or any similar form of abuse. The CHR, being constitutionally mandated to protect human rights and investigate violations thereof,110 should ensure that its officers are well-equipped to respond effectively to and address human rights violations. The actuations of respondents unmistakably showed their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal. b. The failure to conduct a fair and effect investigation amounted to a violation of or threat to Rodriguezs rights to life, liberty and security. The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official.111 Moreover, in the context of amparo proceedings, responsibility may refer to the participation of the respondents, by action or omission, in enforced disappearance.112 Accountability, on the other hand, may attach to respondents 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.113 In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo114 that the right to security of a person includes the positive obligation of the government to ensure the observance of the duty to investigate, viz: Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. 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. xxx xxx xxx

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. 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. In this case, the claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's 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.115 (Emphasis supplied) In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or accountable for the violation of Rodriguezs right to life, liberty and security on account of their abject failure to conduct a fair and effective official investigation of his ordeal in the hands of the

military. Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only conducted a perfunctory investigation, exerting no efforts to take Ramirezs account of the events into consideration. Rather, these respondents solely relied on the reports and narration of the military. The ruling of the appellate court must be emphasized: In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are accountable, for while they were charged with the investigation of the subject incident, the investigation they conducted and/or relied on is superficial and one-sided. The records disclose that the military, in investigating the incident complained of, depended on the Comprehensive Report of Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the Commanding Officer of the 501st Infantry Brigade, 5th Infantry Division, Philippine Army. Such report, however, is merely based on the narration of the military. No efforts were undertaken to solicit petitioners version of the subject incident and no witnesses were questioned regarding the alleged abduction of petitioner. Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of Republic Act No. 6975, otherwise known as the "PNP Law," specifies the PNP as the governmental office with the mandate "to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution." In this case, PDG Verzosa failed to order the police to conduct the necessary investigation to unmask the mystery surrounding petitioners abduction and disappearance. Instead, PDG Verzosa disclaims accountability by merely stating that petitioner has no cause of action against him. Palpable, however, is the lack of any effort on the part of PDG Verzosa to effectively and aggressively investigate the violations of petitioners right to life, liberty and security by members of the 17th Infantry Battalion, 17th Infantry Division, Philippine Army.116 (Emphasis supplied.) Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez violated his right to security, for which respondents in G.R. No. 191805 must be held responsible or accountable. Nevertheless, it must be clarified that Rodriguez was unable to establish any responsibility or accountability on the part of respondents P/CSupt. Tolentino, P/SSupt. Santos, Calog and Palacpac. Respondent P/CSupt. Tolentino had already retired when the abduction and torture of Rodriguez was perpetrated, while P/SSupt. Santos had already been reassigned and transferred to the National Capital Regional Police Office six months before the subject incident occurred. Meanwhile, no sufficient allegations were maintained against respondents Calog and Palacpac. From all the foregoing, we rule that Rodriguez was successful in proving through substantial evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Brig. Gen. De Vera, 1st Lt. Matutina, and Lt. Col. Mina were responsible and accountable for the violation of Rodriguezs rights to life, liberty and security on the basis of (a) his abduction, detention and torture from 6 September to 17 September 2009, and (b) the lack of any fair and effective official investigation as to his allegations. Thus, the privilege of the writs of amparo and habeas data must be granted in his favor. As a result, there is no longer any need to issue a temporary protection order, as the privilege of these writs already has the effect of enjoining respondents in G.R. No. 191805 from violating his rights to life, liberty and security. It is also clear from the above discussion that despite (a) maintaining former President Arroyo in the list of respondents in G.R. No. 191805, and (b) allowing the application of the command

responsibility doctrine to amparo and habeas data proceedings, Rodriguez failed to prove through substantial evidence that former President Arroyo was responsible or accountable for the violation of his rights to life, liberty and property. He likewise failed to prove through substantial evidence the accountability or responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and Callagan. WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805 and DENY the Petition for Review in G.R. No. 193160. The Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION. The case is dismissed with respect to respondents former President Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vicent Callagan for lack of merit. This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ) to take the appropriate action with respect to any possible liability or liabilities, within their respective legal competence, that may have been incurred by respondents Gen. Victor Ibrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court the results of their action within a period of six months from receipt of this Decision. In the event that herein respondents no longer occupy their respective posts, the directives mandated in this Decision and in the Court of Appeals are enforceable against the incumbent officials holding the relevant positions. Failure to comply with the foregoing shall constitute contempt of court. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 186050 December 13, 2011

ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-STRUGAR and BEVERLY LONGID,Petitioners, vs. GLORIA MACAPAGAL-ARROYO, EDUARDO ERMITA, GILBERTO TEODORO, RONALDO PUNO, NORBERTO GONZALES, Gen. ALEXANDER YANO, Gen. JESUS VERZOSA, Brig. Gen. REYNALDO MAPAGU, Lt. P/Dir. EDGARDO DOROMAL, Maj. Gen. ISAGANI CACHUELA, Commanding Officer of the AFP-ISU based in Baguio City, PSS EUGENE MARTIN and several JOHN DOES, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 186059 PRESIDENT GLORIA MACAPAGAL-ARROYO, SECRETARY EDUARDO ERMITA, SECRETARY GILBERTO TEODORO, SECRETARY RONALDO PUNO, SECRETARY NORBERTO GONZALES, GEN. ALEXANDER YANO, P/DGEN. JESUS VERZOSA, BRIG GEN. REYNALDO MAPAGU, MAJ. GEN. ISAGANI CACHUELA ANDPOL. SR. SUPT. EUGENE MARTIN, Petitioners, vs. ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-STRUGAR and BEVERLY LONGID,Respondents. DECISION VILLARAMA, JR., J.: Before us are consolidated appeals under Section 19 of the Rule on the Writ of Amparofrom the January 19, 2009 Judgment1 of the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001, entitled "In the Matter of the Petition for Issuance of Writ of Amparo in favor of James Balao, Arthur Balao, et al. v. Gloria Macapagal-Arroyo, et al." The RTC granted the petition for the writ of amparo but denied the prayer for issuance of inspection, production and witness protection orders. The Antecedents On October 8, 2008, Arthur Balao, Winston Balao, Nonette Balao and Jonilyn Balao-Strugar, siblings of James Balao, and Beverly Longid (petitioners), filed with the RTC of La Trinidad, Benguet a Petition for the Issuance of a Writ of Amparo2 in favor of James Balao who was abducted by unidentified armed men on September 17, 2008 in Tomay, La Trinidad, Benguet. Named respondents in the petition were then President Gloria Macapagal-Arroyo, Executive Secretary Eduardo R. Ermita, Defense Secretary Gilberto C. Teodoro, Jr.,Interior and Local Government Secretary Ronaldo V. Puno, National Security Adviser (NSA) Norberto B. Gonzales, Armed Forces of the Philippines (AFP) Chief of Staff Gen. Alexander B. Yano, Philippine National Police (PNP) Police Director General Jesus A. Verzosa, Philippine Army (PA) Chief Brig. Gen. Reynaldo B. Mapagu, PNP Criminal Investigation and Detection Group (PNP-CIDG) Chief Lt. P/Dir. Edgardo Doromal, Northern Luzon Command (NOLCOM) Commander Maj. Gen. Isagani C. Cachuela, PNP-Cordillera Administrative Region Regional Director Police Senior Supt. Eugene Gabriel Martin, the Commanding Officer of the AFP Intelligence Service Unit (AFP-ISU) based in Baguio City and several John Does. James M. Balao is a Psychology and Economics graduate of the University of the Philippines-Baguio (UP-Baguio). In 1984, he was among those who founded the Cordillera Peoples Alliance (CPA), a coalition of non-government organizations (NGOs) working for the cause of indigenous peoples in the Cordillera Region. As head of CPAs education and research committee, James actively helped in the training and organization of farmers. He was also the President of Oclupan Clan Association which undertakes the registration and documentation of clan properties to protect their rights over ancestral lands. In 1988, while working for the CPA, he was arrested on the charge of violation of the Anti-Subversion Law but the case was eventually dismissed for lack of evidence. The testimonies and statements of eyewitnesses established the following circumstances surrounding Jamess disappearance:

On September 17, 2008, at around 8:30 in the morning, a man clad in black jacket, black shirt, black visor and gray pants was standing infront of Saymors3 Store at Tomay, La Trinidad, Benguet. He had a belt bag and a travelling bag which was placed on a bench. Vicky Bonel was at the time attending to the said store owned by her brother-in-law while Aniceto G. Dawing, Jr. and his coemployee were delivering bakery products thereat. A white van then arrived and stopped infront of the store. Five men in civilian clothes who were carrying firearms alighted from the van and immediately approached the man poking their guns on him. They grabbed and handcuffed him. The man was asking why he was being apprehended. One of the armed men addressed the people witnessing the incident, saying they were policemen. Another warned that no one should interfere because the man was being arrested for illegal drugs. Thereafter, they pushed the man inside the van. One of the armed men went back to the store to get the mans travelling bag. Before leaving the place, one of the armed men was also heard telling the driver of the van that they are going to proceed to Camp Dangwa (PNP Provincial Headquarters in La Trinidad, Benguet). The van headed towards the direction of La Trinidad town proper. The witnesses later identified the man as James Balao after seeing his photograph which appeared in posters announcing him as missing. The petition alleged that in May 2008, James reported surveillances on his person to his family, particularly to his sister Nonette Balao (Nonette), and to CPA Chairperson Beverly Longid (Beverly). James supposedly observed certain vehicles tailing him and suspiciously parked outside his residence, one of which was a van with plate number USC 922. He also claimed to have received calls and messages through his mobile phone informing him that he was under surveillance by the PNP Regional Office and the AFP-ISU. To prove the surveillance, the informer gave the exact dates he visited his family, clothes he wore, and dates and times he goes home or visits friends and relatives. Attached to the petition were the affidavits4 of Nonette and Beverly attesting to Jamess reports of surveillance to his family and to the CPA. It was further alleged that on September 17, 2008, around 7:00 in the morning, James sent a text message to Nonette informing her that he was about to leave his rented house in Fairview Central, Baguio City and that he was going to their ancestral residence in Pico, La Trinidad, Benguet to do his laundry. The travel time from Fairview, Baguio City to Pico usually takes only 20 to 45 minutes. Around 8:00 a.m., Nonette, after discovering that James never reached their parents house at Pico, started contacting their friends and relatives to ask about Jamess whereabouts. No one, however, had any idea where he was. Thus, the Balao family, with the assistance of the CPA and other NGOs, tried to locate James. Teams were formed to follow Jamess route from Fairview, Baguio City to Pico, La Trinidad and people along the way were asked if they happened to see him. These searches, however, yielded negative results. One of the teams also went to the office of the AFP-ISU (PA-ISU) in Navy Base and the office of the Military Intelligence Group in Camp Allen, both in Baguio City, but the personnel in said offices denied any knowledge on Jamess whereabouts. The family likewise went to Baguio Police Station 7 to report Jamess disappearance. The report was duly entered on the blotter but there have been no developments as of the filing of the petition. They also sought the help of the media to announce Jamess disappearance and wrote several government agencies to inform them of his disappearance and enlist their help in locating him. Petitioners, moreover, enumerated in their petition several incidents of harassments and human rights violations against CPA officers, staff and members.

Contending that there is no plain, speedy or adequate remedy for them to protect Jamess life, liberty and security, petitioners prayed for the issuance of a writ of amparo ordering the respondents to disclose where James is detained or confined, to release James, and to cease and desist from further inflicting harm upon his person. They likewise prayed for (1) an inspection order for the inspection of at least 11 military and police facilities which have been previously reported as detention centers for activists abducted by military and police operatives; (2) a production order for all documents that contain evidence relevant to the petition, particularly the Order of Battle List and any record or dossier respondents have on James; and (3) a witness protection order. Petitioners simultaneously filed an Urgent Ex-Parte Motion5 for the immediate issuance of a writ of amparo pursuant to Section 6 of the Rule on the Writ of Amparo. On October 9, 2008, the Writ of Amparo6 was issued directing respondents to file their verified return together with their supporting affidavit within five days from receipt of the writ. Respondents in their Joint Return7 stated: (1) that President Gloria Macapagal-Arroyo is immune from suit and should thus be dropped as party-respondent; (2) that only Arthur Balao should be named petitioner and the rest of the other petitioners dropped; (3) that there is no allegation of specific wrongdoing against respondents that would show their knowledge, involvement or participation in the abduction of James; (4) that Exec. Sec. Ermita, Sec. Teodoro, Sec. Puno, Sec. Gonzales, Gen. Yano, Gen. Cachuela, Gen. Mapagu and Gen. Verzosa in their respective affidavits denied having such participation or knowledge of Jamess abduction, set forth their actions taken in investigating the matter and undertaking to continue exerting extraordinary diligence in securing the liberty of James and bring all those responsible for his disappearance to the bar of justice, including military or police personnel when warranted by the findings of the investigations; (5) that Supt. Martin already ordered an investigation, came up with interviews of several witnesses, and held a dialogue with the Commander of the Military Intelligence Group I (MIG1) and the Commanding Officer of the Internal Service Unit-Internal Security Group, Philippine Army;and (6) that petitioners themselves did not cooperate with police authorities in the investigation and neither did they ask the National Bureau of Investigation to locate James. Respondents contended that the petition failed to meet the requirement in the Rule on the Writ of Amparo that claims must be established by substantial evidence considering that: (1) petitioners allegations do not mention in anyway the manner, whether directly or indirectly, the alleged participation of respondents in the purported abduction of James; (2) Nonette and Beverly do not have personal knowledge of the circumstances surrounding the abduction of James, hence, their statements are hearsay with no probative value; and (3) the allegations in the petition do not show the materiality and relevance of the places sought to be searched/inspected and documents to be produced, specifically the requirement that the prayer for an inspection order shall be supported by affidavits or testimonies of witnesses having personal knowledge of the whereabouts of the aggrieved party. Respondents further argued that it is the PNP as the law enforcement agency, and not the respondent military and executive officials, which has the duty to investigate cases of missing persons. At most, the AFP may inquire on the matters being alluded to them as may be ordered by the proper superior, which is primarily done for possible court martial proceedings. Hence, their common denials of having any knowledge, participation or authorization for the alleged

disappearance of James Balao. Nonetheless, respondents executed their affidavits to show the actions they have taken and reports submitted to them by the proper authorities, as follows: Executive Secretary Ermitastated that upon receipt of copy of the petition for a writ of amparo, he caused the issuance of a letter addressed to the PNP Chief and AFP Chief of Staff for the purpose of inquiring and establishing the circumstances surrounding the alleged disappearance of James Balao, and which letters also called for the submission of pertinent reports on the results of the investigation conducted, if any.8 Secretary Teodoro declared that soon after the promulgation by this Court of the Rule on the Writ of Amparo, he issued "Policy Directive on the Actions and Defenses Under the Amparo Rule" which instructed members of the AFP to undertake specific measures even without waiting for the filing of an amparo petition in court whenever any member of the AFP or any of its commands or units have been reported or published as being involved in the alleged violation of an individuals right to life, liberty and security or threat thereof, as a preparatory step in the filing of a verified return as required by A.M. No. 07-9-12-SC. The AFP was therein also directed to immediately coordinate with the PNP, NBI, DOJ and other government agencies in the attainment of the desired actions in the event a petition is filed. Said policy directive was contained in his Memorandum dated October 31, 2007 to the Chief of Staff, AFP, and there is no reason for him to doubt that the AFP will comply with it insofar as the present petition for writ of amparo is concerned.9 Secretary Puno confirmed receipt of a copy of the petition and said he will write to the PNP Chief to call for pertinent reports relative to the circumstances of the alleged "taking" of the person in whose favor the writ ofamparo was sought. He undertook to make available any report he will receive from the PNP on the matter.10 NSA Gonzales asserted that as a public officer, he is presumed to have performed his duties in accordance with law, which presumption remains undisturbed amid gratuitous assumptions and conclusions in the petition devoid of factual and legal basis. Upon receipt of a copy of the petition, he caused to be issued letters/communications to the Director General of the National Intelligence Coordinating Agency, the PNP Chief and the AFP Chief of Staff for the purpose of making active inquiries and establishing the circumstances of the alleged disappearance insofar as the possible involvement of military/police personnel is concerned. He undertook to provide the material results of investigations conducted or to be conducted by the concerned agencies.11 General Yano narrated that prior to the receipt of a copy of the petition, he received a memorandum from the Department of National Defense transmitting the letter of Bayan Muna Representative Teodoro A. Casio inquiring about the alleged abduction of James Balao. On the basis of said memo, he directed by radio message the NOLCOM Commander to conduct a thorough investigation on the matter and to submit the result thereof to the AFP General Headquarters. This was also done in compliance with the Policy Directive issued by Defense Secretary Teodoro. He reiterated his October 6, 2008 directive to the PA Commanding General in another radio message dated October 16, 2008. He undertook to provide the court with material results of the investigations conducted by the concerned units as soon as the same are received by Higher Headquarters.12 Lt. Gen. Cachuela said that even prior to the receipt of a copy of the petition, he was already directed by Higher Headquarters to conduct a thorough investigation on the alleged abduction of James Balao. Acting on said directive, he in turn directed the 5th Infantry Division, PA to investigate the matter since the place of the commission of the abduction is within its area of responsibility. He

undertook to furnish the court with a copy of the result of the investigation conducted or to be conducted, as soon as NOLCOM receives the same.13 BGen. Mapagu on his part declared that there is nothing in the allegations of the petition that would show the involvement of the PA in the reported disappearance of James Balao. He claimed that he immediately called the attention of the "concerned staff" to give some information regarding the case and directed them to submit a report if they are able to obtain information.14 Pol. Dir. General Verzosa set forth the actions and steps taken by the PNP, particularly the PNP Regional Office-Cordillera (PRO-COR) headed by PCSupt. Eugene Martin, being the lead PNP unit investigating the case of James Balao.15 Pol. Chief Supt. Martin recounted that in the afternoon of September 17, 2008, CPA Chairperson Beverly Longid called up and informed him of the disappearance of James. On September 20, 2008, he was informed that James was allegedly missing and immediately ordered the Office of the Regional Intelligence Division (RID) to send flash alarm to all lower units to look for and locate James Balao. This was followed by a Memorandum with his picture and description. Upon his orders, Police Station 1 of the Baguio City Police Office (BCPO) immediately conducted inquiries at the boarding house of James at Barangay Fairview, Baguio City. Likewise, he ordered the creation of Task Force Balao to fast track the investigation of the case. He further instructed the RID to exert all efforts and supervise all lower units to intensify their investigation and ascertain the whereabouts and other circumstances surrounding the disappearance of James. Results of the investigations conducted were set forth in his affidavit. He had constant coordination with the CPA leaders and Balao family who divulged the plate numbers of vehicles allegedly observed by James prior to his disappearance as conducting surveillance on his person. Upon verification with the Land Transportation Office, the said vehicles were found to be registered under the following persons: TNH 787 Narciso Magno of #20 Darasa, Tanauan, Batangas; and USC 922 G & S Transport Corp. On October 6, 2008, he received information regarding an abduction incident in Tomay, La Trinidad whereupon he ordered the Provincial Director of Benguet to conduct an in-depth investigation; said investigation disclosed that the person abducted was indeed James. On October 8, 2008, Task Force Balao with the help of the CPA and Balao family were able to convince two witnesses in the abduction incident in Tomay, La Trinidad, Benguet to shed light on the incident; as a result, cartographic sketches of the suspects were made. In the morning of October 9, 2008, he presided over a dialogue which was attended by the Group Commander, MIG1 and Commanding Officer of ISU, ISG and PA, for the coordinated efforts to locate James. In the afternoon of the same day, he met with the family and relatives of James to inform them of initial efforts and investigation of the case. The Task Force Balao was also able to secure the affidavits of witnesses Aniceto Dawing and Vicky Bonel, and invited some members of the CPA who retrieved Jamess personal belongings in Fairview, Baguio City and his companions prior to his disappearance on September 17, 2008 to appear before the Task Force Balao for some clarifications but none of them appeared. The case is still under follow-up and continuing investigation to know what really happened, identify the abductors, determine the real motive for the abduction and file the necessary charges in court against those responsible.16 Also attached to the Return are the more detailed reports (with attached affidavits of other witnesses) dated October 14, 2008 and October 6, 2008 submitted by Task Force Balao Commander P/S Supt. Fortunato B. Albas to the PNP Cordillera Regional Director. Pertinent portions of the two reports read:

xxxx 2. Inquiries conducted from Mr. Zusimo Unarosa, a resident of Nr 126, Purok 3, Central Fairview, Baguio City, claimed that on the 1st week of September 2008, he frequently observed two (2) unidentified male persons aged 50-70 years old and about 51" to 55" in height, bringing boxes from the house, the contents of which could not be determined. However, averred that these two (2) male personalities are not familiar in the barangay. He further stated that he had never seen a van conducting surveillance on the house and have not heard of any incident of kidnapping or abduction in the community. 3. Mr[.] Anselmo Alukim, a neighbor, residing adjacent to the house of the subject, when interviewed, averred that he observed some unidentified male and female persons visiting the said house. 4. Interview conducted on Mr[.] Danny Griba, a resident of said barangay averred that James Balao is not a resident or occupant of the said house and claimed that he only saw the subject last summer and stated there are five (5) unidentified persons occupying the said house. He further stated that three (3) male persons aged 40 to 50 years old and a female aged between 20-30 years old goes out during day time with several boxes and returns at about 6:00 PM to 7:00 PM on board a taxi cab again with some boxes of undetermined contents. 5. Mrs[.] Corazon Addun, resident of Nr 114, Purok 3, Central Fairview, Baguio City averred that the subject is not residing in the said place and saw him only once, sometime on April 2008. She further narrated that a certain Uncle John aged 40 to 50 years old and a male person aged 20 to 30 are among the occupants of said house. Accordingly, on September 21, 2008, Uncle John went to the house of Mrs. Addun and over a cup of coffee told her that he will be going to Sagada, Mountain Province purposely to locate a missing colleague who was sent there. Accordingly[,] he received a phone call that his missing colleague (James Balao) did not reach the municipality and reported missing. After that short talk, she never saw Uncle John again. Additionally, she did not notice any vehicle conducting surveillance therein and any unusual incidents that transpired in said place. xxxx 7. This office has likewise coordinated with MIG-1 and ISU, ISG, PA but both offices denied any knowledge on the alleged abduction of James Balao. 8. It was found out that it was SPO4 Genero Rosal, residing within the vicinity, who followed-up the incident because it was reported to him by his neighbors. That after he learned about [James abduction], he contacted PDEA, La Trinidad PS, RID ad Intel BPPO to verify if they had an operation in Tomay, La Trinidad but all of them answered negative. x x x x17 xxxx 3. A photocopy of the photograph of James Balao was presented to the witnesses wherein they confirmed that the picture is the same person who was arrested and handcuffed.

Another witness divulged that prior to the arrest of the person in the picture/photograph, a red motorcycle with two (2) male riders allegedly conducted surveillance along the highway about ten (10) meters away from the place where the victim was picked-up. Minutes later, a white Mitsubishi Adventure arrived and took the victim inside the car. The motorcycle riding in tandem followed the Mitsubushi Adventure en route to Camp Dangwa, La Trinidad, Benguet. Another witness overheard one of the abductors instructing the driver to quote "pare sa Camp Dangwa tayo." 4. Follow[-]up investigation resulted in the identification of a certain "KULOT" who also witnessed the alleged abduction. However, he was hesitant to talk and instead pointed to the driver of the delivery van of Helens Bread. At about 8:30 AM of October 9, 2008, Aniceto Dawing Jr[.] y Gano, the driver of the delivery van of Helens Bread, surfaced and gave his statements on what he witnessed on the alleged abduction. 5. On October 12, 2008, one Vicky Bonel y Felipe, 19 years old, single, native of Atok, Benguet, resident of Tomay, LTB and store keeper of Saymor[s] Store appeared before the office of Benguet PPO and gave her sworn statement on the alleged abduction. A cartographic sketch was made on the person who identified himself as policeman. She further stated that it was when while she was tending her brother-in-laws store, gunwielding men, of about six or more, handcuffed and shove the victim inside their vehicle. She recalled that she can recognize the abductors if she can see them again. 6. Another witness stated that she was preparing her merchandise in the waiting shed of Lower Tomay when she noticed a parked motorcycle beside the elementary school at about 7:00 AM of September 17, 2008. The rider of the bike was suspiciously scouring the area and kept on calling someone from his cellular phone before the abduction was made. 7. Baguio City Police Office conducted follow-up investigation and were able to secure affidavit of Florence Luken y Mayames, 47 years old, married, and a resident of 135 Central Fairview averred that James Balao together with a certain Uncle John about 65-75 years old, about 54" in height and a certain Rene about 30-35 years old and stands 55", were her neighbors for almost one year. She further stated that James Balao and company do not mingle with their neighbors and only one person is usually left behind while James and Rene goes out at 6:00 or 7:00 AM and goes back at around 6:00 or 7:00 PM. She further averred that she did not notice any van or any kind of vehicle parked along the roadside infront of any residence not his neighbors nor any person or persons observing the occupants of the said house. Accordingly, at around 1:00 PM of September 26, 2008, a closed van (Ca[n]ter) with unknown plate number was seen parked infront of the said house and more or less (10) unidentified male person[s] aging from 20-23 and an unidentified female entered the alleged rented house of James Balao and took some table, chairs and cabinets then left immediately to unknown destination. 8. Mrs[.] Mina Cabati Serdan the owner of the house being rented by James Balao averred that sometime May of 2007, a certain Mr[.] June, a realtor agent, recommended to her that a certain James Balao will rent the house for one (1) year term with an agreed monthly rent of fifteen thousand pesos (P15,000.00). She stated that James Balao had extended his stay for almost 4 months. On the last week of August 2008, Mrs[.] Serdan called up James Balao through phone to inform him that she will terminate his stay at the rented house on

September 30, 2008. Mrs[.] Serdan further stated that [she]visited the rented house only twice and that was the only time she saw James Balao with an unidentified companions. That she only discovered that James Balao was missing when a certain Carol informed her that he was missing. [Sh]e further stated that she visited her house and found out that the said occupants have already left on September 26, 2008 and discovered that all personal belongings of the occupants have already been taken out by the relatives. xxxx VI. ACTIONS TAKEN: 1. That a composite team "TASK FORCE BALAO" from this office and the Regional Headquarters headed by [P/S SUPT] FORTUNATO BASCO ALBAS was formed. 2. That the composite team of investigators conducted ocular inspection on the area. 3. On October 8, 2008, two (2) witnesses namely: Marjore Domingo Hipolito and Jenny Lynn Malondon Valdez gave their sworn statements and cartographic sketch of one of the abductors. 4. On the morning of October 9, 2008, a dialogue was presided by RD, PRO-COR and attended by the Group Commander, MIG1 and Commanding Officer of ISU, SG, PA. Both commanders denied the accusations against them. 5. In the afternoon of the same day, a meeting with the family and relatives of James Balao was again presided by RD, PRO-COR wherein the results of the initial efforts and investigation were given to the family. He also reported the surfacing of another two (2) witnesses who described the suspect who handcuffed James Balao. 6. PRO-Cordillera wrote a letter to the Cordillera Peoples Alliance requesting them to present Uncle John, Rene and his other companions who are then residing in the same boarding house including all his companions on September 17, 2008 and prior to his disappearance. REMARKS: Case is still under follow-up investigation to identify the alleged abductors to determine the real motive of the abduction and to file necessary charges against them in court.18 During the hearing, the affidavits and testimonies of the following witnesses were presented by petitioners: Aniceto Dawing19 testified that on September 17, 2008, around 8:00 in the morning, while he was delivering bread at Saymors Store in Tomay, La Trinidad, Benguet, a white van stopped infront of them and five armed men alighted. The armed men, who introduced themselves as policemen in Filipino, held and pointed a gun at one male person. The armed men told the male person that he was being apprehended for illegal drugs. They then let the male person board the vehicle and informed him that they will proceed to Camp Dangwa. Dawing admitted that he did not know that it

was James whom he saw that time and came to know only of his identity when he saw a poster bearing Jamess photograph. On cross-examination, he stated that the white van did not have any markings that it was a police vehicle and that the armed men were in civilian clothes and did not wear any police badges or identification cards. He just assumed that they were policemen because of their posture and haircut and because they introduced themselves as such. Anvil Lumbag stated in his affidavit20 that he was also at Saymors Store in the morning of September 17, 2008 to buy chicken. He said that a ToyotaRevo stopped infront of the store from where four men alighted. The men handcuffed a man who was standing infront of the store and uttered "Walang makikialam, drugs kaso nito" while pointing a gun at the said man. Then, they forced the man to board the Revo. Before the Revo fled, Lumbag heard one of the men say that they will be going to Camp Dangwa. Lumbags affidavit, however, did not mention if it was James who was forcibly taken by the armed men. Beverly Longid21 testified that she got to know James when she was a member of the CPA youth organization in her student days. Every time James will have an activity that is CPA-related, he would coordinate with Beverly, she being the CPA chair. She also testified that prior to his disappearance, the last time she talked with James was in July or August of 2008 when he reported surveillances on his person by the PNP and the AFP. In her affidavit, she alleged that James reported to her several vehicles tailing him, one of which was a green van with plate number USC 922, the same plate number she had seen at the Intelligence Security Unit in Navy Base, Baguio City, and which was attached to a silver grey van. Beverly admitted that at the time of the alleged abduction, she was in Baguio City, at the Office of the Cordillera Peoples Legal Center and that she only came to know that James was missing in the afternoon of September 18, 2008. She also confirmed that they met with Pol. Supt. Martin to seek assistance regarding Jamess disappearance. Nonette Balao22 testified that she was at her bakeshop located in Km. 4, La Trinidad, Benguet in the morning of September 17, 2008. At around 6:30 a.m., she received a text message from James saying that he will be going home to their ancestral home to do some laundry. Thirty minutes later, she received another text message from James saying that he was already leaving his place in Fairview, Baguio City. When around 8:00 a.m. James had not yet arrived at their ancestral home, she got worried. She texted him but failed to get a reply, so she tried to call him. His phone, however, had already been turned off. She then called the CPA office to check if James was there. She was told that he was not there so she went to Jamess house in Fairview at around 9:00 a.m. Jamess housemates, however, told her that he left at 7:00 a.m. Nonette also testified that they only reported Jamess disappearance to the police on September 20, 2008 because they thought that it was necessary that a person be missing for at least 48 hours before the disappearance could be reported. They went to Sub-Station Police Precinct No. 1 in Baguio and to the police precinct in La Trinidad to report the matter. They also went to Camp Dangwa to see if James was there. Nonette claimed that she became worried because James never switched off his mobile phone and since he already texted her that he was coming home, he could have texted again if there was a change of plans. Also, James had told them since April 2008 that he had been under surveillance. She does not know why James went to Tomay, La Trinidad.

Samuel Anongos stated in his affidavit23 that he is a member of the Education Commission of the CPA. He claimed that when they conducted trainings and educational discussions on mining education in Abra, members of the AFP harassed the community and committed various human rights violations. The AFP also allegedly held community meetings where they said that the CPA is part of the New Peoples Army. Attached to Anongoss affidavit is a copy of a paper that the AFP was allegedly distributing. It shows the organizational structure of the Communist Party of the Philippines-New Peoples Army (CPP-NPA) wherein CPA was identified as one of the organizations under the National Democratic Front (NDF).24 RTC Ruling On January 19, 2009, the RTC issued the assailed judgment, disposing as follows: IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered: ISSUE a Writ of Amparo Ordering the respondents to (a) disclose where James Balao is detained or confined, (b) to release James Balao considering his unlawful detention since his abduction and (c) to cease and desist from further inflicting harm upon his person; and DENY the issuance of INSPECTION ORDER, PRODUCTION ORDER and WITNESS PROTECTION ORDER for failure of herein Petitioners to comply with the stringent provisions on the Rule on the Writ of Amparo and substantiate the same.25 In denying respondents prayer that President Arroyo be dropped as party-respondent, the RTC held that a petition for a writ of amparo is not "by any stretch of imagination a niggling[,] vexing or annoying court case"26from which she should be shielded. The RTC ruled that said petition is nothing more than a tool to aid the president to guarantee that laws on human rights are devotedly and staunchly carried out. It added that those who complain against naming the president as partyrespondent are only those who "either do not understand what the Writ of Amparo is all about or who do not want to aid Her Excellency in her duty to supervise and control the machinery of government."27 In upholding the standing of Jamess siblings and Beverly to file the petition, the RTC held that what Section 2 of the Rule on the Writ of Amparorules out is the right to file similar petitions, meaning there could be no successive petitions for the issuance of a writ of amparo for the same party. The RTC further held that "more likely than not," the motive for Jamess disappearance is his activist/political leanings and that Jamess case is one of an enforced disappearance as defined under the Rule on the Writ of Amparo. In so ruling, the RTC considered (1) the several incidents of harassment mentioned in Beverlys testimony and enumerated in the petition; and (2) the references in the petition to the CPA as a front for the CPP-NPA. The RTC likewise ruled that the government unmistakably violated Jamess right to security of person. It found the investigation conducted by respondents as very limited, superficial and onesided. The police and military thus miserably failed to conduct an effective investigation of Jamess abduction as revealed by the investigation report of respondents own witnesses, Supt. Martin and P/S Supt. Fortunato Basco Albas, the Commander of Task Force Balao. It further noted that respondents did not investigate the military officials believed to be behind the abduction as said military officials were merely invited to a dialogue and there was no investigation made in Camp

Dangwa where the abductors were believed to have taken James as narrated by the witnesses. Moreover, the RTC observed that despite the undertaking of respondents to investigate the abduction and provide results thereof, four months have passed but petitioners have not been furnished reports regarding the investigation. As to the denial of the interim reliefs, the RTC stated that the stringent provisions of the rules were not complied with and granting said reliefs might violate respondents constitutional rights and jeopardize State security. Both parties appealed to this Court. The Consolidated Petitions Petitioners, in G.R. No. 186050, question the RTCs denial of the interim reliefs. Respondents, on the other hand, assail in their petition in G.R. No. 186059, the issuance of the writ of amparo. They raise the following arguments: I THE TRIAL COURTS JUDGMENT ORDERING RESPONDENT-PETITIONERS TO: (A) DISCLOSE WHERE JAMES BALAO IS DETAINED AND CONFINED; (B) TO RELEASE JAMES BALAO CONSIDERING HIS UNLAWFUL DETENTION SINCE HIS "ABDUCTION" AND (C) TO CEASE AND DESIST FROM FURTHER INFLICTING HARM UPON HIS PERSON IS BASED PURELY ON CONJECTURES, SURMISES AND HEARSAY EVIDENCE; HENCE, IT MUST BE SET ASIDE. II RESPONDENT-PETITIONERS HAD PROVEN THAT THEY OBSERVED EXTRAORDINARY DILIGENCE AS REQUIRED BY APPLICABLE LAWS, RULES AND REGULATIONS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. III THE FACTUAL CIRCUMSTANCES AND THE EVIDENCE PRESENTED IN THE MANALO CASE ARE TOTALLY DIFFERENT FROM THE CASE AT BAR; HENCE, THE TRIAL COURT GROSSLY ERRED IN APPLYING THE RULING THEREIN TO THE CASE AT BAR. IV THE TRIAL COURT CORRECTLY DENIED PETITIONER-RESPONDENTS PRAYER FOR THE ISSUANCE OF AN INSPECTION ORDER, PRODUCTION ORDER AND A WITNESS PROTECTION ORDER.28 Our Ruling

The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of "extralegal killings" and "enforced disappearances." It was formulated in the exercise of this Courts expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the 1987 Constitution, albeit limited to these two situations. "Extralegal killings" refer to killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.29 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 person outside the protection of law.30 Section 18 of the Amparo Rule provides: 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 threshold issue in this case is whether the totality of evidence satisfies the degree of proof required by the Amparo Rule to establish an enforced disappearance. In granting the privilege of the writ of amparo, the trial court ratiocinated: On record is evidence pointing to the more likely than not motive for James Balaos disappearance his activist/political leanings. This is shown by the several incidents relating to harassments of activists as mentioned in the unrebutted testimony of Beverly Longid and the enumeration made in par. 48 (a) to (cc) of the petition. There were also references in the petitions pars. 52 et. seq. to the CPA (of which James Balao was an active staff) as a front organization of the Communist Party of the Philippines-New Peoples Army. More likely than not he was not taken to parts unknown for reasons other than his involvement in the CPA, that is, politically-motivated. The Court considers these facts enough circumstances to establish substantial evidence of an enforced disappearance as defined under the Rule on the Writ of Amparo. For after all, substantial evidence requires nothing greater than "more likely than not" degree of proof.31 (Emphasis supplied.) The trial court gave considerable weight to the discussion in the petition of briefing papers supposedly obtained from the AFP (Oplan Bantay-Laya implemented since 2001) indicating that the anti-insurgency campaign of the military under the administration of President Arroyo included targeting of identified legal organizations under the NDF, which included the CPA, and their members, as "enemies of the state." The petition cited other documents confirming such "all-out war" policy which resulted in the prevalence of extrajudicial killings: namely, the published reports of the Melo Commission and the UNHRCs Special Rapporteur on Extrajudicial Summary or Arbitrary Executions, Mr. Philip Alston. The petition also enumerated previously documented cases of extralegal killings of activists belonging to militant groups, including CPA leaders and workers, almost all of which have been preceded by surveillance by military or police agents and acts of harassment. Consequently, petitioners postulated that the surveillance on James and his subsequent abduction are interconnected with the harassments, surveillance, threats and political assassination of other members and officers of CPA which is his organization.

We hold that such documented practice of targeting activists in the militarys counter-insurgency program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an enforced disappearance. In the case of Roxas v. Macapagal-Arroyo,32 the Court noted that the similarity between the circumstances attending a particular case of abduction with those surrounding previous instances of enforced disappearances does not, necessarily, carry sufficient weight to prove that the government orchestrated such abduction. Accordingly, the trial court in this case cannot simply infer government involvement in the abduction of James from past similar incidents in which the victims also worked or affiliated with the CPA and other left-leaning groups. The petition further premised government complicity in the abduction of James on the very positions held by the respondents, stating that -The abduction of James Balao can only be attributed to the Respondents who have command responsibility of all the actions of their subordinates and who are the primary persons in the implementation of the governments all out war policy.33 (Emphasis supplied.) The Court in Rubrico v. Macapagal-Arroyo34 had the occasion to expound on the doctrine of command responsibility and why it has little bearing, if at all, in amparo proceedings. The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict." In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility, foreshadowing the presentday precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is "an omission mode of individual criminal liability," whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators (as opposed to crimes he ordered). The doctrine has recently been codified in the Rome Statute of the International Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military commanders for crimes committed by forces under their control. The country is, however, not yet formally bound by the terms and provisions embodied in this treaty-statute, since the Senate has yet to extend concurrence in its ratification. While there are several pending bills on command responsibility, there is still no Philippine law that provides for criminal liability under that doctrine. It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution. Still, it would be inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for individual respondents criminal liability, if there be any,

is beyond the reach of amparo. In other words, the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. As the Court stressed in Secretary of National Defense v. Manalo (Manalo), the writ of amparo was conceived to provide expeditious and effective procedural relief against violations or threats of violation of the basic rights to life, liberty, and security of persons; the corresponding amparo suit, however, "is not an action to determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability requiring substantial evidence that will require full and exhaustive proceedings." Of the same tenor, and by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis: It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extrajudicial killings]; it determines responsibility, or at least accountability, for the enforced disappearance [threats thereof or extrajudicial killings] for purposes of imposing the appropriate remedies to address the disappearance [or extrajudicial killings]. xxxx As the law now stands, extrajudicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal x x x are matters of substantive law that only the Legislature has the power to enact. x x x35 Subsequently, we have clarified that the inapplicability of the doctrine of command responsibility in an amparo proceeding does not, by any measure, preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. Commanders may therefore be impleadednot actually on the basis of command responsibilitybut rather on the ground of their responsibility, or at least accountability.36 In Razon, Jr. v. Tagitis,37 the Court defined responsibility and accountability as these terms are applied to amparo proceedings, as follows: x x x 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. x x x38(Emphasis supplied.) Assessing the evidence on record, we find that the participation in any manner of military and police authorities in the abduction of James has not been adequately proven. The identities of the abductors have not been established, much less their link to any military or police unit. There is likewise no concrete evidence indicating that James is being held or detained upon orders of or

with acquiescence of government agents. Consequently, the trial court erred in granting amparo reliefs by ordering the respondent officials (1) to disclose where James Balao is detained or confined, (2) to release him from such detention or confinement, and (3) to cease and desist from further inflicting harm upon his person. Such pronouncement of responsibility on the part of public respondents cannot be made given the insufficiency of evidence.39 However, we agree with the trial court in finding that the actions taken by respondent officials are "very limited, superficial and onesided." Its candid and forthright observations on the efforts exerted by the respondents are borne by the evidence on record, thus: x x x the violation of the right to security as protection by the government is unmistakable. The police and the military miserably failed in conducting an effective investigation of James Balaos abduction as revealed by the investigation report of respondents own witnesses Honorable Chief Superintendent Eugene Martin and Honorable Senior Superintendent Fortunato Albas. The investigation was to use the words in The Secretary of National Defense, et. al., v. Manalo et. al. "verylimited, superficial and one-sided." The actions taken were simply these: (a) organization of the "Task Force Balao"; (b) conduct of ocular inspection at the place of abduction; (c) taking of sworn statements of civilian witnesses, whose testimonies did not prove much as shown by the continued disappearance of James Balao; (d) dialogue with implicated military officials as well as family members and friends of James Balao; and (e) writing of letter to the CPA. The Court does not want to second-guess police protocols in investigation but surely some things are amiss where the investigation DID NOT INVESTIGATE the military officials believed to be behind the abduction as they were merely invited to a dialogue and where the investigation DID NOT LEAD to Camp Dangwa where the abductors were supposed to have proceeded as narrated by the witnesses. To the mind of this Court, there is a seeming prejudice in the process of investigation to pin suspects who are not connected with the military establishments. By any measure, this cannot be a thorough and good faith investigation but one that falls short of that required by the Writ of Amparo.40 Respondents reiterate that they did their job the best they could and fault the petitioners instead for their non-cooperation which caused delay in the investigation. They particularly blamed Beverly who failed to attend the October 15, 2008 invitation to appear before the investigators and shed light on Jamess disappearance. We are not persuaded. First, the Task Force Balao had acknowledged the fact that Pol. Chief Supt. Martin was already in constant coordination with the Balao family and CPA, and hence the investigators could have readily obtained whatever information they needed from Beverly. Pol. Chief Supt. Martin even mentioned in his affidavit that Task Force Balao was able to secure the testimonies of two eyewitnesses with the help of Beverly and the Balao family, and that as a result cartographic sketches were made of some suspects.41 Moreover, Beverly had explained during the crossexamination conducted by Associate Solicitor Paderanga that she was at the time coordinating with national and local agencies even as the police investigation was ongoing.42 There is nothing wrong with petitioners simultaneous recourse to other legal avenues to gain public attention for a possible enforced disappearance case involving their very own colleague. Respondents should even commend such initiative that will encourage those who may have any information on the identities and whereabouts of Jamess abductors to help the PNP in its investigation.

Assuming there was reluctance on the part of the Balao family and CPA to submit Jamess relatives or colleagues for questioning by agents of the PNP and AFP, they cannot be faulted for such stance owing to the militarys perception of their organization as a communist front: ergo, enemies of the State who may be targeted for liquidation. But more important, such non-cooperation provides no excuse for respondents incomplete and one-sided investigations. As we held in Rubrico v. Macapagal-Arroyo43 : As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct or indirect hand in the alleged enforced disappearance of Lourdes and the threats against her daughters. As police officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty that would include looking into the cause, manner, and like details of the disappearance; identifying witnesses and obtaining statements from them; and following evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and securing and preserving evidence related to the abduction and the threats that may aid in the prosecution of the person/s responsible. As we said in Manalo, the right to security, as a guarantee of protection by the government, is breached by the superficial and one-sidedhence, ineffectiveinvestigation by the military or the police of reported cases under their jurisdiction. As found by the CA, the local police stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a preliminary factfinding on petitioners complaint. They could not, however, make any headway, owing to what was perceived to be the refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided a plausible explanation for his clients and their witnesses attitude, "[They] do not trust the government agencies to protect them.The difficulty arising from a situation where the party whose complicity in extrajudicial killing or enforced disappearance, as the case may be, is alleged to be the same party who investigates it is understandable, though. The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end. To repeat what the Court said in Manalo, the right to security of persons is a guarantee of the protection of ones right by the government. And this protection includes conducting effective investigations of extra-legal killings, enforced disappearances, or threats of the same kind. The nature and importance of an investigation are captured in theVelasquez Rodriguez case, in which the Inter-American Court of Human Rights pronounced: "[The duty to investigate] must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not a step taken by private interests that depends upon the initiative of the victim or his family or upon offer of proof, without an effective search for the truth by the government."44 (Emphasis supplied.)1avvphi1 Indeed, why zero in on Jamess own kin and colleagues when independent eyewitnesses already provided firsthand accounts of the incident, as well as descriptions of the abductors? With the cartographic sketches having been made from interviews and statements of witnesses, the police investigators could have taken proper steps to establish the personal identities of said suspects and yet this was not done, the police investigators not even lifting a finger to ascertain whether the cartographic sketches would match with any enlisted personnel of AFP and PNP, or their civilian agents/assets. As to the vehicles, the plate numbers of which have earlier been disclosed by James to his family and the CPA as used in conducting surveillance on him prior to his abduction, the military merely denied having a vehicle with such plate number on their property list despite the

fact that the same plate number (USC 922) was sighted attached to a car which was parked at the PA-ISU compound in Navy Base, Baguio City. As to the other plate number given by James (TNH 787), while the police investigators were able to verify the name and address of the registered owner of the vehicle, there is no showing that said owner had been investigated or that efforts had been made to locate the said vehicle. Respondents insistence that the CPA produce the alleged companions of James in his rented residence for investigation by the PNP team, while keeping silent as to why the police investigators had not actively pursued those evidentiary leads provided by eyewitnessesand the Balao family, only reinforce the trial courts observation that the investigators are seemingly intent on building up a case against other persons so as to deflect any suspicion of military or police involvement in James Balaos disappearance. In view of the foregoing evidentiary gaps, respondents clearly failed to discharge their burden of extraordinary diligence in the investigation of Jamess abduction. Such ineffective investigation extant in the records of this case prevents us from completely exonerating the respondents from allegations of accountability for James disappearance. The reports submitted by the PNP Regional Office, Task Force Balao and Baguio City Police Station do not contain meaningful results or details on the depth and extent of the investigation made. In Razon, Jr. v. Tagitis, the Court observed that such reports of top police officials indicating the personnel and units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for the victim.45 In the same case we stressed that the standard of diligence required the duty of public officials and employees to observe extraordinary diligence called for extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extra-judicial killings and enforced disappearance cases. As to the matter of dropping President Arroyo as party-respondent, though not raised in the petitions, we hold that the trial court clearly erred in holding that presidential immunity cannot be properly invoked in an amparo proceeding. As president, then President Arroyo was enjoying immunity from suit when the petition for a writ of amparo was filed. Moreover, the petition is bereft of any allegation as to what specific presidential act or omission violated or threatened to violate petitioners protected rights.46 In order to effectively address thru the amparo remedy the violations of the constitutional rights to liberty and security of James who remains missing to date, the Court deems it appropriate to refer this case back to the trial court for further investigation by the PNP and CIDG and monitoring of their investigative activities that complies with the standard of diligence required by the Amparo Rule. Section 24 of Republic Act No. 6975, otherwise known as the "PNP Law"47 specifies the PNP as the governmental office with the mandate to "[i]nvestigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution." The trial court should further validate the results of such investigations and actions through hearings it may deem necessary to conduct. Lastly, on the denial of the prayer for interim reliefs under the Amparo Rule. An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in order to aid the court before making a decision.48 A basic requirement before an amparo court may grant an inspection order is that the place to be inspected is reasonably determinable from the allegations of the party seeking the order.49 In this case, the issuance of inspection order was properly denied since the petitioners specified several military

and police establishments based merely on the allegation that the testimonies of victims and witnesses in previous incidents of similar abductions involving activists disclosed that those premises were used as detention centers. In the same vein, the prayer for issuance of a production order was predicated on petitioners bare allegation that it obtained confidential information from an unidentified military source, that the name of James was included in the so-called Order of Battle. Indeed, the trial court could not have sanctioned any "fishing expedition" by precipitate issuance of inspection and production orders on the basis of insufficient claims of one party. Nonetheless, the trial court is not precluded, as further evidence warrants, to grant the above interim reliefs to aid it in making a decision upon evaluation of the actions taken by the respondents under the norm of extraordinary diligence. WHEREFORE, the petitions in G.R. Nos. 186050 and 186059 are PARTLY GRANTED. The Judgment dated January 19, 2009 of the Regional Trial Court of La Trinidad, Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001 is MODIFIED as follows: 1) REVERSING the grant of the privilege of the writ of amparo; 2) AFFIRMING the denial of the prayer for inspection and production orders, without prejudice to the subsequent grant thereof, in the course of hearing and other developments in the investigations by the Philippine National Police/Philippine National Police Criminal Investigation and Detection Group and the Armed Forces of the Philippines; 3) ORDERING the incumbent Chief of Staff of the Armed Forces of the Philippines, or his successor, and the incumbent Director General of the Philippine National Police, or his successor, to CONTINUE the investigations and actions already commenced by the Philippine National Police Regional OfficeCordillera, Baguio City Police, Northern Luzon Command, Philippine National Police/Philippine National Police Criminal Investigation and Detection Group, Philippine Army-Intelligence Service Unit and other concerned units, and specifically take and continue to take the necessary steps: (a) to identify the persons described in the cartographic sketches submitted by Task Force Balao; (b) to locate and search the vehicles bearing the plate numbers submitted by the petitioners and which James Balao had reported to be conducting surveillance on his person prior to his abduction on September 17, 2008, and investigate the registered owners or whoever the previous and present possessors/transferees thereof; and to pursue any other leads relevant to the abduction of James Balao; The incumbent Armed Forces of the Philippines Chief of Staff, Philippine National Police Director General, or their successors, shall ensure that the investigations and actions of their respective units on the abduction of James Balao are pursued with extraordinary diligence as required by Sec. 17 of the Amparo Rule. For purposes of these investigations, the Philippine National Police/Philippine National Police Criminal Investigation and Detection Group shall periodically report the detailed results of its investigation to the trial court for its consideration and action. On behalf of this Court, the trial court shall pass upon the sufficiency of their investigative efforts. The

Philippine National Police and the Philippine National Police Criminal Investigation and Detection Group shall have six (6) months from notice hereof to undertake their investigations. Within fifteen (15) days after completion of the investigations, the Chief of Staff of the Armed Forces of the Philippines and the DirectorGeneral of the Philippine National Police shall submit a full report of the results of the said investigations to the trial court. Within thirty (30) days thereafter, the trial court shall submit its full reportto this Court. These directives and those of the trial court made pursuant to this Decision shall be given to, and shall be directly enforceable against, whoever may be the incumbent Armed Forces of the Philippines Chief of Staff, Director General of the Philippine National Police and Chief of the Philippine National Police Criminal Investigation and Detection Group and other concerned units, under pain of contempt from this Court when the initiatives and efforts at disclosure and investigation constitute less than the EXTRAORDINARY DILIGENCE that the Amparo Rule and the circumstances of the case demand; and1awphi1 4) DROPPING former President Gloria Macapagal-Arroyo as party-respondent in the petition for writ of amparo; This case is hereby REMANDED to the Regional Trial Court of La Trinidad, Benguet, Branch 63 for continuation of proceedings in Special Proceeding No. 08-AMP-0001 for the purposes of monitoring compliance with the above directives and determining whether, in the light of any recent reports or recommendations, there would already be sufficient evidence to hold any of the public respondents responsible, or, at least, accountable. After making such determination, the trial court shall submit its own report and recommendation to this Court for final action. The trial court will continue to have jurisdiction over this case in order to accomplish its tasks under this decision; Accordingly, the public respondents shall remain personally impleaded in this petition to answer for any responsibilities and/or accountabilities they may have incurred during their incumbencies. No pronouncement as to costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 182165 November 25, 2009

P/SUPT. FELIXBERTO CASTILLO, POLICE OFFICERS ROMEO BAGTAS, RUPERTO BORLONGAN, EDMUNDO DIONISIO, RONNIE MORALES, ARNOLD TRIA, and GILBERTO PUNZALAN, ENGR. RICASOL P. MILLAN, ENGR. REDENTOR S. DELA CRUZ, MR. ANASTACIO L. BORLONGAN, MR.

ARTEMIO ESGUERRA, "TISOY," and JOHN DOES, Petitioners, vs. DR. AMANDA T. CRUZ, NIXON T. CRUZ, and FERDINAND T. CRUZ, Respondents. DECISION CARPIO MORALES, J.: Petitioners1 , employees and members of the local police force of the City Government of Malolos, challenge the March 28, 2008 Decision of the Regional Trial Court (RTC) of Malolos, Branch 10 in a petition for issuance of writs of amparo and habeas data instituted by respondents. The factual antecedents. Respondent Amanda Cruz (Amanda) who, along with her husband Francisco G. Cruz (Spouses Cruz), leased a parcel of land situated at Barrio Guinhawa, Malolos (the property), refused to vacate the property, despite demands by the lessor Provincial Government of Bulacan (the Province) which intended to utilize it for local projects. The Province thus filed a complaint for unlawful detainer against the Spouses Cruz before the then Municipal Trial Court (MTC) of Bulacan, Bulacan. By Decision of September 5, 1997, the MTC rendered judgment against the Spouses Cruz, which judgment, following its affirmance by the RTC, became final and executory. The finality of the decision in the ejectment case notwithstanding, the spouses Cruz refused to vacate the property. They thereupon filed cases against the Province2 and the judges who presided over the case.3 Those cases were dismissed except their petition for annulment of judgment lodged before Branch 18 of the RTC of Malolos, and a civil case for injunction 833-M-2004 lodged before Branch 10 of the same RTC Malolos. The Spouses Cruz sought in the case for injunction the issuance of a permanent writ of injunction to prevent the execution of the final and executory judgment against them. By Order of July 19, 2005, the RTC, finding merit in the Spouses Cruzes allegation that subsequent events changed the situation of the parties to justify a suspension of the execution of the final and executory judgment, issued a permanent writ of injunction, the dispositive portion of which reads: WHEREFORE, the foregoing petitioners Motion for Reconsideration of the Order dated August 10, 2004 is herebyGRANTED. Order dated August 10, 2004 is hereby RECONSIDERED and SET ASIDE. Further, the verified petition dated November 05, 2002 are hereby REINSTATED and MADE PERMANENT until the MTC-Bulacan, Bulacan finally resolves the pending motions of petitioners with the same determines the metes and bounds of 400 sq. meters leased premises subject matter of this case with immediate dispatch. Accordingly, REMAND the determination of the issues raised by the petitioners on the issued writ of demolition to the MTC of Bulacan, Bulacan. SO ORDERED.4 (Emphasis in the original; underscoring supplied)

Finding that the fallo of the RTC July 19, 2005 Order treats, as a suspensive condition for the lifting of the permanent injunction, the determination of the boundaries of the property, the Province returned the issue for the consideration of the MTC. In a Geodetic Engineers Report submitted to the MTC on August 31, 2007, the metes and bounds of the property were indicated. The MTC, by Order of January 2, 2008, approved the Report and ruled that the permanent injunction which the RTC issued is ineffective. On motion of the Province, the MTC, by Order of January 21, 2008, thus issued a Second Alias Writ of Demolition. On receiving notice of the January 2, 2008 MTC Order, the Spouses Cruz filed a motion before Branch 10 of the RTC for the issuance of a temporary restraining order (TRO) which it set for hearing on January 25, 2008 on which date, however, the demolition had, earlier in the day, been implemented. Such notwithstanding, the RTC issued a TRO.5 The Spouses Cruz, along with their sons-respondents Nixon and Ferdinand, thereupon entered the property, placed several container vans and purportedly represented themselves as owners of the property which was for lease. On February 21, 2008, petitioners Police Superintendent Felixberto Castillo et al., who were deployed by the City Mayor in compliance with a memorandum issued by Governor Joselito R. Mendoza instructing him to "protect, secure and maintain the possession of the property," entered the property. Amanda and her co-respondents refused to turn over the property, however. Insisting that the RTC July 19, 2005 Order of Permanent Injunction enjoined the Province from repossessing it, they shoved petitioners, forcing the latter to arrest them and cause their indictment for direct assault, trespassing and other forms of light threats. Respondents later filed on March 3, 2008 a "Respectful Motion-Petition for Writ of Amparo and Habeas Data," docketed as Special Civil Action No. 53-M-2008, which was coincidentally raffled to Branch 10 of the RTC Malolos. Respondents averred that despite the Permanent Injunction, petitioners unlawfully entered the property with the use of heavy equipment, tore down the barbed wire fences and tents,6 and arrested them when they resisted petitioners entry; and that as early as in the evening of February 20, 2008, members of the Philippine National Police had already camped in front of the property. On the basis of respondents allegations in their petition and the supporting affidavits, the RTC, by Order of March 4, 2008, issued writs of amparo and habeas data.7 The RTC, crediting respondents version in this wise: Petitioners have shown by preponderant evidence that the facts and circumstances of the alleged offenses examined into on Writs of Amparo and Habeas Data that there have been an on-going hearings on the verified Petition for Contempt, docketed as Special Proceedings No. 306-M-2006, before this Court for alleged violation by the respondents of the Preliminary Injunction Order dated July 16, 2005 [sic] in Sp. Civil Action No. 833-M-2002, hearings were held on January 25, 2008, February 12 and 19, 2008, where the respondents prayed for an April 22, 2008 continuance, however, in the pitch darkness of February 20, 2008, police officers, some personnel from the Engineering department, and some civilians proceeded purposely to the Pinoy Compound, converged therein and with continuing threats of bodily harm and danger and stone-throwing of

the roofs of the homes thereat from voices around its premises, on a pretext of an ordinary police operation when enterviewed [sic] by the media then present, but at 8:00 a.m. to late in the afternoon of February 21, 2008, zoomed in on the petitioners, subjecting them to bodily harm, mental torture, degradation, and the debasement of a human being, reminiscent of the martial law police brutality, sending chill in any ordinary citizen,8 rendered judgment, by Decision of March 28, 2008, in favor of respondents, disposing as follows: "WHEREFORE, premises considered, the Commitment Orders and waivers in Crim. Cases Nos. 0877 for Direct assault; Crim. Case No. 08-77 for Other Forms of Trespass; and Crim. Case No. 08-78 for Light Threats are hereby DECLARED illegal, null and void, as petitioners were deprived of their substantial rights, induced by duress or a well-founded fear of personal violence. Accordingly, the commitment orders and waivers are hereby SET ASIDE. The temporary release of the petitioners is declared ABSOLUTE. Without any pronouncement as to costs. SO ORDERED."9 (Emphasis in the original; underscoring supplied) Hence, the present petition for review on certiorari, pursuant to Section 1910 of The Rule on the Writ of Amparo (A.M. No. 07-9-12-SC),11 which is essentially reproduced in the Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC).12 In the main, petitioners fault the RTC for giving due course and issuing writs of amparo and habeas data when from the allegations of the petition, the same ought not to have been issued as (1) the petition in [sic] insufficient in substance as the same involves property rights; and (2) criminal cases had already been filed and pending with the Municipal Trial Court in Cities, Branch 1, City of Malolos. (Underscoring supplied) The petition is impressed with merit. The Court is, under the Constitution, empowered to promulgate rules for the protection and enforcement of constitutional rights.13 In view of the heightening prevalence of extrajudicial killings and enforced disappearances, the Rule on the Writ of Amparo was issued and took effect on October 24, 2007 which coincided with the celebration of United Nations Day and affirmed the Courts commitment towards internationalization of human rights. More than three months later or on February 2, 2008, the Rule on the Writ of Habeas Data was promulgated. Section 1 of the Rule on the Writ of Amparo provides: Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis and underscoring supplied) Section 1 of the Rule on the Writ of Habeas Data provides:

Section 1. Habeas Data. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (Emphasis and underscoring supplied) From the above-quoted provisions, the coverage of the writs is limited to the protection of rights to life, libertyand security. And the writs cover not only actual but also threats of unlawful acts or omissions. Secretary of National Defense v. Manalo14 teaches: As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof."Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.15 (Underscoring supplied, citations omitted) To thus be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, liberty and security is violated or threatened with an unlawful act or omission. Evidently, the present controversy arose out of a property dispute between the Provincial Government and respondents. Absent any considerable nexus between the acts complained of and its effect on respondents right to life, liberty and security, the Court will not delve on the propriety of petitioners entry into the property. Apropos is the Courts ruling in Tapuz v. Del Rosario:16 To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to wit: xxxx The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed.17 (Emphasis and italics in the original, citation omitted)

Tapuz also arose out of a property dispute, albeit between private individuals, with the petitioners therein branding as "acts of terrorism" the therein respondents alleged entry into the disputed land with armed men in tow. The Court therein held: On the whole, what is clear from these statements both sworn and unsworn is the overriding involvement of property issues as the petition traces its roots to questions of physical possession of the property disputed by the private parties. If at all, issues relating to the right to life or to liberty can hardly be discerned except to the extent that the occurrence of past violence has been alleged. The right to security, on the other hand, is alleged only to the extent of the treats and harassments implied from the presence of "armed men bare to the waist" and the alleged pointing and firing of weapons. Notably, none of the supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or continuing.18(Emphasis in the original; underscoring supplied) It bears emphasis that respondents petition did not show any actual violation, imminent or continuing threat to their life, liberty and security. Bare allegations that petitioners "in unison, conspiracy and in contempt of court, there and then willfully, forcibly and feloniously with the use of force and intimidation entered and forcibly, physically manhandled the petitioners (respondents) and arrested the herein petitioners (respondents)"19 will not suffice to prove entitlement to the remedy of the writ of amparo. No undue confinement or detention was present. In fact, respondents were even able to post bail for the offenses a day after their arrest.20 Although respondents release from confinement does not necessarily hinder supplication for the writ of amparo, absent any evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty, and/or that there exists threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be justified. That respondents are merely seeking the protection of their property rights is gathered from their Joint Affidavit, viz: xxxx 11. Kami ay humarang at humiga sa harap ng mga heavy equipment na hawak hawak ang nasabing kautusan ng RTC Branch 10 (PERMANENT INJUNCTION at RTC ORDERS DATED February 12, 17 at 19 2008) upang ipaglaban ang dignidad ng kautusan ng korte, ipaglaban ang prinsipyo ng "SELFHELP" at batas ukol sa "PROPERTY RIGHTS", Wala kaming nagawa ipagtanggol ang aming karapatan sa lupa na 45 years naming "IN POSSESSION." (Underscoring supplied) Oddly, respondents also seek the issuance of a writ of habeas data when it is not even alleged that petitioners are gathering, collecting or storing data or information regarding their person, family, home and correspondence. As for respondents assertion of past incidents21 wherein the Province allegedly violated the Permanent Injunction order, these incidents were already raised in the injunction proceedings on account of which respondents filed a case for criminal contempt against petitioners.22 Before the filing of the petition for writs of amparo and habeas data, or on February 22, 2008, petitioners even instituted a petition for habeas corpus which was considered moot and academic by Branch 14 of the Malolos RTC and was accordingly denied by Order of April 8, 2008.

More. Respondent Amanda and one of her sons, Francisco Jr., likewise filed a petition for writs of amparo andhabeas data before the Sandiganbayan, they alleging the commission of continuing threats by petitioners after the issuance of the writs by the RTC, which petition was dismissed for insufficiency and forum shopping. It thus appears that respondents are not without recourse and have in fact taken full advantage of the legal system with the filing of civil, criminal and administrative charges.231avvphi1 It need not be underlined that respondents petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute. At all events, respondents filing of the petitions for writs of amparo and habeas data should have been barred, for criminal proceedings against them had commenced after they were arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 11224 of the Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by respondents during trial and not before a petition for writs of amparo and habeas data. The reliefs afforded by the writs may, however, be made available to the aggrieved party by motion in the criminal proceedings.25 WHEREFORE, the petition is GRANTED. The challenged March 4, 2008 Order of Branch 10 of the Regional Trial Court of Malolos is DECLARED NULL AND VOID, and its March 28, 2008 Decision is REVERSED and SET ASIDE.Special Civil Action No. 53-M-2008 is DISMISSED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR:

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 184467 June 19, 2012

EDGARDO NAVIA,1 RUBEN

DIO,2 and ANDREW BUISING, Petitioners, vs. VIRGINIA PARDICO, for and in behalf and in representation of BENHUR V. PARDICO Respondent. DECISION DEL CASTILLO, J.: For the protective writ of amparo to issue in enforced disappearance cases, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown by the required quantum of proof that their disappearance was carried out by, "or with the authorization, support or acquiescence of, [the government] or a political organization, followed by a refusal to acknowledge [the same or] give information on the fate or whereabouts of [said missing] persons."3 This petition for review on certiorari4 filed in relation to Section 19 of A.M. No. 07-9-12SC5 challenges the July 24, 2008 Decision6 of the Regional Trial Court (RTC), Branch 20, Malolos City which granted the Petition for Writ of Amparo7 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 Corporation8 (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 invitation15 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 Amparo28before the RTC of Malolos City. Finding the petition sufficient in form and substance, the amparo court issued an Order29 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]-12SC, 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 Amparo31 was accordingly issued and served on the petitioners on June 27, 2008.32 On June 30, 2008, petitioners filed their Compliance33 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 statements34 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 Decision35 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 Reconsideration37 which was denied by the trial court in an Order38 dated August 29, 2008. Hence, this petition raising the following issues for our consideration: 4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY ERRED IN RULING THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO.

4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE COMMITTING ACTS IN VIOLATION OF HER HUSBANDS RIGHT TO LIFE, LIBERTY, OR SECURITY. 4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED THE FACT OF THE DISAPPEARANCE OF BENHUR PARDICO. 4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS AT THE INSTANCE OF HEREIN PETITIONERS.39 Petitioners Arguments Petitioners essentially assail the sufficiency of the amparo petition. They contend that the writ of amparo is available only in cases where the factual and legal bases of the violation or threatened violation of the aggrieved partys right to life, liberty and security are clear. Petitioners assert that in the case at bench, Virginia miserably failed to establish all these. First, the petition is wanting on its face as it failed to state with some degree of specificity the alleged unlawful act or omission of the petitioners constituting a violation of or a threat to Bens right to life, liberty and security. And second, it cannot be deduced from the evidence Virginia adduced that Ben is missing; or that petitioners had a hand in his alleged disappearance. On the other hand, the entries in the logbook which bear the signatures of Ben and Lolita are eloquent proof that petitioners released Ben on March 31, 2008 at around 10:30 p.m. Petitioners thus posit that the trial court erred in issuing the writ and in holding them responsible for Bens disappearance. Our Ruling Virginias Petition for Writ of Amparo is fatally defective and must perforce be dismissed, but not for the reasons adverted to by the petitioners. A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to arrest the rampant extralegal killings and enforced disappearances in the country. Its purpose is to provide an expeditious and effective relief "to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity." 40 Here, Bens right to life, liberty and security is firmly settled as the parties do not dispute his identity as the same person summoned and questioned at petitioners security office on the night of March 31, 2008. Such uncontroverted fact ipso facto established Bens inherent and constitutionally enshrined right to life, liberty and security. Article 641 of the International Covenant on Civil and Political Rights42 recognizes every human beings inherent right to life, while Article 943 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. Tagitis46 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. 985148 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-Arroyo49 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. SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice WE CONCUR:

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180088 January 19, 2009

MANUEL B. JAPZON, Petitioner, vs. COMMISSION ON ELECTIONS and JAIME S. TY, Respondents. DECISION CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rules 641 and 652 of the Revised Rules of Court seeking to annul and set aside the Resolution3 dated 31 July 2007 of the First Division of public respondent Commission on Elections (COMELEC) and the Resolution4 dated 28 September 2007 of COMELEC en banc, in SPA No. 07-568, for having been rendered with grave abuse of discretion, amounting to lack or excess of jurisdiction. Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, in the local elections held on 14 May 2007. On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a Petition5 to disqualify and/or cancel Tys Certificate of Candidacy on the ground of material misrepresentation. Japzon averred in his Petition that Ty was a former natural-born Filipino, having been born on 9

October 1943 in what was then Pambujan Sur, Hernani Eastern Samar (now the Municipality of General Macarthur, Easter Samar) to spouses Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty eventually migrated to the United States of America (USA) and became a citizen thereof. Ty had been residing in the USA for the last 25 years. When Ty filed his Certificate of Candidacy on 28 March 2007, he falsely represented therein that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for one year before 14 May 2007, and was not a permanent resident or immigrant of any foreign country. While Ty may have applied for the reacquisition of his Philippine citizenship, he never actually resided in Barangay 6, Poblacion, General Macarthur, Eastern Samar, for a period of one year immediately preceding the date of election as required under Section 39 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991. In fact, even after filing his application for reacquisition of his Philippine citizenship, Ty continued to make trips to the USA, the most recent of which was on 31 October 2006 lasting until 20 January 2007. Moreover, although Ty already took his Oath of Allegiance to the Republic of the Philippines, he continued to comport himself as an American citizen as proven by his travel records. He had also failed to renounce his foreign citizenship as required by Republic Act No. 9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003, or related laws. Hence, Japzon prayed for in his Petition that the COMELEC order the disqualification of Ty from running for public office and the cancellation of the latters Certificate of Candidacy. In his Answer6 to Japzons Petition in SPA No. 07-568, Ty admitted that he was a natural-born Filipino who went to the USA to work and subsequently became a naturalized American citizen. Ty claimed, however, that prior to filing his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he already performed the following acts: (1) with the enactment of Republic Act No. 9225, granting dual citizenship to natural-born Filipinos, Ty filed with the Philippine Consulate General in Los Angeles, California, USA, an application for the reacquisition of his Philippine citizenship; (2) on 2 October 2005, Ty executed an Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA; (3) Ty applied for a Philippine passport indicating in his application that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. Tys application was approved and he was issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty personally secured and signed his Community Tax Certificate (CTC) from the Municipality of General Macarthur, in which he stated that his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar; (5) thereafter, on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January 2007 again stating therein his address as Barangay 6, Poblacion, General Macarthur, Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of Foreign Citizenship. Given the aforementioned facts, Ty argued that he had reacquired his Philippine citizenship and renounced his American citizenship, and he had been a resident of the Municipality of General Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty sought the dismissal of Japzons Petition in SPA No. 07-568. Pending the submission by the parties of their respective Position Papers in SPA No. 07-568, the 14 May 2007 elections were already held. Ty acquired the highest number of votes and was declared Mayor of the Municipality of General Macarthur, Eastern Samar, by the Municipal Board of Canvassers on 15 May 2007.7 Following the submission of the Position Papers of both parties, the COMELEC First Division rendered its Resolution8 dated 31 July 2007 in favor of Ty.

The COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5 of Republic Act No. 9225 and reacquired his Philippine citizenship, to wit: Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Evidences revealed that [Ty] executed an Oath of Allegiance before Noemi T. Diaz, Vice Consul of the Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and executed a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.] 9225. Moreover, neither is [Ty] a candidate for or occupying public office nor is in active service as commissioned or non-commissioned officer in the armed forces in the country of which he was naturalized citizen.9 The COMELEC First Division also held that Ty did not commit material misrepresentation in stating in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for at least one year before the elections on 14 May 2007. It reasoned that: Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S. citizen in 1969, the reacquisition of his Philippine citizenship and subsequent acts thereof proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for at least one (1) year before the elections held on 14 May 2007 as he represented in his certificate of candidacy[.] As held in Coquilla vs. Comelec: "The term residence is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien. Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United States Code provides: Requirements of naturalization: Residence (a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) year immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3)

during all period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. (Emphasis added) In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a greencard, which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines. Records showed that after taking an Oath of Allegiance before the Vice Consul of the Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine passport on October 26, 2005; and secured a community tax certificate from the Municipality of General Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for more than one (1) year before the elections on May 14, 2007.10 (Emphasis ours.) The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus, reads: WHEREFORE, premises considered, the petition is DENIED for lack of merit.11 Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC First Division. On 28 September 2007, the COMELEC en banc issued its Resolution12 denying Japzons Motion for Reconsideration and affirming the assailed Resolution of the COMELEC First Division, on the basis of the following ratiocination: We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently spurns the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run as a candidate for any local post. xxxx It must be noted that absent any showing of irregularity that overturns the prevailing status of a citizen, the presumption of regularity remains. Citizenship is an important aspect of every individuals constitutionally granted rights and privileges. This is essential in determining whether one has the right to exercise pre-determined political rights such as the right to vote or the right to be elected to office and as such rights spring from citizenship. Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in which he resides; that citizenship once granted is presumably retained unless voluntarily relinquished; and that the burden rests upon who alleges a change in citizenship and allegiance to establish the fact. Our review of the Motion for Reconsideration shows that it does not raise any new or novel issues. The arguments made therein have already been dissected and expounded upon extensively by the first Division of the Commission, and there appears to be no reason to depart from the wisdom of the earlier resolution. We thus affirm that [Ty] did not commit any material misrepresentation when he accomplished his Certificate of Candidacy. The only ground for denial of a Certificate of Candidacy would be when there was material misrepresentation meant to mislead the electorate as

to the qualifications of the candidate. There was none in this case, thus there is not enough reason to deny due course to the Certificate of Candidacy of Respondent James S. Ty.13 Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the instant Petition for Certiorari, relying on the following grounds: A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND RESIDENCE.14 B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TYS] CERTIFICATE OF CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR OF GEN. MACARTHUR, EASTERN SAMAR.15 Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of origin. Ty did not establish his residence in the Municipality of General Macarthur, Eastern Samar, Philippines, just because he reacquired his Philippine citizenship. The burden falls upon Ty to prove that he established a new domicile of choice in General Macarthur, Eastern Samar, a burden which he failed to discharge. Ty did not become a resident of General Macarthur, Eastern Samar, by merely executing the Oath of Allegiance under Republic Act No. 9225. Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for running as a mayoralty candidate in the 14 May 2007 local elections. The one-year residency requirement for those running for public office cannot be waived or liberally applied in favor of dual citizens. Consequently, Japzon believes he was the only remaining candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, and is the only placer in the 14 May 2007 local elections. Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First Division and en banc, respectively; to issue a new resolution denying due course to or canceling Tys Certificate of Candidacy; and to declare Japzon as the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar. As expected, Ty sought the dismissal of the present Petition. According to Ty, the COMELEC already found sufficient evidence to prove that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. The Court cannot evaluate again the very same pieces of evidence without violating the well-entrenched rule that findings of fact of the COMELEC are binding on the Court. Ty disputes Japzons assertion that the COMELEC committed grave abuse of discretion in rendering the assailed Resolutions, and avers that the said Resolutions were based on the evidence presented by the parties and consistent with prevailing jurisprudence on the matter. Even assuming that Ty, the winning candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed disqualified from running in the local elections, Japzon as the second placer in the same elections cannot take his place. The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet the one-year residency requirement set by law to qualify him to run as a mayoralty candidate in the 14 May 2007 local elections. The OSG opines that Ty was unable to prove that he intended to remain in

the Philippines for good and ultimately make it his new domicile. Nonetheless, the OSG still prays for the dismissal of the instant Petition considering that Japzon, gathering only the second highest number of votes in the local elections, cannot be declared the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the said position. And since it took a position adverse to that of the COMELEC, the OSG prays from this Court to allow the COMELEC to file its own Comment on Japzons Petition. The Court, however, no longer acted on this particular prayer of the COMELEC, and with the submission of the Memoranda by Japzon, Ty, and the OSG, it already submitted the case for decision. The Court finds no merit in the Petition at bar. There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of Republic Act No. 9225.16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and, resultantly, became a pure Philippine citizen again. It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino may reacquire or retain17 his Philippine citizenship despite acquiring a foreign citizenship, and provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only logical and consistent with the general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may establish residence either in the Philippines or in the foreign country of which he is also a citizen. Residency in the Philippines only becomes relevant when the natural-born Filipino with dual citizenship decides to run for public office. Section 5(2) of Republic Act No. 9225 reads: SEC. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxxx (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.

Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath. That Ty complied with the second requirement is beyond question. On 19 March 2007, he personally executed a Renunciation of Foreign Citizenship before a notary public. By the time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively renounced his American citizenship, keeping solely his Philippine citizenship. The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications required by the Constitution and existing laws. Article X, Section 3 of the Constitution left it to Congress to enact a local government code which shall provide, among other things, for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local Government Code of 1991, Section 39 of which lays down the following qualifications for local elective officials: SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. xxxx (c) Candidates for the position of mayor or vice mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. The challenge against Tys qualification to run as a candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet the oneyear residency requirement in the said municipality. The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi)."18 A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). In Coquilla,19 the Court already acknowledged that for an individual to acquire American citizenship, he must establish residence in the USA. Since Ty himself admitted that he became a naturalized American citizen, then he must have necessarily abandoned the Municipality of General

Macarthur, Eastern Samar, Philippines, as his domicile of origin; and transferred to the USA, as his domicile of choice. As has already been previously discussed by this Court herein, Tys reacquisition of his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice. The length of his residence therein shall be determined from the time he made it his domicile of choice, and it shall not retroact to the time of his birth. How then could it be established that Ty indeed established a new domicile in the Municipality of General Macarthur, Eastern Samar, Philippines? In Papandayan, Jr. v. Commission on Elections,20 the Court provided a summation of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below: Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an "intention to return" to the place where he seeks to be elected. Corollary to this is a determination whether there has been an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondents immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under 68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881). In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or "intent to return," stating that his absence from his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that he always had animus revertendi. In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the determination of a persons legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her

residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place. In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are synonymous. The term "residence," as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez established his residence during the early 1980s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA Peoples Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the decisive factor in determining whether or not an individual has satisfied the residency qualification requirement. As espoused by Ty, the issue of whether he complied with the one-year residency requirement for running for public office is a question of fact. Its determination requires the Court to review, examine and evaluate or weigh the probative value of the evidence presented by the parties before the COMELEC. The COMELEC, taking into consideration the very same pieces of evidence presently before this Court, found that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that factual findings of administrative agencies, such as the COMELEC, which have acquired expertise in their field are binding and conclusive on the Court. An application for certiorari against actions of the COMELEC is confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process, considering that the COMELEC is presumed to be most competent in matters falling within its domain.21 The Court even went further to say that the rule that factual findings of administrative bodies will not be disturbed by courts of justice, except when there is absolutely no evidence or no substantial evidence in support of such findings, should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELECcreated and explicitly made independent by the Constitution itselfon a level higher than statutory

administrative organs. The factual finding of the COMELEC en banc is therefore binding on the Court.22 The findings of facts of quasi-judicial agencies which have acquired expertise in the specific matters entrusted to their jurisdiction are accorded by this Court not only respect but even finality if they are supported by substantial evidence. Only substantial, not preponderance, of evidence is necessary. Section 5, Rule 133 of the Rules of Court provides that in cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.23 The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First Division and en banc, respectively, were both supported by substantial evidence and are, thus, binding and conclusive upon this Court. Tys intent to establish a new domicile of choice in the Municipality of General Macarthur, Eastern Samar, Philippines, became apparent when, immediately after reacquiring his Philippine citizenship on 2 October 2005, he applied for a Philippine passport indicating in his application that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax jurisdiction of the Municipality of General Macarthur, Eastern Samar, by paying community tax and securing CTCs from the said municipality stating therein his address as A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied for and was registered as a voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar. In addition, Ty has also been bodily present in the Municipality of General Macarthur, Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a year prior to the 14 May 2007 local elections. Japzon maintains that Tys trips abroad during said period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31 October 2006 to 19 January 2007), indicate that Ty had no intention to permanently reside in the Municipality of General Macarthur, Eastern Samar, Philippines. The COMELEC First Division and en banc, as well as this Court, however, view these trips differently. The fact that Ty did come back to the Municipality of General Macarthur, Eastern Samar, Philippines, after said trips, is a further manifestation of his animus manendi and animus revertendi. There is no basis for this Court to require Ty to stay in and never leave at all the Municipality of General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local elections so that he could be considered a resident thereof. To the contrary, the Court has previously ruled that absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected, does not constitute loss of residence.24 The Court also notes, that even with his trips to other countries, Ty was actually present in the Municipality of General Macarthur, Eastern Samar, Philippines, for at least nine of the 12 months preceding the 14 May 2007 local elections. Even if length of actual stay in a place is not necessarily determinative of the fact of residence therein, it does strongly support and is only consistent with Tys avowed intent in the instant case to establish residence/domicile in the Municipality of General Macarthur, Eastern Samar. Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year residency requirement,

so Ty could run as a mayoralty candidate in the 14 May 2007 elections. In Aquino v. COMELEC,25 the Court did not find anything wrong in an individual changing residences so he could run for an elective post, for as long as he is able to prove with reasonable certainty that he has effected a change of residence for election law purposes for the period required by law. As this Court already found in the present case, Ty has proven by substantial evidence that he had established residence/domicile in the Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little over a year prior to the 14 May 2007 local elections, in which he ran as a candidate for the Office of the Mayor and in which he garnered the most number of votes. Finally, when the evidence of the alleged lack of residence qualification of a candidate for an elective position is weak or inconclusive and it clearly appears that the purpose of the law would not be thwarted by upholding the victors right to the office, the will of the electorate should be respected. For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters.26 To successfully challenge Tys disqualification, Japzon must clearly demonstrate that Tys ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines. WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 162759 August 4, 2006 LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO, ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE, TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN D. NATIVIDAD, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. DECISION GARCIA, J.: In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual citizens, pray that they and others who retained or reacquired Philippine citizenship under Republic Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, be allowed

to avail themselves of the mechanism provided under the Overseas Absentee Voting Act of 2003 1 (R.A. 9189) and that the Commission on Elections (COMELEC) accordingly be ordered to allow them to vote and register as absentee voters under the aegis of R.A. 9189. The facts: Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which accords to such applicants the right of suffrage, among others. Long before the May 2004 national and local elections, petitioners sought registration and certification as "overseas absentee voter" only to be advised by the Philippine Embassy in the United States that, per a COMELEC letter to the Department of Foreign Affairs dated September 23, 2003 2, they have yet no right to vote in such elections owing to their lack of the one-year residence requirement prescribed by the Constitution. The same letter, however, urged the different Philippine posts abroad not to discontinue their campaign for voters registration, as the residence restriction adverted to would contextually affect merely certain individuals who would likely be eligible to vote in future elections. Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs. COMELEC 3 on the residency requirement, the COMELEC wrote in response: Although R.A. 9225 enjoys the presumption of constitutionality , it is the Commission's position that those who have availed of the law cannot exercise the right of suffrage given under the OAVL for the reason that the OAVL was not enacted for them. Hence, as Filipinos who have merely reacquired their citizenship on 18 September 2003 at the earliest, and as law and jurisprudence now stand, they are considered regular voters who have to meet the requirements of residency, among others under Section 1, Article 5 of the Constitution. 4 Faced with the prospect of not being able to vote in the May 2004 elections owing to the COMELEC's refusal to include them in the National Registry of Absentee Voters, petitioner NicolasLewis et al., 5 filed on April 1, 2004 this petition for certiorari and mandamus. A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC filed a Comment, 6therein praying for the denial of the petition. As may be expected, petitioners were not able to register let alone vote in said elections. On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of Comment), therein stating that "all qualified overseas Filipinos, including dual citizens who care to exercise the right of suffrage, may do so" , observing, however, that the conclusion of the 2004 elections had rendered the petition moot and academic. 7 The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition moot and academic, but insofar only as petitioners participation in such political exercise is concerned. The broader and transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing "duals" to participate and vote as absentee voter in future elections, however, remains unresolved. Observing the petitioners and the COMELECs respective formulations of the issues, the same may be reduced into the question of whether or not petitioners and others who might have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189.

The Court resolves the poser in the affirmative, and thereby accords merit to the petition. In esse, this case is all about suffrage. A quick look at the governing provisions on the right of suffrage is, therefore, indicated. We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as follows: SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. xxx. SEC 2. The Congress shall provide a system for absentee voting by qualified Filipinos abroad. In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an absentee may vote, implying that a non-resident may, as an exception to the residency prescription in the preceding section, be allowed to vote. In response to its above mandate, Congress enacted R.A. 9189 - the OAVL 8 - identifying in its Section 4 who can vote under it and in the following section who cannot, as follows: Section 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vicepresident, senators and party-list representatives. Section 5. Disqualifications. The following shall be disqualified from voting under this Act: (a) Those who have lost their Filipino citizenship in accordance with Philippine laws; (b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; (c) Those who have [been] convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, .; (d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. (e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority . (Words in bracket added.)

Notably, Section 5 lists those who cannot avail themselves of the absentee voting mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants and permanent residents in another country opens an exception and qualifies the disqualification rule. Section 5(d) would, however, face a constitutional challenge on the ground that, as narrated in Macalintal, it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. [The challenger] cites Caasi vs. Court of Appeals 9 to support his claim [where] the Court held that a "green card" holder immigrant to the [US] is deemed to have abandoned his domicile and residence in the Philippines. [The challenger] further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise; that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution. 10 (Words in bracket added.) As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly on the strength of the following premises: As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is "recognized as such in the host country" because immigration or permanent residence in another country implies renunciation of one's residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. Contrary to the claim of [the challenger], the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise." 11 Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A. 9225 the relevant portion of which reads: SEC. 2. Declaration of Policy. It is hereby declared the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: xxx xxx xxx Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. SEC. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship ; 3) xxx xxx xxx. (4) xxx xxx xxx; (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. After what appears to be a successful application for recognition of Philippine citizenship under R.A. 9189, petitioners now invoke their right to enjoy political rights, specifically the right of suffrage, pursuant to Section 5 thereof. Opposing the petitioners bid, however, respondent COMELEC invites attention to the same Section 5 (1) providing that "duals" can enjoy their right to vote, as an adjunct to political rights, only if they meet the requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing laws. Capitalizing on what at first blush is the clashing provisions of the aforecited provision of the

Constitution, which, to repeat, requires residency in the Philippines for a certain period, and R.A. 9189 which grants a Filipino non-resident absentee voting rights, 12 COMELEC argues: 4. DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE PHILIPPINES 4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The duals, upon renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically and legally abandoned their domicile and severed their legal ties to the homeland as a consequence. Having subsequently acquired a second citizenship (i.e., Filipino) then, duals must, for purposes of voting, first of all, decisively and definitely establish their domicile through positive acts; 13 The Court disagrees. As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote. Thus, wrote the Court in Macalintal: It is clear from these discussions of the Constitutional Commission that [it] intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, , the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus: Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact. Let me read Section 1, Article V, of the Constitution . xxx xxx xxx

Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They are permanent immigrants. They have changed residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the original text of the bill will have any effect on this? Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the Constitution. One, the interpretation here of "residence" is synonymous with "domicile." As the gentleman and I know, Mr. President, "domicile" is the intent to return to one's home. And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law. This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide a franchise to overseas Filipinos. If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President. Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: "The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad." The key to this whole exercise, Mr. President, is "qualified." In other words, anything that we may do or say in granting our compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. And "residents" (sic) is a qualification. xxx xxx xxx Look at what the Constitution says "In the place wherein they propose to vote for at least six months immediately preceding the election." Mr. President, all of us here have run (sic) for office. I live in Makati. My neighbor is Pateros . We are separated only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is. . As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make the transfer six months before the election, otherwise, he is not qualified to vote. xxx xxx xxx Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even in the constitutional commission of 1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement. That is the first principle, Mr. President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence "residency" has been interpreted as synonymous with "domicile." But the third more practical reason, is, if we follow the interpretation of the gentleman, then it is legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is quite ridiculous because that is exactly the whole point of this exercise to enfranchise them and empower them to vote. 14 (Emphasis and words in bracket added; citations omitted) Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship Retention and Re-Acquisition Act expanded the coverage of overseas absentee voting. According to the poll body: 1.05 With the passage of RA 9225 the scope of overseas absentee voting has been consequently expanded so as to include Filipinos who are also citizens of other countries, subject, however, to the strict prerequisites indicated in the pertinent provisions of RA 9225; 15 Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines the terms adverted to in the following wise: "Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote; "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections; While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of "duals". This may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225 which reads: SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. It is very likely that a considerable number of those unmarried children below eighteen (18) years of age had never set foot in the Philippines. Now then, if the next generation of "duals" may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor reason why the petitioners and other present day "duals," provided they meet the requirements under Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas absentee voter. Congress could not have plausibly intended such absurd situation. WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so holds that those who retain or re-acquire Philippine citizenship under Republic Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, may exercise the right to vote under the system of absentee voting in Republic Act No. 9189, the Overseas Absentee Voting Act of 2003. SO ORDERED.

CANCIO C. GARCIA Associate Justice WE CONCUR: Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 159618 February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA,Petitioner, vs. ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents. DECISION VELASCO, JR., J.: The Case This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA). The Facts Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.2 Rome Statute of the International Criminal Court Having a key determinative bearing on this case is the Rome Statute3 establishing the International Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions."4 The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.5 On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory states.6 As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP. Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as "persons" of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries.9 The Agreement pertinently provides as follows: 1. For purposes of this Agreement, "persons" are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party. 2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party, (a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council. 3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP]. 4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US]. 5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the effective date of termination. In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the nonsurrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the

exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate.10 In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying theAgreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect. For their part, respondents question petitioners standing to maintain a suit and counter that the Agreement, being in the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of the Agreement. The Issues I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-02803 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE. A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion when they capriciously abandoned, waived and relinquished our only legitimate recourse through the Rome Statute of the [ICC] to prosecute and try "persons" as defined in the x x x Agreement, x x x or literally any conduit of American interests, who have committed crimes of genocide, crimes against humanity, war crimes and the crime of aggression, thereby abdicating Philippine Sovereignty. B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing all acts which would substantially impair the value of the undertaking as signed. C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of theRome Statute of the International Criminal Court and contravenes the obligation of good faith inherent in the signature of the President affixed on the Rome Statute of the International Criminal Court, and if so whether the x x x Agreement is void and unenforceable on this ground. D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of discretion amounting to lack or excess of jurisdiction in connection with its execution. II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11 The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted validly, which resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it; and second, whether or not the Agreement, which has not been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and other treaties. But because respondents expectedly raised it, we shall first tackle the issue of petitioners legal standing. The Courts Ruling This petition is bereft of merit. Procedural Issue: Locus Standi of Petitioner Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of theAgreement carries with it constitutional significance and is of paramount importance that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers cases,12 in which ordinary citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances. Locus standi is "a right of appearance in a court of justice on a given question."13 Specifically, it is "a partys personal and substantial interest in a case where he has sustained or will sustain direct injury as a result"14 of the act being challenged, and "calls for more than just a generalized grievance."15 The term "interest" refers to material interest, as distinguished from one that is merely incidental.16 The rationale for requiring a party who challenges the validity of a law or international agreement to allege such a personal stake in the outcome of the controversy is "to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."17 Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act, but by concerned citizens, taxpayers, or voters who actually sue in the public interest.18 Consequently, in a catena of cases,19 this Court has invariably adopted a liberal stance on locus standi. Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens raising issues of transcendental importance, both for the Republic and the citizenry as a whole. When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on this requirement, thus: In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.21 In the case at bar, petitioners representatives have complied with the qualifying conditions or specific requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is direct and personal. At the very least, their assertions questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against established national policies, practices, and obligations bearing on the States obligation to the community of nations. At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited emergency powers cases22 and Kilosbayan v. Guingona, Jr.23In cases of transcendental importance, we wrote again in Bayan v. Zamora,24 "The Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review." Moreover, bearing in mind what the Court said in Taada v. Angara, "that it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government,"25 we cannot but resolve head on the issues raised before us. Indeed, where an action of any branch of government is seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the fore the propriety of the Agreement pending the ratification of the Rome Statute. Validity of the RP-US Non-Surrender Agreement Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement. Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines, practices, and jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.26 An exchange of notes falls "into the category of inter-governmental agreements,"27 which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An "exchange of notes" is a record of a routine agreement, that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual

procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.28 In another perspective, the terms "exchange of notes" and "executive agreements" have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action.29 On the other hand, executive agreements concluded by the President "sometimes take the form of exchange of notes and at other times that of more formal documents denominated agreements or protocols."30 As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchange of notes or otherwise begin, may sometimes be difficult of ready ascertainment.31 x x x It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the NonSurrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be boundis a recognized mode of concluding a legally binding international written contract among nations. Senate Concurrence Not Required Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."32 International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.33 Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned,34 as long as the negotiating functionaries have remained within their powers.35 Neither, on the domestic sphere, can one be held valid if it violates the Constitution.36 Authorities are, however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect.37 As has been observed by US constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people;38 a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment.39 Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by US legal scholars: "[I]nternational agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature take the form of executive agreements." 40

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims. In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,41holding that an executive agreement through an exchange of notes cannot be used to amend a treaty. We are not persuaded. The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties intent and desire to craft an international agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda42 principle. As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety, among others.43 Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier: x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have been negotiated with foreign governments. x x x They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc. x x x And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a treatyimplementing executive agreement,45 which necessarily would cover the same matters subject of the underlying treaty. But over and above the foregoing considerations is the fact thatsave for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution46when a treaty is required, the Constitution does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process.

Petitioners reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate for its ratification may not be used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a treaty, purportedly being subject to amendment by an executive agreement, does not obtain under the premises. Considering the above discussion, the Court need not belabor at length the third main issue raised, referring to the validity and effectivity of the Agreement without the concurrence by at least twothirds of all the members of the Senate. The Court has, in Eastern Sea Trading,48 as reiterated in Bayan,49 given recognition to the obligatory effect of executive agreements without the concurrence of the Senate: x x x [T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered executive agreements covering such subjects as commercial and consular relations, most favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. The Agreement Not in Contravention of the Rome Statute It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is null and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of providing individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that state parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, thereby constituting a breach of Arts. 27,50 86,51 8952 and 9053 thereof. Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort, by the ICC; thus, any agreementlike the non-surrender agreementthat precludes the ICC from exercising its complementary function of acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute. Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has an immoral purpose or is otherwise at variance with a priorly executed treaty. Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it differ from, the Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary

to national criminal jurisdictions [of the signatory states]."54 Art. 1 of the Rome Statute pertinently provides: Article 1 The Court An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. (Emphasis ours.) Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." This provision indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with the state where the crime was committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 155 of the Rome Statute. Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision states that "no person who has been tried by another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct x x x." The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of the Agreement substantially impairing the value of the RPs undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute. Given the above consideration, petitioners suggestionthat the RP, by entering into the Agreement, violated its duty required by the imperatives of good faith and breached its commitment under the Vienna Convention57 to refrain from performing any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. For nothing in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person, should the process require the requested state to perform an act that would violate some international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which reads: Article 98 Cooperation with respect to waiver of immunity and consent to surrender xxxx

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. Moreover, under international law, there is a considerable difference between a State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith. In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature. As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-Parties, not signatories. Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court. x x x" In applying the provision, certain undisputed facts should be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an international agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party to the Rome Statute. Sovereignty Limited by International Agreements Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel who commit serious crimes of international concerns in the Philippines. Formulating petitioners argument a bit differently, the RP, by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing international crimes in the country. We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the Philippines national criminal jurisdiction. National criminal jurisdiction being primary, as explained above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the US, as the term is understood in the Agreement, under our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US "persons" committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom

the Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to exercise either its national criminal jurisdiction over the "person" concerned or to give its consent to the referral of the matter to the ICC for trial. In the same breath, the US must extend the same privilege to the Philippines with respect to "persons" of the RP committing high crimes within US territorial jurisdiction. In the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction to the extent agreed uponto subjects of another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote inNicolas v. Romulo59a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreementis apropos: Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another States territory. x x x To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an international agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and amity with all nations.60 By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other. On the rationale that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.61 Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.62 Agreement Not Immoral/Not at Variance with Principles of International Law Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, "leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x."63 The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles.64

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, "is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the countrys judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously." Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute. No Grave Abuse of Discretion Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement. And without specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse of discretion. The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually faults the President for performing, through respondents, a task conferred the President by the Constitutionthe power to enter into international agreements. By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the sole organ and authority in the external affairs of the country.65 The Constitution vests in the President the power to enter into international agreements, subject, in appropriate cases, to the required concurrence votes of the Senate. But as earlier indicated, executive agreements may be validly entered into without such concurrence. As the President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice.66 In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria MacapagalArroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by the Constitution. At the end of the day, the Presidentby ratifying, thru her deputies, the non-surrender agreementdid nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office. While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary.67 As the Court emphasized in said case, the power to ratify a treaty, the Statute in that

instance, rests with the President, subject to the concurrence of the Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or withholding the ratification. And concomitant with this treaty-making power of the President is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the latters consent to the ratification of the treaty, refuse to ratify it.68 This prerogative, the Court hastened to add, is the Presidents alone and cannot be encroached upon via a writ of mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to the Rome Statute. Under Art. 12569 thereof, the final acts required to complete the treaty process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be done. Agreement Need Not Be in the Form of a Treaty On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second paragraph thereof, provides: Section 17. Jurisdiction. x x x x 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. (Emphasis supplied.) A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them. The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal; or (2) surrender the accused to another State if such surrender is "pursuant to the applicable extradition laws and treaties." But the Philippines may exercise these options only in cases where "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851. Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851, the Philippines has the option to surrender such US national to the international tribunal if it decides not to prosecute such US national here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise such option, requires an amendatory law. In line with this scenario, the view strongly argues that the Agreement prevents the Philippineswithout the consent of the USfrom surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that

the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the corresponding formalities. Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the Philippines adopts, as a national policy, the "generally accepted principles of international law as part of the law of the land," the Court is further impressed to perceive the Rome Statute as declaratory of customary international law. In other words, the Statute embodies principles of law which constitute customary international law or custom and for which reason it assumes the status of an enforceable domestic law in the context of the aforecited constitutional provision. As a corollary, it is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of the executive branch, can only implement, but cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the principles of law or alters customary rules embodied in the Rome Statute. Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution. We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if any, theAgreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in the Rome Statute. Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses committed by their respective citizens and military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of the signatory states. Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide and other crimes against humanity;70 (2) provides penal sanctions and criminal liability for their commission;71 and (3) establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of theAgreement. The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted proviso clearly provides discretion to the Philippine State on whether to surrender or not a person accused of the crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in statutory construction that the word "may" denotes discretion, and cannot be construed as having mandatory effect.73Thus, the pertinent

second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.1avvphi1 Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise its primary jurisdiction in cases where "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the surrender may be made "to another State pursuant to the applicable extradition laws and treaties." The Agreement can already be considered a treaty following this Courts decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an executive agreement is a treaty within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the United States."76 Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851. The views reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions were filed questioning the power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took judicial notice of the act of the executive department of the Philippines (the President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions. In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive agreement. He stated that "an executive agreement has the force and effect of law x x x [it] cannot amend or repeal prior laws."78 Hence, this argument finds no application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but only in the dissenting opinion. The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties x x x,"79 and thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an international crime unless Congress adopts a law defining and punishing the offense. This view must fail. On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of "war crimes" which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:

(a) Offense Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. (b) Circumstances The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in Section 101 of the Immigration and Nationality Act). (c) Definition As used in this Section the term "war crime" means any conduct (1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party; (2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when committed in the context of and in association with an armed conflict not of an international character; or (4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.801avvphi1 Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit: 1091. Genocide (a) Basic Offense Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group; shall be punished as provided in subsection (b).81 Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military and the International Criminal Court," as its basis. At the outset, it should be pointed out that the report used may not have any weight or value under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The report does not fall under any of the foregoing enumerated sources. It cannot even be considered as the "teachings of highly qualified publicists." A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars or "academic writers."82 It has not been shown that the authors83 of this report are highly qualified publicists. Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute vis--vis the definitions under US laws: Rome Statute Article 6 Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to 1091. Genocide (a) Basic Offense Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, US Law

prevent births within the group; (e) Forcibly transferring children of the group to another group.

or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group; shall be punished as provided in subsection (b).

Article 8 War Crimes 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: x x x84 (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: xxxx (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva

(d) Definition As used in this Section the term "war crime" means any conduct (1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party; (2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]85) when committed in the context of and in association with an armed conflict not of an international character; or (4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on

Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: xxxx (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: x x x.

3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.86

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as much, to wit: Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within the Uniform Code of Military Justice that would expose US personnel to the Court. Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and the Rome Statute, military experts argued, could be addressed through existing military laws.87 x x x The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out in the Rome Statute have been part of US military doctrine for decades."88 Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana89 case already held international law as part of the law of the US, to wit: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for the trustworthy evidence of what the law really is.90(Emphasis supplied.) Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation. The cited ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S. v. Hudson,92 only applies to common law and not to the law of nations or international law.93 Indeed, the Court in U.S. v. Hudson only considered the question, "whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases."94 Stated otherwise, there is no common law crime in the US but this is considerably different from international law. The US doubtless recognizes international law as part of the law of the land, necessarily including international crimes, even without any local statute.95 In fact, years later, US courts would apply international law as a source of criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quirin96 the US Supreme Court noted that "[f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals."97 It went on further to explain that Congress had not undertaken the task of codifying the specific offenses covered in the law of war, thus: It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns. An Act of Congress punishing the crime of piracy as defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has adopted by reference the sufficiently precise definition of international law. x x x Similarly by the reference in the 15th Article of War to offenders or offenses that x x x by the law of war may be triable by such military commissions. Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war x x x, and which may constitutionally be included within that jurisdiction.98 x x x (Emphasis supplied.) This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war crimes and crimes against humanity have attained the status of customary international law. Some even go so far as to state that these crimes have attained the status of jus cogens.99 Customary international law or international custom is a source of international law as stated in the Statute of the ICJ.100 It is defined as the "general and consistent practice of states recognized and followed by them from a sense of legal obligation."101 In order to establish the customary status of a

particular norm, two elements must concur: State practice, the objective element; and opinio juris sive necessitates, the subjective element.102 State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.103 It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3) duration.104 While, opinio juris, the psychological element, requires that the state practice or norm "be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it."105 "The term jus cogens means the compelling law."106 Corollary, "a jus cogens norm holds the highest hierarchical position among all other customary norms and principles."107 As a result, jus cogens norms are deemed "peremptory and non-derogable."108 When applied to international crimes, "jus cogens crimes have been deemed so fundamental to the existence of a just international legal order that states cannot derogate from them, even by agreement."109 These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for jurisdiction exists."110 "The rationale behind this principle is that the crime committed is so egregious that it is considered to be committed against all members of the international community"111 and thus granting every State jurisdiction over the crime.112 Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of incorporation and universal jurisdiction to try these crimes. Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not declaratory of customary international law. The first element of customary international law, i.e., "established, widespread, and consistent practice on the part of States,"113 does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12, 2010, only 114114 States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of 194115 countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary law and should be deemed as obligatory international law. The numbers even tend to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the Senate for the ratification process. And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus: Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris] x x x." This statement contains the two basic elements of custom: the material factor, that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the way they do. xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states. The required duration can be either short or long. x x x xxxx Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x xxxx Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.116 (Emphasis added.) Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular international criminal court. Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.117Like the first element, the second element has likewise not been shown to be present. Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent.118 Even further, the Rome Statute specifically and unequivocally requires that: "This Statute is subject to ratification, acceptance or approval by signatory States."119 These clearly negate the argument that such has already attained customary status. More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, "[t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence."120 The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid. In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No costs. SO ORDERED. PRESBITERO J. VELASCO, JR. Associate Justice WE CONCUR:

Republic of the Philippines SUPREME COURT Manila EN BANC G.R No. 187167 August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners, vs. HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS,Respondents. DECISION CARPIO, J.: The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221(RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby territories. The Antecedents In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo. In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands generate their own applicable maritime zones. Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens, taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.13 In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands" not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal. Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack of locus standiand (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS III, preserving Philippine territory over the

KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the countrys security, environment and economic interests or relinquish the Philippines claim over Sabah. Respondents also question the normative force, under international law, of petitioners assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris. We left unacted petitioners prayer for an injunctive writ. The Issues The petition raises the following issues: 1. Preliminarily 1. Whether petitioners possess locus standi to bring this suit; and 2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522. 2. On the merits, whether RA 9522 is unconstitutional. The Ruling of the Court On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional. On the Threshold Issues Petitioners Possess Locus Standi as Citizens Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the requirements for granting citizenship standing.17 The Writs of Certiorari and Prohibition Are Proper Remedies to Test the Constitutionality of Statutes In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18

Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of government.20Issues of constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law. RA 9522 is Not Unconstitutional RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical description, Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris.22 Petitioners theory fails to persuade us. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated authority over a limited span of waters and submarine lands along their coasts. On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer: Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied) Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice

to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of the archipelago."24 UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.26 RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines Claim of Sovereignty Over these Areas Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over that area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view.1avvphi1 The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose. Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the

location of basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29 Extent of maritime area using RA 3046, as amended, taking into account the Treaty of Paris delimitation (in square nautical miles) Internal or archipelagic waters Territorial Sea Exclusive Economic Zone TOTAL 440,994

Extent of maritime area using RA 9522, taking into account UNCLOS III (in square nautical miles)

166,858 274,136

171,435 32,106 382,669 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal: SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31 Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will inevitably "depart to an appreciable extent from the general configuration of the archipelago." The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate deliberations: What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating the provision of international law which states: "The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own. This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural configuration of the archipelago.34 (Emphasis supplied) Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits.1avvphi1 The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents: [T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit: 1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles."

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines system. This will enclose an additional 2,195 nautical miles of water. 3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found to be located either inland or on water, not on low-water line and drying reefs as prescribed by Article 47.35 Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal as "Regime[s] of Islands under the Republic of the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above water at high tide," such as portions of the KIG, qualifies under the category of "regime of islands," whose islands generate their own applicable maritime zones.37 Statutory Claim Over Sabah under RA 5446 Retained Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah: Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Actis without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied) UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal Waters As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.38 Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this: Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil. 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.

2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. xxxx 4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. (Emphasis supplied) The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41 In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines,regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47 Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x x."49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite,

relating to the protection of marine wealth (Article XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522. In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it. UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III. RA 9522 and the Philippines Maritime Zones Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it weakens the countrys case in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest. WHEREFORE, we DISMISS the petition. SO ORDERED.