G.R. No.
180906             October 7, 2008 representatives, or persons acting in their stead, including but not limited to the Citizens
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,
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 Amparo Petition, to Admit Supporting
Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the
petition be considered a Petition for the Writ of Amparo under Sec. 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 Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring
them to file with the CA (Court of Appeals) a verified written return within five (5)
working days from service of the writ. We REMAND the petition to the CA and
designate the Division of Associate Justice Lucas P. Bersamin to conduct the
summary hearing on the petition on November 8, 2007 at 2:00 p.m. and decide
the petition in accordance with the Rule on the Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision in favor of therein
petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.
 The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF
STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days from
notice of this decision all official and unofficial reports of the investigation
undertaken in connection with their case, except those already on file
herein;
2. To confirm in writing the present places of official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald Caigas within five days from notice
of this decision.
3. To cause to be produced to this Court all medical reports, records and
charts, reports of any treatment given or recommended and medicines
prescribed, if any, to the petitioners, to include a list of medical and (sic)
personnel (military and civilian) who attended to them from February 14,
2006 until August 12, 2007 within five days from notice of this decision.
The compliance with this decision shall be made under the signature and oath of
respondent AFP Chief of Staff or his duly authorized deputy, the 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 their barangay in San Idelfonso, Bulacan. Respondents
were not able to attend as they were not informed of the gathering, but Raymond saw
some of the soldiers when he passed by the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San
Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue
pants and army boots, entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was Raymond, not Bestre. The
armed soldier slapped him on both cheeks and nudged him in the stomach. He was then
handcuffed, brought to the rear of his house, and forced to the ground face down. He
was kicked on the hip, ordered to stand and face up to the light, then forcibly brought
near the road. He told his mother to follow him, but three soldiers stopped her and told
her to stay.12
Among the men who came to take him, Raymond recognized brothers Michael de la
Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as
lookout. They were all members of the CAFGU and residing in Manuzon, San Ildefonso,
Bulacan. He also recognized brothers Randy Mendoza and Rudy Mendoza, also
members of the CAFGU. While he was being forcibly taken, he also saw outside of his
house two barangay councilors, Pablo Cunanan and Bernardo Lingasa, with some
soldiers and armed men.13
The men forced Raymond into a white L300 van. Once inside, he was blindfolded.
Before being blindfolded, he saw the faces of the soldiers who took him. Later, in his 18
months of captivity, he learned their names. The one who drove the van was Rizal Hilario
alias Rollie Castillo, whom he estimated was about 40 years of age or older. The leader
of the team who entered his house and abducted him was "Ganata." He was tall, thin,
curly-haired and a bit old. Another one of his abductors was "George" who was tall, thin,
white-skinned and about 30 years old.14
The van drove off, then came to a stop. A person was brought inside the van and made
to sit beside Raymond. Both of them were beaten up. On the road, he recognized the
voice of the person beside him as his brother 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 so-called "Mam" or "Madam" suddenly called,
saying that she wanted to see Raymond before he was killed. The soldiers ceased the
torture and he was returned inside Fort Magsaysay where Reynaldo was detained.20
For some weeks, the respondents had a respite from all the torture. Their wounds were
treated. When the wounds were almost healed, the torture resumed, particularly when
respondents' guards got drunk.21
Raymond recalled that sometime in April until May 2006, he was detained in a room
enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2 meters,
and did everything there, including urinating, removing his bowels, bathing, eating and
sleeping. He counted that eighteen people22 had been detained in that bartolina,
including his brother Reynaldo and himself.23
For about three and a half months, the respondents were detained in Fort Magsaysay.
They were kept in a small house with two rooms and a kitchen. One room was made into
the bartolina. The house was near the firing range, helipad and mango trees. At dawn,
soldiers marched by their house. They were also sometimes detained in what he only
knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He checked their body and
eyes, took their urine samples and marked them. When asked how they were feeling,
they replied that they had a hard time urinating, their stomachs were aching, and they felt
other pains in their body. The next day, two ladies in white arrived. They also examined
respondents and gave them medicines, including orasol, amoxicillin and mefenamic acid.
They brought with them the results of respondents' urine test and advised them to drink
plenty of water and take their medicine. The two ladies returned a few more times.
Thereafter, medicines were sent through the "master" of the DTU, "Master" Del Rosario
alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While
there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor
and take care of them.25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and
several other armed men wearing fatigue suits, went to a detachment in Pinaud, San
Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big two-storey
house. Hilario and Efren stayed with them. While there, Raymond was beaten up by
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 Empeño 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 Amparo Rule and to submit report of such
compliance... Likewise, in a Memorandum Directive also dated October 31, 2007,
I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP
should adopt the following rules of action in the event the Writ of Amparo is
issued by a competent court against any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may aid in the
prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning the
death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have brought
about the death or disappearance;
(5) to identify and apprehend the person or persons involved in the death
or disappearance; and
(6) to bring the suspected offenders before a competent court.49
Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the
Return of the Writ, attesting that he received the above directive of therein respondent
Secretary of National Defense and that acting on this directive, he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the Philippines
(AFP), I have caused to be issued directive to the units of the AFP for the
purpose of establishing the circumstances of the alleged disappearance and the
recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the result
thereof to Higher headquarters and/or direct the immediate conduct of the
investigation on the matter by the concerned unit/s, dispatching Radio Message
on November 05, 2007, addressed to the Commanding General, Philippine Army
(Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the Radio
Message is attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be
conducted by the concerned unit relative to the circumstances of the alleged
disappearance of the persons in whose favor the Writ of Amparo has been
sought for as soon as the same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ of Amparo (G.R. No. 179994) filed at the instance of
relatives of a certain Cadapan and Empeño 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, Empeño 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 Empeño 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 Empeño 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, Empeño and Merino.51
It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of
Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other
persons implicated by therein petitioners could not be secured in time for the submission
of the Return and would be subsequently submitted.52
Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U.
Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort
Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this Division covers
Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the
7th Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to
investigate the alleged abduction of the respondents by CAFGU auxiliaries under his
unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo
de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning;
and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of
the abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU
auxiliaries; and (2) the administrative liability of said auxiliaries, if any.57 Jimenez testified
that this particular investigation was initiated not by a complaint as was the usual
procedure, but because the Commanding General saw news about the abduction of the
Manalo brothers on the television, and he was concerned about what was happening
within his territorial jurisdiction.58
Jimenez summoned all six implicated persons for the purpose of having them execute
sworn statements and conducting an investigation on May 29, 2006.59 The investigation
started at 8:00 in the morning and finished at 10:00 in the evening.60 The investigating
officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six
persons on that day. There were no other sworn statements taken, not even of the
Manalo family, nor were there other witnesses summoned and 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 Rejón, 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.86 Other
countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the
protection of the writ of Amparo only to some constitutional guarantees or fundamental
rights.87
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ
of Amparo, several of the above Amparo protections are guaranteed by our charter. The
second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse
Clause, provides for the judicial power "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." The Clause accords a similar general
protection to human rights extended by the Amparo contra leyes, Amparo casacion,
and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas
corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring
of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case
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 by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall
be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.95
After careful perusal of the evidence presented, we affirm the findings of the Court of
Appeals that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The abduction, detention, torture, and
escape of the respondents were narrated by respondent Raymond Manalo in a clear and
convincing manner. His account is dotted with countless candid details of respondents'
harrowing experience and tenacious will to escape, captured through his different senses
and etched in his memory. A few examples are the following: "Sumilip ako sa isang haligi
ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang
tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni
Manuel."97 "May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan kung saan
ginamit ko ang bato para tanggalin ang mga kadena."99 "Tinanong ko sa isang kapit-
bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang
babae na nakatira sa malapit na lugar."100
We affirm the factual findings of the appellate court, largely based on respondent
Raymond 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. (Tañada 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, a cause of action. Fear caused by the same
stimulus can range from being baseless to well-founded as people react differently. The
degree of fear can vary from one person to another with the variation of the prolificacy of
their imagination, strength of character or past experience with the stimulus. Thus, in
the Amparo context, it is more correct to say that the "right to security" is actually
the "freedom from threat." Viewed in this light, the "threatened with violation" Clause in
the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security
mentioned in the earlier part of the provision.127
Second, the right to security of person is a guarantee of bodily and psychological
integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a
general rule, 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
préparatoires 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,144 involving an
assassination attempt on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to
security" not only as prohibiting the State from arbitrarily depriving liberty, but imposing a
positive duty on the State to afford protection of the right to liberty.145 The ECHR
interpreted the "right to security of person" under Article 5(1) of the European Convention
of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey.146 In
this case, the 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 Empeño, 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,  the respondent judge, under
153
authority of Rule 27, issued a subpoena duces tecum for the production and inspection
of among others, the books and papers of Material Distributors (Phil.) Inc. The company
questioned the issuance of the subpoena on the ground that it violated the search and
seizure clause. The Court struck down the argument and held that
the subpoena pertained to a civil procedure that "cannot be identified or confused with
unreasonable searches prohibited by the Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide
results of the investigations conducted or to be conducted by the concerned unit relative
to the circumstances of the alleged disappearance of the persons in whose favor the Writ
of Amparo has been sought for as soon as the same has been furnished Higher
headquarters."
With respect to the second and third reliefs, petitioners assert that the disclosure of
the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas,
as well as the submission of a list of medical personnel, is irrelevant, improper,
immaterial, and unnecessary in the resolution of the petition for a writ of Amparo. They
add that it will unnecessarily compromise and jeopardize the exercise of official functions
and duties of military officers and even unwittingly and unnecessarily expose them to
threat of personal injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly implicated
as perpetrators behind their abduction and detention, is relevant in ensuring the safety of
respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also
help ensure that these military officers can be served with notices and court processes in
relation to any investigation and action for violation of the respondents' rights. The list of
medical personnel is also relevant in securing information to create the medical history of
respondents and make appropriate medical interventions, when applicable and
necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these rights
are snuffed out from victims of extralegal killings and enforced disappearances. The writ
of Amparo is a tool that gives voice to preys of silent guns and prisoners behind secret
walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the
Court of Appeals dated December 26, 2007 is affirmed.
SO ORDERED.
G.R. No. 182498               December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief
Superintendent RAUL CASTAÑEDA, Chief, Criminal Investigation and Detection
Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police
Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO,
Regional Director of ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR.,
Attorney-in-Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the decision dated March 7, 2008 of the
Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA decision confirmed the
enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of
Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive
portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby
FINDS that this is an "enforced disappearance" within the meaning of the United Nations
instruments, as used in the Amparo Rules. The privileges of the writ of amparo are
hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE
PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL
GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of
TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him as their
superior- are hereby DIRECTED to exert extraordinary diligence and efforts, not only to
protect the life, liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to submit
a monthly report of their actions to this Court, as a way of PERIODIC REVIEW to enable
this Court to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER
YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN
RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the
military, which is a separate and distinct organization from the police and the CIDG, in
terms of operations, chain of command and budget.
This Decision reflects the nature of the Writ of Amparo – a protective remedy against
violations or threats of violation against the rights to life, liberty and security.3 It
embodies, as a remedy, the court’s directive to police agencies to undertake specified
courses of action to address the disappearance of an individual, in this case, Engr.
Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the
disappearance; rather, it determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate remedies to address
the disappearance. Responsibility refers to the extent the actors have been established
by substantial evidence to have participated in whatever way, by action or omission, in
an enforced disappearance, as a measure of the remedies this Court shall craft, among
them, the directive to file the appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand, refers to the measure of
remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but have
failed to discharge, the burden of extraordinary diligence in the investigation of the
enforced disappearance. In all these cases, the issuance of the Writ of Amparo is
justified by our primary goal of addressing the disappearance, so that the life of the victim
is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the unique
situations that call for the issuance of the writ, as well as the considerations and
measures necessary to address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions and proceedings. In this
sense, the Rule on the Writ of Amparo4 (Amparo Rule) issued by this Court is unique.
The Amparo Rule should be read, too, as a work in progress, as its directions and finer
points remain to evolve through time and jurisprudence and through the substantive laws
that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the Senior
Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme,
was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar,
Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in
Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga.
When Kunnong returned from this errand, Tagitis was no longer around.5 The
receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and
even left his room key with the desk.6 Kunnong looked for Tagitis and even sent a text
message to the latter’s Manila-based secretary who did not know of Tagitis’ whereabouts
and activities either; she advised Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor
of Muslim studies and Tagitis’ fellow student counselor at the IDB, reported Tagitis’
disappearance to the Jolo Police Station.8 On November 7, 2007, Kunnong executed a
sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis’
disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition for the
Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P.
Arcilla.10 The petition was directed against Lt. Gen. Alexander Yano, Commanding
General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP);
Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG);
Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen.
Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror
Task Force Comet [collectively referred to as petitioners]. After reciting Tagitis’ personal
circumstances and the facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to
take his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle
then sped away without the knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension
house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted
by phone and was not also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic] assisted
him to open the room of Engr. Tagitis, where they discovered that the personal
belongings of Engr. Tagitis, including cell phones, documents and other personal
belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis
could have been abducted by the Abu Sayyaf group and other groups known to be
fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone and
other responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines, who alerted the office of the Governor of ARMM who was then preparing to
attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from
some of their friends in the military who could help them find/locate the whereabouts of
her husband;
14. All of these efforts of the [respondent] did not produce any positive results except the
information from persons in the military who do not want to be identified that Engr. Tagitis
is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr. Tagitis
is in the custody of police intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest attempt of the police to involve
and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondent’s] request and pleadings failed to produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the
police that her husband, subject of the petition, was not missing but was with another
woman having good time somewhere, which is a clear indication of the [petitioners’]
refusal to help and provide police assistance in locating her missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subject’s whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp
Crame, Quezon City, and all these places have been visited by the [respondent] in
search for her husband, which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial help from friends and relatives
only to try complying [sic] to the different suggestions of these police officers, despite of
which, her efforts produced no positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons that
she should approach, but assured her not to worry because her husband is [sic] in good
hands;
22. The unexplained uncooperative behavior of the [petitioners] to the [respondent’s]
request for help and failure and refusal of the [petitioners] to extend the needed help,
support and assistance in locating the whereabouts of Engr. Tagitis who had been
declared missing since October 30, 2007 which is almost two (2) months now, clearly
indicates that the [petitioners] are actually in physical possession and custody of
[respondent’s] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [the respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of the [petitioners], their intelligence operatives and the like which are in
total violation of the subject’s human and constitutional rights, except the issuance of
a WRIT OF AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ of Amparo,
set the case for hearing on January 7, 2008, and directed the petitioners to file their
verified return within seventy-two (72) hours from service of the writ.11
In their verified Return filed during the hearing of January 27, 2008, the petitioners
denied any involvement in or knowledge of Tagitis’ alleged abduction. They argued that
the allegations of the petition were incomplete and did not constitute a cause of action
against them; were baseless, or at best speculative; and were merely based on hearsay
evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he
did not have any personal knowledge of, or any participation in, the alleged
disappearance; that he had been designated by President Gloria Macapagal Arroyo as
the head of a special body called TASK FORCE USIG, to address concerns about
extralegal killings and enforced disappearances; the Task Force, inter alia, coordinated
with the investigators and local police, held case conferences, rendered legal advice in
connection to these cases; and gave the following summary:13
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office ARMM
submitted a report on the alleged disappearance of one Engr. Morced Tagitis.
According to the said report, the victim checked-in at ASY Pension House on
October 30, 2007 at about 6:00 in the morning and then roamed around Jolo,
Sulu with an unidentified companion. It was only after a few days when the said
victim did not return that the matter was reported to Jolo MPS. Afterwards,
elements of Sulu PPO conducted a thorough investigation to trace and locate the
whereabouts of the said missing person, but to no avail. The said PPO is still
conducting investigation that will lead to the immediate findings of the
whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the
Director, CIDG. The said report stated among others that: subject person
attended an Education Development Seminar set on October 28, 2007
conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof. Matli.
On October 30, 2007, at around 5:00 o’clock in the morning, Engr. Tagitis
reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then
billeted at ASY Pension House. At about 6:15 o’clock in the morning of the same
date, he instructed his student to purchase a fast craft ticket bound for
Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on or
about 10:00 o’clock in the morning, Engr. Tagitis left the premises of ASY
Pension House as stated by the cashier of the said pension house. Later in the
afternoon, the student instructed to purchase the ticket arrived at the pension
house and waited for Engr. Tagitis, but the latter did not return. On its part, the
elements of 9RCIDU is now conducting a continuous case build up and
information gathering to locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all divisions of
the CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained
by covert CIDG-PNP Intelligence Operatives since October 30, 2007, but after
diligent and thorough search, records show that no such person is being
detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible efforts,
steps and actions available under the circumstances and continuously search and
investigate [sic] the instant case. This immense mandate, however, necessitates the
indispensable role of the citizenry, as the PNP cannot stand alone without the
cooperation of the victims and witnesses to identify the perpetrators to bring them before
the bar of justice and secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ of
Amparo, he caused the following:14
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable
Special Fourth Division of the Court of Appeals, I immediately directed the Investigation
Division of this Group [CIDG] to conduct urgent investigation on the alleged enforced
disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education Development
Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with
Prof. Abdulnasser Matli. On October 30, 2007, at around six o’clock in the morning he
arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the
Islamic Development Bank who was also one of the participants of the said seminar. He
checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30,
2007 with [sic] unidentified companion. At around six o’clock in the morning of even date,
Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In
the afternoon of the same date, Kunnong arrived at the pension house carrying the ticket
he purchased for Engr. Tagitis, but the latter was nowhere to be found anymore.
Kunnong immediately informed Prof. Abdulnasser Matli who reported the incident to the
police. The CIDG is not involved in the disappearance of Engr. Morced Tagitis to make
out a case of an enforced disappearance which presupposes a direct or indirect
involvement of the government.
That herein [petitioner] searched all divisions and departments for a person named Engr.
Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP
Intelligence Operatives since October 30, 2007 and after a diligent and thorough
research records show that no such person is being detained in CIDG or any of its
department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr. Morced
Tagitis [sic] alleged enforced disappearance, the undersigned had undertaken immediate
investigation and will pursue investigations up to its full completion in order to aid in the
prosecution of the person or persons responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt. Leonardo
A. Espina’s affidavit which alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny any participation in the
alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October
30, 2007. As a matter of fact, nowhere in the writ was mentioned that the alleged
abduction was perpetrated by elements of PACER nor was there any indication that the
alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by our
men and by the alleged covert CIDG-PNP intelligence operatives alleged to have
abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged disappearance of
ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office, the
Police Anti-Crime and Emergency Response (PACER), a special task force created for
the purpose of neutralizing or eradicating kidnap-for-ransom groups which until now
continue to be one of the menace of our society is a respondent in kidnapping or illegal
detention case. Simply put, our task is to go after kidnappers and charge them in court
and to abduct or illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of
PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to
investigate, locate/search the subject, identify and apprehend the persons responsible, to
recover and preserve evidence related to the disappearance of ENGR. MORCED
TAGITIS, which may aid in the prosecution of the person or persons responsible, to
identify witnesses and obtain statements from them concerning the disappearance and
to determine the cause, manner, location and time of disappearance as well as any
pattern or practice that may have brought about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the disappearance of
ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax his
written report.
That the investigation and measures being undertaken to locate/search the subject in
coordination with Police Regional Office, Autonomous Region of Muslim Mindanao
(PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction not to leave any stone
unturned so to speak in the investigation until the perpetrators in the instant case are
brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF
AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao),
also submitted his affidavit detailing the actions that he had taken upon receipt of the
report on Tagitis’ disappearance, viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during the time of
the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of reported
enforced disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported
to me through Radio Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007
at around 3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic Development
Bank, appeared before the Office of the Chief of Police, Jolo Police Station, and reported
the disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic
Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken by
any member of the Philippine National Police but rather he just disappeared from ASY
Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30,
2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin Kunnong, a
student scholar, was requested by him to purchase a vessel ticket at the Office of
Weezam Express, however, when the student returned back to ASY Pension House, he
no longer found Engr. Tagitis there and when he immediately inquired at the information
counter regarding his whereabouts [sic], the person in charge in the counter informed
him that Engr. Tagitis had left the premises on October 30, 2007 around 1 o’clock p.m.
and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial Director of
Sulu Police Provincial Office and other units through phone call and text messages to
conduct investigation [sic] to determine the whereabouts of the aggrieved party and the
person or persons responsible for the threat, act or omission, to recover and preserve
evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain
statements from them concerning his disappearance, to determine the cause and
manner of his disappearance, to identify and apprehend the person or persons involved
in the disappearance so that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection Management
Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007
directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM
on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007
directing PD Sulu PPO to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO
reiterating our series of directives for investigation and directing him to undertake
exhaustive coordination efforts with the owner of ASY Pension House and
student scholars of IDB in order to secure corroborative statements regarding the
disappearance and whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing
him to maximize efforts to establish clues on the whereabouts of Engr. Tagitis by
seeking the cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or
whenever necessary, for them to voluntarily submit for polygraph examination
 with the NBI so as to expunge all clouds of doubt that they may somehow have
knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief,
Criminal Investigation and Detection Group, Police Regional Office 9,
Zamboanga City, requesting assistance to investigate the cause and unknown
disappearance of Engr. Tagitis considering that it is within their area of
operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December
30, 2007 addressed to PD Sulu PPO requiring them to submit complete
investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct
investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the
circumstances related to his disappearance and submitted the following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No.
SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they
are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo
Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown in the
following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing
him of the facts of the disappearance and the action being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the Director, Directorate
for Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of favorable
actions so far taken on the disappearance, the CA directed Gen. Goltiao – as the officer
in command of the area of disappearance – to form TASK FORCE TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim)
to head TASK FORCE TAGITIS.19 The CA subsequently set three hearings to monitor
whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in handling the
disappearance of Tagitis.20 As planned, (1) the first hearing would be to mobilize the
CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with
Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of Police
of Jolo, Sulu and the Chief of Police of Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an
intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police
Station, stating a possible motive for Tagitis’ disappearance.22 The intelligence report was
apparently based on the sworn affidavit dated January 4, 2008 of Muhammad
Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the
Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the
Philippines, who told the Provincial Governor of Sulu that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has
reportedly taken and carried away… more or less Five Million Pesos (P5,000,000.00)
deposited and entrusted to his … [personal] bank accounts by the Central Office of IDB,
Jeddah, Kingdom of Saudi Arabia, which [was] intended for the … IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be
responsible, he personally went to the CIDG office in Zamboanga City to conduct an
ocular inspection/investigation, particularly of their detention cells.24 PS Supt. Ajirim
stated that the CIDG, while helping TASK FORCE TAGITIS investigate the
disappearance of Tagitis, persistently denied any knowledge or complicity in any
abduction.25 He further testified that prior to the hearing, he had already mobilized and
given specific instructions to their supporting units to perform their respective tasks; that
they even talked to, but failed to get any lead from the respondent in Jolo.26 In his
submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation at the Headquarters 9
RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and
other PNP units in the area had no participation neither [sic] something to do with [sic]
mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt
has been raised regarding the emolument on the Islamic Development Bank Scholar
program of IDB that was reportedly deposited in the personal account of Engr. Tagitis by
the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic]
be done by resentment or sour grape among students who are applying for the scholar
[sic] and were denied which was allegedly conducted/screened by the subject being the
coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the
motive behind the disappearance of the subject might be due to the funds he maliciously
spent for his personal interest and wanted to elude responsibilities from the institution
where he belong as well as to the Islamic student scholars should the statement of Prof.
Matli be true or there might be a professional jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be dropped and
dismissed considering on [sic] the police and military actions in the area particularly the
CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct of its
intelligence monitoring and investigation for the early resolution of this instant case. But
rest assured, our office, in coordination with other law-enforcement agencies in the area,
are continuously and religiously conducting our investigation for the resolution of this
case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did
not appear to be exerting extraordinary efforts in resolving Tagitis’ disappearance on the
following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after the
hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested
for clear photographs when it should have been standard operating procedure in
kidnappings or disappearances that the first agenda was for the police to
secure clear pictures of the missing person, Engr. Morced Tagitis, for
dissemination to all parts of the country and to neighboring countries. It had been
three (3) months since GEN. JOEL GOLTIAO admitted having been informed on
November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged
bad elements of the CIDG. It had been more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It had been three (3) weeks
when battle formation was ordered through Task Force Tagitis, on January 17,
2008. It was only on January 28, 2008 when the Task Force Tagitis requested for
clear and recent photographs of the missing person, Engr. Morced Tagitis,
despite the Task Force Tagitis’ claim that they already had an "all points bulletin",
since November 5, 2007, on the missing person, Engr. Morced Tagitis. How
could the police look for someone who disappeared if no clear photograph had
been disseminated?
(2) Furthermore, Task Force Tagitis’ COL. AHIROM AJIRIM informed this Court
that P/Supt KASIM was designated as Col. Ahirom Ajirim’s replacement in the
latter’s official designated post. Yet, P/Supt KASIM’s subpoena was returned to
 this Court unserved. Since this Court was made to understand that it was P/Supt
KASIM who was the petitioner’s unofficial source of the military intelligence
information that Engr. Morced Tagitis was abducted by bad elements of the
CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM and Col.
Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the appearance of
Col. KASIM in response to this court’s subpoena and COL. KASIM could have
confirmed the military intelligence information that bad elements of the CIDG had
abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her husband.
She said that a friend from Zamboanga holding a high position in the military (whom she
did not then identify) gave her information that allowed her to "specify" her allegations,
"particularly paragraph 15 of the petition."29 This friend also told her that her husband
"[was] in good hands."30 The respondent also testified that she sought the assistance of
her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who
told her that "PNP CIDG is holding [her husband], Engineer Morced Tagitis."31 The
respondent recounted that she went to Camp Katitipan in Davao City where she met Col.
Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends
(who were then with her) a "highly confidential report" that contained the "alleged
activities of Engineer Tagitis" and informed her that her husband was abducted because
"he is under custodial investigation" for being a liaison for "J.I. or Jema’ah Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she is Tagitis’
second wife, and they have been married for thirteen years; Tagitis was divorced from
his first wife.33 She last communicated with her husband on October 29, 2007 at around
7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from
Zamboanga City.34
The respondent narrated that she learned of her husband’s disappearance on October
30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not
heard from her father since the time they arranged to meet in Manila on October 31,
2007.35 The respondent explained that it took her a few days (or on November 5, 2007) to
personally ask Kunnong to report her husband’s disappearance to the Jolo Police
Station, since she had the impression that her husband could not communicate with her
because his cellular phone’s battery did not have enough power, and that he would call
her when he had fully-charged his cellular phone’s battery.36
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col.
Ancanan). She met him in Camp Karingal, Zamboanga through her boss.37 She also
testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and
her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the
contents of the "highly confidential report" at Camp Katitipan, Davao City. The
respondent further narrated that the report indicated that her husband met with people
belonging to a terrorist group and that he was under custodial investigation. She then
told Col. Kasim that her husband was a diabetic taking maintenance medication, and
asked that the Colonel relay to the persons holding him the need to give him his
medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,39 signed
by the respondent, detailing her efforts to locate her husband which led to her meetings
with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her narrative
report concerning her meeting with Col. Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin.
Our flight from Davao City is 9:00 o’clock in the morning; we arrived at Zamboanga
Airport at around 10:00 o’clock. We [were] fetched by the two staffs of Col. Ancanan. We
immediately proceed [sic] to West Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed me
and got information about the personal background of Engr. Morced N. Tagitis. After he
gathered all information, he revealed to us the contents of text messages they got from
the cellular phone of the subject Engr. Tagitis. One of the very important text messages
of Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to
answer any telephone calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of Engr.
Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city. His
two staffs accompanied us to the mall to purchase our plane ticket going back to Davao
City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col.
Ancanan and I were discussing some points through phone calls. He assured me that my
husband is alive and he’s last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe
his given statements of the whereabouts of my husband, because I contacted some of
my friends who have access to the groups of MILF, MNLF and ASG. I called up Col.
Ancanan several times begging to tell me the exact location of my husband and who held
him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP,
Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan
told me that "Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo."
When I was in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I
was hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not
to contact any AFP officials and he promised me that he can solve the case of my
husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr.
Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao
City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis
was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to
contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis
took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City
looking for high-ranking official who can help me gather reliable information behind the
abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary,
accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to
Col. Kasim and we had a short conversation. And he assured me that he’ll do the best he
can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that I am to
go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to
reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends. That was
the time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly
connected [with] different terrorist [groups], one of which he mentioned in the report was
OMAR PATIK and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as
a supplier. These are the two information that I can still remember. It was written in a
long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the
one who read it for us.
He asked a favor to me that "Please don’t quote my Name! Because this is a raw report."
He assured me that my husband is alive and he is in the custody of the military for
custodial investigation. I told him to please take care of my husband because he has
aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs. Talbin
testified that she was with the respondent when she went to Zamboanga to see Col.
Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them
that there was a report and that he showed them a series of text messages from Tagitis’
cellular phone, which showed that Tagitis and his daughter would meet in Manila on
October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and Mini
Leong, to Camp Katitipan to talk to Col. Kasim.44 The respondent asked Col. Kasim if he
knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good
hands, although he was not certain whether he was with the PNP or with the Armed
Forces of the Philippines (AFP). She further recounted that based on the report Col.
Kasim read in their presence, Tagitis was under custodial investigation because he was
being charged with terrorism; Tagitis in fact had been under surveillance since January
2007 up to the time he was abducted when he was seen talking to Omar Patik and a
certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also told
them that he could not give a copy of the report because it was a "raw report."45 She also
related that the Col. Kasim did not tell them exactly where Tagitis was being kept,
although he mentioned Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also
emphasized that despite what his January 4, 2008 affidavit indicated,51 he never told PS
Supt. Pingay, or made any accusation, that Tagitis took away money entrusted to
him.52 Prof. Matli confirmed, however, that that he had received an e-mail report53 from
Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking
assistance of the office in locating the funds of IDB scholars deposited in Tagitis’
personal account.54
On cross-examination by the respondent’s counsel, Prof. Matli testified that his January
4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.55 Prof
Matli clarified that although he read the affidavit before signing it, he "was not so much
aware of… [its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of
the respondent’s testimony, particularly the allegation that he had stated that Tagitis was
in the custody of either the military or the PNP.57 Col. Kasim categorically denied the
statements made by the respondent in her narrative report, specifically: (1) that Tagitis
was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that
Tagitis was under the custody of the military, since he merely said to the respondent that
"your husband is in good hands" and is "probably taken cared of by his armed
abductors;" and (3) that Tagitis was under custodial investigation by the military, the PNP
or the CIDG Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he
received from his informant in Sulu did not indicate that Tagitis was in the custody of the
CIDG.59 He also stressed that the information he provided to the respondent was merely
a "raw report" sourced from "barangay intelligence" that still needed confirmation and
"follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the respondent
was given to him by his informant, who was a "civilian asset," through a letter which he
considered as "unofficial."61 Col. Kasim stressed that the letter was only meant for his
"consumption" and not for reading by others.62 He testified further that he destroyed the
letter right after he read it to the respondent and her companions because "it was not
important to him" and also because the information it contained had no importance in
relation with the abduction of Tagitis.63 He explained that he did not keep the letter
because it did not contain any information regarding the whereabouts of Tagitis and the
person(s) responsible for his abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police Senior
Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the
respondent’s allegation that Tagitis was in the custody of CIDG-Zamboanga City.65 Col.
Pante clarified that the CIDG was the "investigative arm" of the PNP, and that the CIDG
"investigates and prosecutes all cases involving violations in the Revised Penal Code
particularly those considered as heinous crimes."66 Col. Pante further testified that the
allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was
baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis’
reported disappearance.67 Col. Pante added that the four (4) personnel assigned to the
Sulu CIDT had no capability to conduct any "operation," since they were only assigned to
investigate matters and to monitor the terrorism situation.68 He denied that his office
conducted any surveillance on Tagitis prior to the latter’s disappearance.69 Col. Pante
further testified that his investigation of Tagitis’ disappearance was unsuccessful; the
investigation was "still facing a blank wall" on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 confirming that the disappearance of
Tagitis was an "enforced disappearance" under the United Nations (UN) Declaration on
the Protection of All Persons from Enforced Disappearances.72 The CA ruled that when
military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in
the abduction, the missing-person case qualified as an enforced disappearance. The
conclusion that the CIDG was involved was based on the respondent’s testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the information that the
CIDG, as the police intelligence arm, was involved in Tagitis’ abduction came from no
less than the military – an independent agency of government. The CA thus greatly relied
on the "raw report" from Col. Kasim’s asset, pointing to the CIDG’s involvement in
Tagitis’ abduction. The CA held that "raw reports" from an "asset" carried "great weight"
in the intelligence world. It also labeled as "suspect" Col. Kasim’s subsequent and
belated retraction of his statement that the military, the police, or the CIDG was involved
in the abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable" and "a bedlam of
speculation" police theories painting the disappearance as "intentional" on the part of
Tagitis. He had no previous brushes with the law or any record of overstepping the
bounds of any trust regarding money entrusted to him; no student of the IDB scholarship
program ever came forward to complain that he or she did not get his or her stipend. The
CA also found no basis for the police theory that Tagitis was "trying to escape from the
clutches of his second wife," on the basis of the respondent’s testimony that Tagitis was
a Muslim who could have many wives under the Muslim faith, and that there was "no
issue" at all when the latter divorced his first wife in order to marry the second. Finally,
the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM
paramilitary as the cause for Tagitis’ disappearance, since the respondent, the police
and the military noted that there was no acknowledgement of Tagitis’ abduction or
demand for payment of ransom – the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ to Tagitis
and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief
Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and
PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to
protect the life, liberty and security of Tagitis, with the obligation to provide monthly
reports of their actions to the CA. At the same time, the CA dismissed the petition against
the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael,
based on the finding that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA
denied the motion in its Resolution of April 9, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CA’s March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparo petition filed before
the CA; the sufficiency of the legal remedies the respondent took before petitioning for
the writ; the finding that the rights to life, liberty and security of Tagitis had been violated;
the sufficiency of evidence supporting the conclusion that Tagitis was abducted; the
conclusion that the CIDG Zamboanga was responsible for the abduction; and, generally,
the ruling that the respondent discharged the burden of proving the allegations of the
petition by substantial evidence.74
THE COURT’S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondent’s Amparo petition,
the petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo
Rule. Specifically, the petitioners allege that the respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis’
rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondent’s source of information;
3) allege that the abduction was committed at the petitioners’ instructions or with
their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have
custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance
of their duties in the investigation of Tagitis’ disappearance; and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege, among
others (in terms of the portions the petitioners cite):75
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent, and
how such threat or violation is committed with the attendant circumstances
detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as well
as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for the
threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete in every
detail in stating the threatened or actual violation of a victim’s rights. As in any other
initiatory pleading, the pleader must of course state the ultimate facts constituting the
cause of action, omitting the evidentiary details.76 In an Amparo petition, however, this
requirement must be read in light of the nature and purpose of the proceeding, which
addresses a situation of uncertainty; the petitioner may not be able to describe with
certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or
arrest him or her, or where the victim is detained, because these information may
purposely be hidden or covered up by those who caused the disappearance. In this type
of situation, to require the level of specificity, detail and precision that the petitioners
apparently want to read into the Amparo Rule is to make this Rule a token gesture of
judicial concern for violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the unique
Amparo situation, the test in reading the petition should be to determine whether it
contains the details available to the petitioner under the circumstances, while presenting
a cause of action showing a violation of the victim’s rights to life, liberty and security
through State or private party action. The petition should likewise be read in its totality,
rather than in terms of its isolated component parts, to determine if the required elements
– namely, of the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security – are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging in
normal activities, and thereafter was nowhere to be found despite efforts to locate him.
The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that
according to reliable information, police operatives were the perpetrators of the
abduction. It also clearly alleged how Tagitis’ rights to life, liberty and security were
violated when he was "forcibly taken and boarded on a motor vehicle by a couple of burly
men believed to be police intelligence operatives," and then taken "into custody by the
respondents’ police intelligence operatives since October 30, 2007, specifically by the
CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the
police to involve and connect [him] with different terrorist groups."77
These allegations, in our view, properly pleaded ultimate facts within the pleader’s
knowledge about Tagitis’ disappearance, the participation by agents of the State in this
disappearance, the failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation of his right to liberty.
Thus, the petition cannot be faulted for any failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of supporting
affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature
of the proceedings for the writ and to facilitate the resolution of the petition, the Amparo
Rule incorporated the requirement for supporting affidavits, with the annotation that these
can be used as the affiant’s direct testimony.78 This requirement, however, should not be
read as an absolute one that necessarily leads to the dismissal of the petition if not
strictly followed. Where, as in this case, the petitioner has substantially complied with the
requirement by submitting a verified petition sufficiently detailing the facts relied upon,
the strict need for the sworn statement that an affidavit represents is essentially fulfilled.
We note that the failure to attach the required affidavits was fully cured when the
respondent and her witness (Mrs. Talbin) personally testified in the CA hearings held on
January 7 and 17 and February 18, 2008 to swear to and flesh out the allegations of the
petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to establish at the earliest opportunity
the level of diligence the public authorities undertook in relation with the reported
disappearance.79
We reject the petitioners’ argument that the respondent’s petition did not comply with the
Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph
11 that Kunnong and his companions immediately reported Tagitis’ disappearance to the
police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had
disappeared. The police, however, gave them the "ready answer" that Tagitis could have
been abducted by the Abu Sayyaf group or other anti-government groups. The
respondent also alleged in paragraphs 17 and 18 of her petition that she filed a
"complaint" with the PNP Police Station in Cotobato and in Jolo, but she was told of "an
intriguing tale" by the police that her husband was having "a good time with another
woman." The disappearance was alleged to have been reported, too, to no less than the
Governor of the ARMM, followed by the respondent’s personal inquiries that yielded the
factual bases for her petition.80
These allegations, to our mind, sufficiently specify that reports have been made to the
police authorities, and that investigations should have followed. That the petition did not
state the manner and results of the investigation that the Amparo Rule requires, but
rather generally stated the inaction of the police, their failure to perform their duty to
investigate, or at the very least, their reported failed efforts, should not be a reflection on
the completeness of the petition. To require the respondent to elaborately specify the
names, personal circumstances, and addresses of the investigating authority, as well the
manner and conduct of the investigation is an overly strict interpretation of Section 5(d),
given the respondent’s frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the allegations of the petition
on the investigations undertaken are sufficiently complete for purposes of bringing the
petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition – that otherwise is not
supported by sufficient allegations to constitute a proper cause of action – as a means to
"fish" for evidence.81 The petitioners contend that the respondent’s petition did not specify
what "legally available efforts were taken by the respondent," and that there was an
"undue haste" in the filing of the petition when, instead of cooperating with authorities,
the respondent immediately invoked the Court’s intervention.
We do not see the respondent’s petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the present
case) allege "the actions and recourses taken to determine the fate or whereabouts of
the aggrieved party and the identity of the person responsible for the threat, act or
omission." The following allegations of the respondent’s petition duly outlined the actions
she had taken and the frustrations she encountered, thus compelling her to file her
petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to
take his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle
then sped away without the knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis
could [have been] abducted by the Abu Sayyaf group and other groups known to be
fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong
reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other
responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines who alerted the office of the Governor of ARMM who was then preparing to
attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from
some of their friends in the military who could help them find/locate the whereabouts of
her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis
is in the custody of police intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest attempt of the police to involve
and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [the respondent’s] request and pleadings failed to produce any positive
results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM
Police Headquarters again in Cotobato City and also to the different Police Headquarters
including the police headquarters in Davao City, in Zamboanga City, in Jolo, and in
Camp Crame, Quezon City, and all these places have been visited by the [respondent] in
search for her husband, which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial help from friends and relatives
only to try complying to the different suggestions of these police officers, despite of
which, her efforts produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of [the petitioners], their intelligence operatives and the like which are in
total violation of the subject’s human and constitutional rights, except the issuance of
a WRIT OF AMPARO.
Based on these considerations, we rule that the respondent’s petition for the Writ of
Amparo is sufficient in form and substance and that the Court of Appeals had every
reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule on the
Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a brief look at the
historical context of the writ and enforced disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State action first attracted
notice in Adolf Hitler’s Nact und Nebel Erlass or Night and Fog Decree of December 7,
1941.82 The Third Reich’s Night and Fog Program, a State policy, was directed at
persons in occupied territories "endangering German security"; they were transported
secretly to Germany where they disappeared without a trace. In order to maximize the
desired intimidating effect, the policy prohibited government officials from providing
information about the fate of these targeted persons.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking
and outraging the world when individuals, numbering anywhere from 6,000 to 24,000,
were reported to have "disappeared" during the military regime in Argentina. Enforced
disappearances spread in Latin America, and the issue became an international concern
when the world noted its widespread and systematic use by State security forces in that
continent under Operation Condor84 and during the Dirty War85 in the 1970s and 1980s.
The escalation of the practice saw political activists secretly arrested, tortured, and killed
as part of governments’ counter-insurgency campaigns. As this form of political brutality
became routine elsewhere in the continent, the Latin American media standardized the
term "disappearance" to describe the phenomenon. The victims of enforced
disappearances were called the "desaparecidos,"86 which literally means the
"disappeared ones."87 In general, there are three different kinds of "disappearance"
cases:
1) those of people arrested without witnesses or without positive identification of
the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant
and held in complete isolation for weeks or months while their families are unable
to discover their whereabouts and the military authorities deny having them in
custody until they eventually reappear in one detention center or another; and
3) those of victims of "salvaging" who have disappeared until their lifeless bodies
are later discovered.88
In the Philippines, enforced disappearances generally fall within the first two
categories,89 and 855 cases were recorded during the period of martial law from 1972
until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127 were
found dead. During former President Corazon C. Aquino’s term, 820 people were
reported to have disappeared and of these, 612 cases were documented. Of this
number, 407 remain missing, 108 surfaced alive and 97 were found dead. The number of
enforced disappearances dropped during former President Fidel V. Ramos’ term when
only 87 cases were reported, while the three-year term of former President Joseph E.
Estrada yielded 58 reported cases. KARAPATAN, a local non-governmental
organization, reports that as of March 31, 2008, the records show that there were a total
of 193 victims of enforced disappearance under incumbent President Gloria M. Arroyo’s
administration. The Commission on Human Rights’ records show a total of 636 verified
cases of enforced disappearances from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined
status.90 Currently, the United Nations Working Group on Enforced or Involuntary
Disappearance91 reports 619 outstanding cases of enforced or involuntary
disappearances covering the period December 1, 2007 to November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings and
enforced disappearances or threats thereof."93 We note that although the writ specifically
covers "enforced disappearances," this concept is neither defined nor penalized in this
jurisdiction. The records of the Supreme Court Committee on the Revision of Rules
(Committee) reveal that the drafters of the Amparo Rule initially considered providing an
elemental definition of the concept of enforced disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a
specific definition [for] extrajudicial killings and enforced disappearances. From that
definition, then we can proceed to formulate the rules, definite rules concerning the
same.
CHIEF JUSTICE PUNO: … As things stand, there is no law penalizing extrajudicial
killings and enforced disappearances… so initially also we have to [come up with] the
nature of these extrajudicial killings and enforced disappearances [to be covered by the
Rule] because our concept of killings and disappearances will define the jurisdiction of
the courts. So we’ll have to agree among ourselves about the nature of killings and
disappearances for instance, in other jurisdictions, the rules only cover state actors. That
is an element incorporated in their concept of extrajudicial killings and enforced
disappearances. In other jurisdictions, the concept includes acts and omissions not only
of state actors but also of non state actors. Well, more specifically in the case of the
Philippines for instance, should these rules include the killings, the disappearances
which may be authored by let us say, the NPAs or the leftist organizations and others.
So, again we need to define the nature of the extrajudicial killings and enforced
disappearances that will be covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of
Representatives96 and in the Senate97 on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these terms in
the Rule. The Committee instead focused on the nature and scope of the concerns within
its power to address and provided the appropriate remedy therefor, mindful that an
elemental definition may intrude into the ongoing legislative efforts.98
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws.99 The simple reason is that
the Legislature has not spoken on the matter; the determination of what acts are criminal
and what the corresponding penalty these criminal acts should carry are matters of
substantive law that only the Legislature has the power to enact under the country’s
constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial killings
and enforced disappearances, however, the Supreme Court is not powerless to act
under its own constitutional mandate to promulgate "rules concerning the protection and
enforcement of constitutional rights, pleading, practice and procedure in all
courts,"100 since extrajudicial killings and enforced disappearances, by their nature and
purpose, constitute State or private party violation of the constitutional rights of
individuals to life, liberty and security. Although the Court’s power is strictly procedural
and as such does not diminish, increase or modify substantive rights, the legal protection
that the Court can provide can be very meaningful through the procedures it sets in
addressing extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel the public
authorities to act on actual or threatened violations of constitutional rights. To state the
obvious, judicial intervention can make a difference – even if only procedurally – in a
situation when the very same investigating public authorities may have had a hand in the
threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do not rule
on any issue of criminal culpability for the extrajudicial killing or enforced disappearance.
This is an issue that requires criminal action before our criminal courts based on our
existing penal laws. Our intervention is in determining whether an enforced
disappearance has taken place and who is responsible or accountable for this
disappearance, and to define and impose the appropriate remedies to address it. The
burden for the public authorities to discharge in these situations, under the Rule on the
Writ of Amparo, is twofold. The first is to ensure that all efforts at disclosure and
investigation are undertaken under pain of indirect contempt from this Court when
governmental efforts are less than what the individual situations require. The second is to
address the disappearance, so that the life of the victim is preserved and his or her
liberty and security restored. In these senses, our orders and directives relative to the
writ are continuing efforts that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete determination of the fate and
the whereabouts of the victim, by the production of the disappeared person and the
restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights.101 It does not only violate the right to life,
liberty and security of the desaparecido; it affects their families as well through the denial
of their right to information regarding the circumstances of the disappeared family
member. Thus, enforced disappearances have been said to be "a double form of
torture," with "doubly paralyzing impact for the victims," as they "are kept ignorant of their
own fates, while family members are deprived of knowing the whereabouts of their
detained loved ones" and suffer as well the serious economic hardship and poverty that
in most cases follow the disappearance of the household breadwinner.102
The UN General Assembly first considered the issue of "Disappeared Persons" in
December 1978 under Resolution 33/173. The Resolution expressed the General
Assembly’s deep concern arising from "reports from various parts of the world relating to
enforced or involuntary disappearances," and requested the "UN Commission on Human
Rights to consider the issue of enforced disappearances with a view to making
appropriate recommendations."103
In 1992, in response to the reality that the insidious practice of enforced disappearance
had become a global phenomenon, the UN General Assembly adopted the Declaration
on the Protection of All Persons from Enforced Disappearance (Declaration).104 This
Declaration, for the first time, provided in its third preambular clause a working
description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or abducted
against their will or otherwise deprived of their liberty by officials of different branches or
levels of Government, or by organized groups or private individuals acting on behalf of,
or with the support, direct or indirect, consent or acquiescence of the Government,
followed by a refusal to disclose the fate or whereabouts of the persons concerned or a
refusal to acknowledge the deprivation of their liberty, which places such persons outside
the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the
International Convention for the Protection of All Persons from Enforced Disappearance
(Convention).105 The Convention was opened for signature in Paris, France on February
6, 2007.106 Article 2 of the Convention defined enforced disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is considered to be the
arrest, detention, abduction or any other form of deprivation of liberty by agents of the
State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is a
right not to be subject to enforced disappearance107 and that this right is non-
derogable.108 It provides that no one shall be subjected to enforced disappearance under
any circumstances, be it a state of war, internal political instability, or any other public
emergency. It obliges State Parties to codify enforced disappearance as an offense
punishable with appropriate penalties under their criminal law.109 It also recognizes the
right of relatives of the disappeared persons and of the society as a whole to know the
truth on the fate and whereabouts of the disappeared and on the progress and results of
the investigation.110 Lastly, it classifies enforced disappearance as a continuing offense,
such that statutes of limitations shall not apply until the fate and whereabouts of the
victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance as a
crime. The absence of a specific penal law, however, is not a stumbling block for action
from this Court, as heretofore mentioned; underlying every enforced disappearance is a
violation of the constitutional rights to life, liberty and security that the Supreme Court is
mandated by the Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is guided, in
acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound
by its Charter and by the various conventions we signed and ratified, particularly the
conventions touching on humans rights. Under the UN Charter, the Philippines pledged
to "promote universal respect for, and observance of, human rights and fundamental
freedoms for all without distinctions as to race, sex, language or religion."112 Although no
universal agreement has been reached on the precise extent of the "human rights and
fundamental freedoms" guaranteed to all by the Charter,113 it was the UN itself that
issued the Declaration on enforced disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as a denial
of the purposes of the Charter of the United Nations and as a grave and flagrant violation
of human rights and fundamental freedoms proclaimed in the Universal Declaration of
Human Rights and reaffirmed and developed in international instruments in this field.
[Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made in a
UN Declaration, the ban on enforced disappearance cannot but have its effects on the
country, given our own adherence to "generally accepted principles of international law
as part of the law of the land."115
In the recent case of Pharmaceutical and Health Care Association of the Philippines v.
Duque III,116 we held that:
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation method applies
when, by mere constitutional declaration, international law is deemed to have the
force of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of international law" as norms of general
or customary international law that are binding on all states. We held further:117
[G]enerally accepted principles of international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of international law today is Article 38(1)
of the Statute of the International Court of Justice, which provides that the Court shall
apply "international custom, as evidence of a general practice accepted as law."118 The
material sources of custom include State practice, State legislation, international and
national judicial decisions, recitals in treaties and other international instruments, a
pattern of treaties in the same form, the practice of international organs, and resolutions
relating to legal questions in the UN General Assembly.119 Sometimes referred to as
"evidence" of international law,120 these sources identify the substance and content of the
obligations of States and are indicative of the "State practice" and "opinio juris"
requirements of international law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American Convention on
Enforced Disappearance of Persons in June 1994.122 State parties undertook under this
Convention "not to practice, permit, or tolerate the forced disappearance of persons,
even in states of emergency or suspension of individual guarantees."123 One of the key
provisions includes the States’ obligation to enact the crime of forced disappearance in
their respective national criminal laws and to establish jurisdiction over such cases when
the crime was committed within their jurisdiction, when the victim is a national of that
State, and "when the alleged criminal is within its territory and it does not proceed to
extradite him," which can be interpreted as establishing universal jurisdiction among the
parties to the Inter-American Convention.124 At present, Colombia, Guatemala, Paraguay,
Peru and Venezuela have enacted separate laws in accordance with the Inter-American
Convention and have defined activities involving enforced disappearance to be
criminal.125
1avvphi1
Second, in Europe, the European Convention on Human Rights has no explicit provision
dealing with the protection against enforced disappearance. The European Court of
Human Rights (ECHR), however, has applied the Convention in a way that provides
ample protection for the underlying rights affected by enforced disappearance through
the Convention’s Article 2 on the right to life; Article 3 on the prohibition of torture; Article
5 on the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and
Article 13 on the right to an effective remedy. A leading example demonstrating the
protection afforded by the European Convention is Kurt v. Turkey,126 where the ECHR
found a violation of the right to liberty and security of the disappeared person when the
applicant’s son disappeared after being taken into custody by Turkish forces in the
Kurdish village of Agilli in November 1993. It further found the applicant (the disappeared
person’s mother) to be a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations undertaken. The ECHR
also saw the lack of any meaningful investigation by the State as a violation of Article
13.127
Third, in the United States, the status of the prohibition on enforced disappearance as
part of customary international law is recognized in the most recent edition of
Restatement of the Law: The Third,128 which provides that "[a] State violates international
law if, as a matter of State policy, it practices, encourages, or condones… (3) the murder
or causing the disappearance of individuals."129 We significantly note that in a related
matter that finds close identification with enforced disappearance – the matter of torture –
the United States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-
Irala130 that the prohibition on torture had attained the status of customary international
law. The court further elaborated on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision the
obligations of member nations under the Charter. Since their adoption, "(m)embers can
no longer contend that they do not know what human rights they promised in the Charter
to promote." Moreover, a U.N. Declaration is, according to one authoritative definition, "a
formal and solemn instrument, suitable for rare occasions when principles of great and
lasting importance are being enunciated." Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer fits into the dichotomy of ‘binding
treaty’ against ‘non-binding pronouncement,' but is rather an authoritative statement of
the international community." Thus, a Declaration creates an expectation of adherence,
and "insofar as the expectation is gradually justified by State practice, a declaration may
by custom become recognized as laying down rules binding upon the States." Indeed,
several commentators have concluded that the Universal Declaration has become, in
toto, a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International 1) the right to recognition as a person before the law;
Convention on Civil and Political Rights (ICCPR), to which the Philippines is both a
signatory and a State Party, the UN Human Rights Committee, under the Office of the 2) the right to liberty and security of the person;
High Commissioner for Human Rights, has stated that the act of enforced disappearance
violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading 3) the right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment) and 9 (right to liberty and security of the person) of the ICCPR, treatment or punishment;
and the act may also amount to a crime against humanity.131
4) the right to life, when the disappeared person is killed;
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International
Criminal Court (ICC) also covers enforced disappearances insofar as they are defined as 5) the right to an identity;
crimes against humanity,132 i.e., crimes "committed as part of a widespread or systematic
attack against any civilian population, with knowledge of the attack." While more than 6) the right to a fair trial and to judicial guarantees;
100 countries have ratified the Rome Statute,133 the Philippines is still merely a signatory
and has not yet ratified it. We note that Article 7(1) of the Rome Statute has been 7) the right to an effective remedy, including reparation and compensation;
incorporated in the statutes of other international and hybrid tribunals, including Sierra
Leone Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the 8) the right to know the truth regarding the circumstances of a disappearance.
Extraordinary Chambers in the Courts of Cambodia.134 In addition, the implementing
legislation of State Parties to the Rome Statute of the ICC has given rise to a number of 9) the right to protection and assistance to the family;
national criminal provisions also covering enforced disappearance.135
10) the right to an adequate standard of living;
While the Philippines is not yet formally bound by the terms of the Convention on
enforced disappearance (or by the specific terms of the Rome Statute) and has not 11) the right to health; and
formally declared enforced disappearance as a specific crime, the above recital shows
that enforced disappearance as a State practice has been repudiated by the international 12) the right to education [Emphasis supplied]
community, so that the ban on it is now a generally accepted principle of international
law, which we should consider a part of the law of the land, and which we should act Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
upon to the extent already allowed under our laws and the international conventions that
bind us. Article 2

The following civil or political rights under the Universal Declaration of Human Rights, the 3. Each State Party to the present Covenant undertakes:
ICCPR and the International Convention on Economic, Social and Cultural Rights
(ICESR) may be infringed in the course of a disappearance:136
 (a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State, and
to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the right to
an effective remedy under Article 2 of the ICCPR includes the obligation of the State to
investigate ICCPR violations promptly, thoroughly, and effectively, viz:137
15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant
rights, States Parties must ensure that individuals also have accessible and effective
remedies to vindicate those rights… The Committee attaches importance to States
Parties' establishing appropriate judicial and administrative mechanisms for addressing
claims of rights violations under domestic law… Administrative mechanisms are
particularly required to give effect to the general obligation to investigate allegations of
violations promptly, thoroughly and effectively through independent and impartial bodies.
A failure by a State Party to investigate allegations of violations could in and of itself give
rise to a separate breach of the Covenant. Cessation of an ongoing violation is an
essential element of the right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment No. 31
that failure to investigate as well as failure to bring to justice the perpetrators of ICCPR
violations could in and of itself give rise to a separate breach of the Covenant, thus:138
18. Where the investigations referred to in paragraph 15 reveal violations of certain
Covenant rights, States Parties must ensure that those responsible are brought to
justice. As with failure to investigate, failure to bring to justice perpetrators of such
violations could in and of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as criminal under
either domestic or international law, such as torture and similar cruel, inhuman and
degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced
disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for
these violations, a matter of sustained concern by the Committee, may well be an
important contributing element in the recurrence of the violations. When committed as
part of a widespread or systematic attack on a civilian population, these violations of the
Covenant are crimes against humanity (see Rome Statute of the International Criminal
Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to
security of persons is a guarantee of the protection of one’s right by the government,
held that:
The right to security of person in this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II, Section 11 of the 1987
Constitution. As the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights especially when they
are under threat. Protection includes conducting effective investigations,
organization of the government apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez Rodriguez
Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and be
assumed by the State as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon their offer of proof, without
an effective search for the truth by the government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right to
security" not only as a prohibition on the State against arbitrary deprivation of liberty, but
also as the imposition of a positive duty to afford protection to the right to liberty. The
Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from arbitrariness... Having
assumed control over that individual, it is incumbent on the authorities to account for his
or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities
to take effective measures to safeguard against the risk of disappearance and to conduct
a prompt effective investigation into an arguable claim that a person has been taken into
custody and has not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which
the Court made effective on October 24, 2007. Although the Amparo Rule still has gaps
waiting to be filled through substantive law, as evidenced primarily by the lack of a
concrete definition of "enforced disappearance," the materials cited above, among
others, provide ample guidance and standards on how, through the medium of the
Amparo Rule, the Court can provide remedies and protect the constitutional rights to life,
liberty and security that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the burden of
proving the allegations of the petition for the Writ of Amparo by the degree of proof
required by the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties
presented by enforced disappearance cases; these difficulties form part of the setting
that the implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself – the party whose involvement is
alleged – investigates enforced disappearances. Past experiences in other jurisdictions
show that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.141 Experts note that abductors are well organized, armed and usually
members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under some
form of governmental authority. In many countries the units that plan, implement and
execute the program are generally specialized, highly-secret bodies within the armed or
security forces. They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent any interference
by the "legal" police forces. These authorities take their victims to secret detention
centers where they subject them to interrogation and torture without fear of judicial or
other controls.142
In addition, there are usually no witnesses to the crime; if there are, these witnesses are
usually afraid to speak out publicly or to testify on the disappearance out of fear for their
own lives.143 We have had occasion to note this difficulty in Secretary of Defense v.
Manalo144 when we acknowledged that "where powerful military officers are implicated,
the hesitation of witnesses to surface and testify against them comes as no surprise."
Second, deliberate concealment of pertinent evidence of the disappearance is a distinct
possibility; the central piece of evidence in an enforced disappearance – i.e., the corpus
delicti or the victim’s body – is usually concealed to effectively thwart the start of any
investigation or the progress of one that may have begun.145 The problem for the victim’s
family is the State’s virtual monopoly of access to pertinent evidence. The Inter-American
Court of Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez146 that inherent to the practice of enforced disappearance is the deliberate use
of the State’s power to destroy the pertinent evidence. The IACHR described the
concealment as a clear attempt by the State to commit the perfect crime.147
Third is the element of denial; in many cases, the State authorities deliberately deny that
the enforced disappearance ever occurred.148 "Deniability" is central to the policy of
enforced disappearances, as the absence of any proven disappearance makes it easier
to escape the application of legal standards ensuring the victim’s human
rights.149 Experience shows that government officials typically respond to requests for
information about desaparecidos by saying that they are not aware of any
disappearance, that the missing people may have fled the country, or that their names
have merely been invented.150
These considerations are alive in our minds, as these are the difficulties we confront, in
one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding
and the degree and burden of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary. However,
the court, justice or judge may call for a preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. – The parties shall
establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as required
by applicable laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent public official or employee cannot invoke the presumption that official
duty has been regularly performed or evade responsibility or liability.
Section 18. Judgment. – … If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege shall be denied. [Emphasis supplied]
These characteristics – namely, of being summary and the use of substantial evidence
as the required level of proof (in contrast to the usual preponderance of evidence or
proof beyond reasonable doubt in court proceedings) – reveal the clear intent of the
framers of the Amparo Rule to have the equivalent of an administrative proceeding,
albeit judicially conducted, in addressing Amparo situations. The standard of diligence
required – the duty of public officials and employees to observe extraordinary diligence –
point, too, to the extraordinary measures expected in the protection of constitutional
rights and in the consequent handling and investigation of extra-judicial killings and
enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the
substance and form requirements of a Writ of Amparo petition, as discussed above, and
prove the allegations by substantial evidence. Once a rebuttable case has been proven,
the respondents must then respond and prove their defenses based on the standard of
diligence required. The rebuttable case, of course, must show that an enforced
disappearance took place under circumstances showing a violation of the victim’s
constitutional rights to life, liberty or security, and the failure on the part of the
investigating authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations151 provided the Court its
first opportunity to define the substantial evidence required to arrive at a valid decision in
administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. [citations omitted]
The statute provides that ‘the rules of evidence prevailing in courts of law and equity
shall not be controlling.’ The obvious purpose of this and similar provisions is to free
administrative boards from the compulsion of technical rules so that the mere admission
of matter which would be deemed incompetent in judicial proceedings would not
invalidate the administrative order. [citations omitted] But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders without a
basis in evidence having rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the Court’s first petition for a Writ of
Amparo, we recognized that the full and exhaustive proceedings that the substantial
evidence standard regularly requires do not need to apply due to the summary nature of
Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal guilt requiring
proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require
full and exhaustive proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the
unique difficulties presented by the nature of enforced disappearances, heretofore
discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be
given a chance to achieve its objectives. These evidentiary difficulties compel the Court
to adopt standards appropriate and responsive to the circumstances, without
transgressing the due process requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR – faced with a lack of direct
evidence that the government of Honduras was involved in Velasquez Rodriguez’
disappearance – adopted a relaxed and informal evidentiary standard, and established
the rule that presumes governmental responsibility for a disappearance if it can be
proven that the government carries out a general practice of enforced disappearances
and the specific case can be linked to that practice.154 The IACHR took note of the
realistic fact that enforced disappearances could be proven only through circumstantial
or indirect evidence or by logical inference; otherwise, it was impossible to prove that an
individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct evidence,
whether testimonial or documentary, is not the only type of evidence that may be
legitimately considered in reaching a decision. Circumstantial evidence, indicia, and
presumptions may be considered, so long as they lead to conclusions consistent with the
facts.
131. Circumstantial or presumptive evidence is especially important in allegations of
disappearances, because this type of repression is characterized by an attempt to
suppress all information about the kidnapping or the whereabouts and fate of the victim.
[Emphasis supplied]
In concluding that the disappearance of Manfredo Velásquez (Manfredo) was carried out
by agents who acted under cover of public authority, the IACHR relied on circumstantial
evidence including the hearsay testimony of Zenaida Velásquez, the victim’s sister, who
described Manfredo’s kidnapping on the basis of conversations she had with witnesses
who saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told
the Court that a former Honduran military official had announced that Manfredo was
kidnapped by a special military squadron acting under orders of the Chief of the Armed
Forces.155 The IACHR likewise considered the hearsay testimony of a second witness
who asserted that he had been told by a Honduran military officer about the
disappearance, and a third witness who testified that he had spoken in prison to a man
who identified himself as Manfredo.156
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be used
as an effective counter-measure; we only compound the problem if a wrong is addressed
by the commission of another wrong. On the other hand, we cannot be very strict in our
evidentiary rules and cannot consider evidence the way we do in the usual criminal and
civil cases; precisely, the proceedings before us are administrative in nature where, as a
rule, technical rules of evidence are not strictly observed. Thus, while we must follow the
substantial evidence rule, we must observe flexibility in considering the evidence we
shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in
their totality, and to consider any evidence otherwise inadmissible under our usual rules
to be admissible if it is consistent with the admissible evidence adduced. In other words,
we reduce our rules to the most basic test of reason – i.e., to the relevance of the
evidence to the issue at hand and its consistency with all other pieces of adduced
evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum
test.
We note in this regard that the use of flexibility in the consideration of evidence is not at
all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on
Examination of a Child Witness157 is expressly recognized as an exception to the hearsay
rule. This Rule allows the admission of the hearsay testimony of a child describing any
act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject
to certain prerequisites and the right of cross-examination by the adverse party. The
admission of the statement is determined by the court in light of specified subjective and
objective considerations that provide sufficient indicia of reliability of the child
witness.158 These requisites for admission find their counterpart in the present case under
the above-described conditions for the exercise of flexibility in the consideration of
evidence, including hearsay evidence, in extrajudicial killings and enforced
disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced disappearance within
the meaning of this term under the UN Declaration we have cited?
The Convention defines enforced disappearance as "the arrest, detention, abduction or
any other form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed by
a refusal to acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law."159 Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:160
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting with
the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the
fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared. The direct
evidence at hand only shows that Tagitis went out of the ASY Pension House after
depositing his room key with the hotel desk and was never seen nor heard of again. The
undisputed conclusion, however, from all concerned – the petitioner, Tagitis’ colleagues
and even the police authorities – is that Tagistis disappeared under mysterious
circumstances and was never seen again. The respondent injected the causal element in
her petition and testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga
abducted or arrested Tagitis. If at all, only the respondent’s allegation that Tagistis was
under CIDG Zamboanga custody stands on record, but it is not supported by any other
evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as her
bases for her allegation that Tagistis had been placed under government custody (in
contrast with CIDG Zamboanga custody). The first was an unnamed friend in
Zamboanga (later identified as Col. Ancanan), who occupied a high position in the
military and who allegedly mentioned that Tagitis was in good hands. Nothing came out
of this claim, as both the respondent herself and her witness, Mrs. Talbin, failed to
establish that Col. Ancanan gave them any information that Tagitis was in government
custody. Col. Ancanan, for his part, admitted the meeting with the respondent but denied
giving her any information about the disappearance.
The more specific and productive source of information was Col. Kasim, whom the
respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City.
To quote the relevant portions of the respondent’s testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of your
husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me
that my husband is being abducted [sic] because he is under custodial investigation
because he is allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jema’ah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of yours in
that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those reports are
highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, ma’am.
Q: And a certain Col. Kasim told you that your husband was abducted and under
custodial investigation?
A: Yes, ma’am.
Q: And you mentioned that he showed you a report?
A: Yes, ma’am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were highly
confidential. That is a military report, ma’am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma’am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma’am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental,
ma’am.162
xxxx
Q: When you were told that your husband is in good hands, what was your reaction and
what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other people na
parang mga terorista na mga tao. Tapos at the end of the report is [sic] under custodial
investigation. So I told him "Colonel, my husband is sick. He is diabetic at
nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya
ng gamot, ma’am."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being held by
the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na
effort ko because I know that they would deny it, ma’am.164
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her
testimony that her husband was abducted and held under custodial investigation by the
PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November 24,
2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if he can
furnish us the location of Engr. Tagitis. And he was reading this report. He told us that
Engr. Tagitis is in good hands. He is with the military, but he is not certain whether he is
with the AFP or PNP. He has this serious case. He was charged of terrorism because he
was under surveillance from January 2007 up to the time that he was abducted. He told
us that he was under custodial investigation. As I’ve said earlier, he was seen under
surveillance from January. He was seen talking to Omar Patik, a certain Santos of
Bulacan who is also a Balik Islam and charged with terrorism. He was seen carrying
boxes of medicines. Then we asked him how long will he be in custodial investigation.
He said until we can get some information. But he also told us that he cannot give us that
report because it was a raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in document form, in a piece of
paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I don’t know if it was
computerized but I’m certain that it was typewritten. I’m not sure if it used computer, fax
or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading in a
summary form?
A: Sometimes he was glancing to the report and talking to us, sir. 165
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao,
Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I’ve mentioned, we just waited because that raw information that
he was reading to us [sic] after the custodial investigation, Engineer Tagitis will be
released. [Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and that he
provided them information based on the input of an unnamed asset. He simply claimed in
his testimony that the "informal letter" he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG. He also stressed that the
information he provided the respondent was merely a "raw report" from "barangay
intelligence" that still needed confirmation and "follow up" as to its veracity.167
To be sure, the respondent’s and Mrs. Talbin’s testimonies were far from perfect, as the
petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a
"military officer" who told her that "her husband is being abducted because he is under
custodial investigation because he is allegedly ‘parang liason ng J.I.’" The petitioners
also noted that "Mrs. Talbin’s testimony imputing certain statements to Sr. Supt. Kasim
that Engr. Tagitis is with the military, but he is not certain whether it is the PNP or AFP is
not worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who would
certainly know that the PNP is not part of the military."
Upon deeper consideration of these inconsistencies, however, what appears clear to us
is that the petitioners never really steadfastly disputed or presented evidence to refute
the credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that should not affect the
credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material
points.168 We note, for example, that these witnesses are lay people in so far as military
and police matters are concerned, and confusion between the police and the military is
not unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather
than prevarication169and only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the latter cannot but
generate suspicion that the material circumstances they testified to were integral parts of
a well thought of and prefabricated story.170
Based on these considerations and the unique evidentiary situation in enforced
disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informant’s letter, that Tagitis, reputedly a
liaison for the JI and who had been under surveillance since January 2007, was "in good
hands" and under custodial investigation for complicity with the JI after he was seen
talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik Islam" charged with
terrorism. The respondent’s and Mrs. Talbin’s testimonies cannot simply be defeated by
Col. Kasim’s plain denial and his claim that he had destroyed his informant’s letter, the
critical piece of evidence that supports or negates the parties’ conflicting claims. Col.
Kasim’s admitted destruction of this letter – effectively, a suppression of this evidence –
raises the presumption that the letter, if produced, would be proof of what the respondent
claimed.171 For brevity, we shall call the evidence of what Col. Kasim reported to the
respondent to be the "Kasim evidence."
Given this evidence, our next step is to decide whether we can accept this evidence, in
lieu of direct evidence, as proof that the disappearance of Tagitis was due to action with
government participation, knowledge or consent and that he was held for custodial
investigation. We note in this regard that Col. Kasim was never quoted to have said that
the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only
implies government intervention through the use of the term "custodial investigation," and
does not at all point to CIDG Zamboanga as Tagitis’ custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence – i.e.,
evidence whose probative value is not based on the personal knowledge of the
witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of
some other person not on the witness stand (the informant).172
To say that this piece of evidence is incompetent and inadmissible evidence of what it
substantively states is to acknowledge – as the petitioners effectively suggest – that in
the absence of any direct evidence, we should simply dismiss the petition. To our mind,
an immediate dismissal for this reason is no different from a statement that the Amparo
Rule – despite its terms – is ineffective, as it cannot allow for the special evidentiary
difficulties that are unavoidably present in Amparo situations, particularly in extrajudicial
killings and enforced disappearances. The Amparo Rule was not promulgated with this
intent or with the intent to make it a token gesture of concern for constitutional rights. It
was promulgated to provide effective and timely remedies, using and profiting from local
and international experiences in extrajudicial killings and enforced disappearances, as
the situation may require. Consequently, we have no choice but to meet the evidentiary
difficulties inherent in enforced disappearances with the flexibility that these difficulties
demand. 1avvphi1
To give full meaning to our Constitution and the rights it protects, we hold that, as in
Velasquez, we should at least take a close look at the available evidence to determine
the correct import of every piece of evidence – even of those usually considered
inadmissible under the general rules of evidence – taking into account the surrounding
circumstances and the test of reason that we can use as basic minimum admissibility
requirement. In the present case, we should at least determine whether the Kasim
evidence before us is relevant and meaningful to the disappearance of Tagistis and
reasonably consistent with other evidence in the case.
The evidence about Tagitis’ personal circumstances surrounded him with an air of
mystery. He was reputedly a consultant of the World Bank and a Senior Honorary
Counselor for the IDB who attended a seminar in Zamboanga and thereafter proceded to
Jolo for an overnight stay, indicated by his request to Kunnong for the purchase of a
return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records
indicates the purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli,
early on informed the Jolo police that Tagitis may have taken funds given to him in trust
for IDB scholars. Prof Matli later on stated that he never accused Tagitis of taking away
money held in trust, although he confirmed that the IDB was seeking assistance in
locating funds of IDB scholars deposited in Tagitis’ personal account. Other than these
pieces of evidence, no other information exists in the records relating to the personal
circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances. While
the Amparo petition recited that he was taken away by "burly men believed to be police
intelligence operatives," no evidence whatsoever was introduced to support this
allegation. Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m.
of October 30, 2007 – the day he arrived in Jolo – and was never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct evidence on
the above aspects of the case, as it supplies the gaps that were never looked into and
clarified by police investigation. It is the evidence, too, that colors a simple missing
person report into an enforced disappearance case, as it injects the element of
participation by agents of the State and thus brings into question how the State reacted
to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the respondent,
characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong
that Tagitis could have been taken by the Abu Sayyaf or other groups fighting the
government. No evidence was ever offered on whether there was active Jolo police
investigation and how and why the Jolo police arrived at this conclusion. The
respondent’s own inquiry in Jolo yielded the answer that he was not missing but was with
another woman somewhere. Again, no evidence exists that this explanation was arrived
at based on an investigation. As already related above, the inquiry with Col. Ancanan in
Zamboanga yielded ambivalent results not useful for evidentiary purposes. Thus, it was
only the inquiry from Col. Kasim that yielded positive results. Col. Kasim’s story,
however, confirmed only the fact of his custodial investigation (and, impliedly, his arrest
or abduction), without identifying his abductor/s or the party holding him in custody. The
more significant part of Col. Kasim’s story is that the abduction came after Tagitis was
seen talking with Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged
with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu.
None of the police agencies participating in the investigation ever pursued these leads.
Notably, Task Force Tagitis to which this information was relayed did not appear to have
lifted a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent
to the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and these
reports merely reiterated the open-ended initial report of the disappearance. The CIDG
directed a search in all of its divisions with negative results. These, to the PNP Chief,
constituted the exhaustion "of all possible efforts." PNP-CIDG Chief General Edgardo M.
Doromal, for his part, also reported negative results after searching "all divisions and
departments [of the CIDG] for a person named Engr. Morced N. Tagitis . . . and after a
diligent and thorough research, records show that no such person is being detained in
the CIDG or any of its department or divisions." PNP-PACER Chief PS Supt. Leonardo
A. Espina and PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao
did no better in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA constituted
Task Force Tagitis, with specific directives on what to do. The negative results reflected
in the Returns on the writ were again replicated during the three hearings the CA
scheduled. Aside from the previously mentioned "retraction" that Prof. Matli made to
correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim
reiterated in his testimony that the CIDG consistently denied any knowledge or complicity
in any abduction and said that there was no basis to conclude that the CIDG or any
police unit had anything to do with the disappearance of Tagitis; he likewise considered it
premature to conclude that Tagitis simply ran away with the money in his custody. As
already noted above, the Task Force notably did not pursue any investigation about the
personal circumstances of Tagitis, his background in relation to the IDB and the
background and activities of this Bank itself, and the reported sighting of Tagistis with
terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to have ever
been made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of
the "assets" who are indispensable in investigations of this nature. These omissions and
negative results were aggravated by the CA findings that it was only as late as January
28, 2008 or three months after the disappearance that the police authorities requested
for clear pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena
was not served, despite the fact that he was designated as Ajirim’s replacement in the
latter’s last post. Thus, Col. Kasim was not then questioned. No investigation – even an
internal one – appeared to have been made to inquire into the identity of Col. Kasim’s
"asset" and what he indeed wrote.
We glean from all these pieces of evidence and developments a consistency in the
government’s denial of any complicity in the disappearance of Tagitis, disrupted only by
the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim,
however, eventually denied that he ever made the disclosure that Tagitis was under
custodial investigation for complicity in terrorism. Another distinctive trait that runs
through these developments is the government’s dismissive approach to the
disappearance, starting from the initial response by the Jolo police to Kunnong’s initial
reports of the disappearance, to the responses made to the respondent when she herself
reported and inquired about her husband’s disappearance, and even at Task Force
Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best haphazard
since the authorities were looking for a man whose picture they initially did not even
secure. The returns and reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of Tagitis in their various
departments and divisions. To point out the obvious, if the abduction of Tagitis was a
"black" operation because it was unrecorded or officially unauthorized, no record of
custody would ever appear in the CIDG records; Tagitis, too, would not be detained in
the usual police or CIDG detention places. In sum, none of the reports on record
contains any meaningful results or details on the depth and extent of the investigation
made. To be sure, reports of top police officials indicating the personnel and units they
directed to investigate can never constitute exhaustive and meaningful investigation, or
equal detailed investigative reports of the activities undertaken to search for Tagitis.
Indisputably, the police authorities from the very beginning failed to come up to the
extraordinary diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasim’s disclosure, made in an
unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard investigations
cannot but point to this conclusion. For why would the government and its officials
engage in their chorus of concealment if the intent had not been to deny what they
already knew of the disappearance? Would not an in-depth and thorough investigation
that at least credibly determined the fate of Tagitis be a feather in the government’s cap
under the circumstances of the disappearance? From this perspective, the evidence and
developments, particularly the Kasim evidence, already establish a concrete case of
enforced disappearance that the Amparo Rule covers. From the prism of the UN
Declaration, heretofore cited and quoted,173 the evidence at hand and the developments
in this case confirm the fact of the enforced disappearance and government complicity,
under a background of consistent and unfounded government denials and haphazard
handling. The disappearance as well effectively placed Tagitis outside the protection of
the law – a situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the same,
the facts of this case run very close to those of Timurtas v. Turkey,174 a case decided by
ECHR. The European tribunal in that case acted on the basis of the photocopy of a
"post-operation report" in finding that Abdulvahap Timurtas (Abdulvahap) was abducted
and later detained by agents (gendarmes) of the government of Turkey. The victim's
father in this case brought a claim against Turkey for numerous violations of the
European Convention, including the right to life (Article 2) and the rights to liberty and
security of a person (Article 5). The applicant contended that on August 14, 1993,
gendarmes apprehended his son, Abdulvahap for being a leader of the Kurdish Workers’
Party (PKK) in the Silopi region. The petition was filed in southeast Turkey nearly six and
one half years after the apprehension. According to the father, gendarmes first detained
Abdulvahap and then transferred him to another detainment facility. Although there was
no eyewitness evidence of the apprehension or subsequent detainment, the applicant
presented evidence corroborating his version of events, including a photocopy of a post-
operation report signed by the commander of gendarme operations in Silopi, Turkey. The
report included a description of Abdulvahap's arrest and the result of a subsequent
interrogation during detention where he was accused of being a leader of the PKK in the
Silopi region. On this basis, Turkey was held responsible for Abdulvahap’s enforced
disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal setting and
the Amparo remedy this Court has established, as applied to the unique facts and
developments of this case – we believe and so hold that the government in general,
through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations
together with Col. Kasim, should be held fully accountable for the enforced
disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975,
otherwise known as the "PNP Law,"175 specifies the PNP as the governmental office with
the mandate "to investigate and prevent crimes, effect the arrest of criminal offenders,
bring offenders to justice and assist in their prosecution." The PNP-CIDG, as Col. Jose
Volpane Pante (then Chief of CIDG Region 9) testified, is the "investigative arm" of the
PNP and is mandated to "investigate and prosecute all cases involving violations of the
Revised Penal Code, particularly those considered as heinous crimes."176 Under the PNP
organizational structure, the PNP-CIDG is tasked to investigate all major crimes involving
violations of the Revised Penal Code and operates against organized crime groups,
unless the President assigns the case exclusively to the National Bureau of Investigation
(NBI).177 No indication exists in this case showing that the President ever directly
intervened by assigning the investigation of Tagitis’ disappearance exclusively to the
NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the ones
who were remiss in their duties when the government completely failed to exercise the
extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG
investigations and actions, and the validation of their results through hearings the CA
may deem appropriate to conduct. For purposes of these investigations, the PNP/PNP-
CIDG shall initially present to the CA a plan of action for further investigation, periodically
reporting the detailed results of its investigation to the CA for its consideration and action.
On behalf of this Court, the CA shall pass upon: the need for the PNP and the PNP-
CIDG to make disclosures of matters known to them as indicated in this Decision and as
further CA hearings may indicate; the petitioners’ submissions; the sufficiency of their
investigative efforts; and submit to this Court a quarterly report containing its actions and
recommendations, copy furnished the petitioners and the respondent, with the first report
due at the end of the first quarter counted from the finality of this Decision. The PNP and
the PNP-CIDG shall have one (1) full year to undertake their investigation. The CA shall
submit its full report for the consideration of this Court at the end of the 4th quarter
counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners’ petition for review on
certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March
7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an
enforced disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility,
declaring the government (through the PNP and the PNP-CIDG) and Colonel
Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer
Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its
Chief, directly responsible for the disclosure of material facts known to the
government and to their offices regarding the disappearance of Engineer Morced
N. Tagitis, and for the conduct of proper investigations using extraordinary
diligence, with the obligation to show investigation results acceptable to this
Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding
him accountable with the obligation to disclose information known to him and to
his "assets" in relation with the enforced disappearance of Engineer Morced N.
Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings
directed at the monitoring of the PNP and PNP-CIDG investigations, actions and
the validation of their results; the PNP and the PNP-CIDG shall initially present to
the Court of Appeals a plan of action for further investigation, periodically
reporting their results to the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with
its recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs
as petitioners and the respondent, with the first report due at the end of the first
quarter counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the
 consideration of this Court at the end of the 4th quarter counted from the finality
of this Decision;
These directives and those of the Court of Appeals’ made pursuant to this Decision shall
be given to, and shall be directly enforceable against, whoever may be the incumbent
Chiefs of the Philippine National Police and its Criminal Investigation and Detection
Group, under pain of contempt from this Court when the initiatives and efforts at
disclosure and investigation constitute less than the extraordinary diligence that the Rule
on the Writ of Amparo and the circumstances of this case demand. Given the unique
nature of Amparo cases and their varying attendant circumstances, these directives –
particularly, the referral back to and monitoring by the CA – are specific to this case and
are not standard remedies that can be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-
Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
SO ORDERED.
[G.R. No. 182498 : February 16, 2010]
GEN. AVELINO I. RAZON, JR., CHIEF, PHILIPPINE NATIONAL POLICE
(PNP); POLICE CHIEF SUPERINTENDENT RAUL CASTAÑEDA, CHIEF,
CRIMINAL INVESTIGATION AND DETECTION GROUP (CIDG); POLICE
SENIOR SUPERINTENDENT LEONARDO A. ESPINA, CHIEF, POLICE
ANTI-CRIME AND EMERGENCY RESPONSE (PACER); AND GEN. JOEL R.
GOLTIAO, REGIONAL DIRECTOR OF ARMM, PNP, PETITIONERS, VS.
MARY JEAN B. TAGITIS, HEREIN REPRESENTED BY ATTY. FELIPE P.
ARCILLA, JR., ATTORNEY-IN-FACT, RESPONDENT.
RESOLUTION
BRION, J.:
We resolve in this Resolution the Motion for Reconsideration filed by the
petitioners -- Gen. Avelino I. Razon, former Chief of the Philippine National
Police (PNP);[1] Gen. Edgardo M. Doromal, former Chief of the Criminal
Investigation and Detection Group (CIDG), PNP;[2] Police Senior
Superintendent Leonardo A. Espina, former Chief of the Police Anti-Crime and
Emergency Response (PACER), PNP;[3] and Gen. Joel Goltiao, former Regional
Director of the PNP-Autonomous Region of Muslim Mindanao [4] (petitioners) --
addressing our Decision of December 3, 2009. This Decision affirmed the
Court of Appeals' (CA) decision of March 7, 2008 confirming the enforced
disappearance of Engineer Morced N. Tagitis (Tagitis) and granting the Writ
of Amparo.
Our December 3, 2009 Decision was based, among other considerations, on
the finding that Col. Julasirim Ahadin Kasim (Col. Kasim) informed the
respondent Mary Jean Tagitis (respondent) and her friends that her husband
had been under surveillance since January 2007 because an informant
notified the authorities, through a letter, that Tagitis was a liaison for the JI;
[5]
 that he was "in good hands" and under custodial investigation for
complicity with the JI after he was seen talking to one Omar Patik and a
certain "Santos" of Bulacan, a "Balik Islam" charged with terrorism (Kasim
evidence).
We considered Col. Kasim's information, together with the consistent denials
by government authorities of any complicity in the disappearance of Tagitis,
the dismissive approach of the police authorities to the report of the
disappearance, as well as the haphazard investigations conducted that did
not translate into any meaningful results, to be indicative of government
complicity in the disappearance of Tagitis (for purposes of the Rule on the
Writ of Amparo).

We explained that although the Kasim evidence was patently hearsay (and
was thus incompetent and inadmissible under our rules of evidence), the
unique evidentiary difficulties posed by enforced disappearance cases compel
us to adopt standards that were appropriate and responsive to the
evidentiary difficulties faced. We noted that while we must follow the
substantial evidence rule, we must also observe flexibility in considering the
evidence that we shall take into account. Thus, we introduced a new
evidentiary standard for Writ of Amparo  cases in this wise:
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 the other pieces of adduced
evidence, Thus, even hearsay evidence can be admitted if it satisfies
this minimum test. [Emphasis in the original]
We held further that the Kasim evidence was crucial to the resolution of the
present case for two reasons: first, it supplied the gaps that were never
looked into or clarified by police investigation; and second, it qualified a
simple missing person report into an enforced disappearance case by
injecting the element of participation by agents of the State and thus brought
into question how the State reacted to the disappearance.
Based on these considerations, we held that the government in general,
through the PNP and the PNP-CIDG, and in particular, the Chiefs of these
organizations, together with Col. Kasim, were fully accountable[6] for the
enforced disappearance of Tagitis. Specifically, we held Col. Kasim
accountable for his failure to disclose under oath information relating to the
enforced disappearance; for the purpose of this accountability, we ordered
that Col. Kasim be impleaded as a party to this case. Similarly, we also held
the PNP accountable for the suppression of vital information that Col. Kasim
could, but did not, provide with the same obligation of disclosure that Col.
Kasim carries.
The Motion for Reconsideration
The petitioners cited two grounds in support of their Motion for
Reconsideration.
First, the petitioners argue that there was no sufficient evidence to conclude
that Col. Kasim's disclosure unequivocally points to some government
complicity in the disappearance of Tagitis. Specifically, the petitioners
contend that this Court erred in unduly relying on the raw information given
to Col. Kasim by a personal intelligence "asset" without any other evidence to
support it. The petitioners also point out that the Court misapplied its cited
cases (Secretary of Defense v. Manalo,[7] Velasquez Rodriguez v. Honduras,
[8]
 and Timurtas v. Turkey[9]) to support its December 3, 2009 decision; in
those cases, more than one circumstance pointed to the complicity of the
government and its agents. The petitioners emphasize that in the present
case, the respondent only presented a "token piece of evidence" that points
to Col. Kasim as the source of information that Tagitis was under custodial
investigation for having been suspected as a "terrorist supporter." This,
according to the petitioners, cannot be equated to the substantial evidence
required by the Rule on the Writ of Amparo.[10]
Second, the petitioners contend that Col. Kasim's death renders impossible
compliance with the Court's directive in its December 3, 2009 decision that
Col. Kasim be impleaded in the present case and held accountable with the
obligation to disclose information known to him and to his "assets" on the
enforced disappearance of Tagitis. The petitioners alleged that Col. Kasim
was killed in an encounter with the Abu Sayaff Group on May 7, 2009. To
prove Col. Kasim's death, the petitioners attached to their motion a copy of
an article entitled "Abus kill Sulu police director" published by the Philippine
Daily Inquirer on May 8, 2009.[11] This article alleged that "Senior Supt.
Julasirim Kasim, his brother Rosalin, a police trainee, and two other police
officers were killed in a fire fight with Abu Sayyaf bandits that started at
about 1 p.m. on Thursday, May 7, 2009 at the boundaries of Barangays
Kulasi and Bulabog in Maimbung town, Sulu." The petitioners also attached
an official copy of General Order No. 1089 dated May 15, 2009 issued by the
PNP National Headquarters, indicating that "PS SUPT [Police Senior
Superintendent] Julasirim Ahadin Kasim 0-05530, PRO ARMM, is
posthumously retired from PNP service effective May 8,
2009."[12] Additionally, the petitioners point out that the intelligence "assets"
who supplied the information that Tagitis was under custodial investigation
were personal to Col. Kasim; hence, the movants can no longer comply with
this Court's order to disclose any information known to Col. Kasim and his
"assets."
The Court's Ruling
We hold that our directive to implead Col. Kasim as a party to the
present case has been rendered moot and academic by his death.
Nevertheless, we resolve to deny the petitioners' motion for
reconsideration for lack of merit.
Paragraph (e) of the dispositive portion of our December 3, 2009 decision
directs:
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and
holding him accountable with the obligation to disclose information known to
him and to his "assets" in relation with the enforced disappearance of
Engineer Morced N. Tagitis;
Undisputably, this directive can no longer be enforced, and has been
rendered moot and academic, given Col. Kasim's demise. His intervening
death, however, does not necessarily signify the loss of the information Col.
Kasim may have left behind, particularly the network of "assets" he utilized
while he was in the service. Intelligence gathering is not an activity
conducted in isolation, and involves an interwoven network of informants
existing on the basis of symbiotic relationships with the police and the
military. It is not farfetched that a resourceful investigator, utilizing the
extraordinary diligence that the Rule on the Writ of Amparo requires,[13] can
still access or reconstruct the information Col. Kasim received from his
"asset" or network of assets during his lifetime.
The extinction of Col. Kasim's personal accountability and obligation to
disclose material information, known to him and his assets, does not also
erase the burden of disclosure and investigation that rests with the PNP and
the CIDG. Lest this Court be misunderstood, we reiterate that our holding in
our December 3, 2009 Decision that the PNP -- through the incumbent PNP
Chief; and the PNP-CIDG, through its incumbent Chief -- are directly
responsible[14] for the disclosure of material facts known to the government
and to their offices regarding the disappearance of Tagitis; and that the
conduct of proper investigation using extraordinary diligence still subsists.
These are continuing obligations that will not truly be terminated until the
enforced disappearance of the victim, Engr. Morced N. Tagitis, is fully
addressed by the responsible or accountable parties, as we directed in our
Decision.
We now turn to the petitioners' substantial challenge to the merits of our
December 3, 2009 decision.
We see no merit in the petitioners' submitted position that no sufficient
evidence exists to support the conclusion that the Kasim evidence
unequivocally points to some government complicity in the disappearance.
Contrary to the petitioners' claim that our conclusions only relied on Col.
Kasim's report, our Decision plainly and pointedly considered other evidence
supporting our conclusion, particularly the consistent denials by government
authorities of any complicity in the disappearance of Tagitis; the dismissive
approach of the police authorities to the report of the disappearance; and the
conduct of haphazard investigations that did not translate into any
meaningful results. We painstakingly ruled:
To give full meaning to our Constitution and the rights it protects, we hold
that, as in Velasquez, we should at least take a close look at the available
evidence to determine the correct import of every piece of evidence - even of
those usually considered inadmissible under the general rules of evidence -
taking into account the surrounding circumstances and the test of reason that
we can use as basic minimum admissibility requirement. In the present case,
we should at least determine whether the Kasim evidence before us is
relevant and meaningful to the disappearance of Tagistis and reasonably
consistent with other evidence in the case.
xxx
The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were
never looked into and clarified by police investigation. It is the evidence, too,
that colors a simple missing person report into an enforced disappearance
case, as it injects the element of participation by agents of the State and thus
brings into question how the State reacted to the disappearance.
xxx
We glean from all these pieces of evidence and developments a
consistency in the government's denial of any complicity in the
disappearance of Tagitis, disrupted only by the report made by Col.
Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however,
eventually denied that he ever made the disclosure that Tagitis was under
custodial investigation for complicity in terrorism. Another distinctive trait
that runs through these developments is the government's dismissive
approach to the disappearance, starting from the initial response by the
Jolo police to Kunnong's initial reports of the disappearance, to the responses
made to the respondent when she herself reported and inquired about her
husband's disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best
haphazard since the authorities were looking for a man whose picture they
initially did not even secure. The returns and reports made to the CA fared no
better, as the CIDG efforts themselves were confined to searching for
custodial records of Tagitis in their various departments and divisions. To
point out the obvious, if the abduction of Tagitis was a "black" operation
because it was unrecorded or officially unauthorized, no record of custody
would ever appear in the CIDG records; Tagitis, too, would not be detained in
the usual police or CIDG detention places. In sum, none of the reports on
record contains any meaningful results or details on the depth and
extent of the investigation made. To be sure, reports of top police officials
indicating the personnel and units they directed to investigate can never
constitute exhaustive and meaningful investigation, or equal detailed
investigative reports of the activities undertaken to search for Tagitis.
Indisputably, the police authorities from the very beginning failed to come up
to the extraordinary diligence that the Amparo Rule requires. [Emphasis in
the original]
Likewise, we see no merit in the petitioners' claim that the Kasim evidence
does not amount to substantial evidence required by the Rule on the Writ
of Amparo. This is not a new issue; we extensively and thoroughly considered
and resolved it in our December 3, 2009 Decision. At this point, we need not
go into another full discussion of the justifications supporting an evidentiary
standard specific to the Writ of Amparo. Suffice it to say that we continue to
adhere to the substantial evidence rule that the Rule on the Writ
of Amparo requires, with some adjustments for flexibility in considering the
evidence presented. When we ruled that hearsay evidence (usually
considered inadmissible under the general rules of evidence) may be
admitted as the circumstances of the case may require, we did not thereby
dispense with the substantial evidence rule; we merely relaxed the
evidentiary rule on the admissibility of evidence, maintaining all the time the
standards of reason and relevance that underlie every evidentiary situation.
This, we did, by considering the totality of the obtaining situation and the
consistency of the hearsay evidence with the other available evidence in the
case.
We also cannot agree with the petitioners' contention that we
misapplied Secretary of Defense v. Manalo,[15] Velasquez Rodriguez v.
Honduras,[16] and Timurtas v. Turkey[17] to support our December 3, 2009
decision. The petitioners make this claim with the view that in these cases,
more than one circumstance pointed to the government or its agents as the
parties responsible for the disappearance, while we can only point to the
Kasim evidence. A close reading of our December 3, 2009 Decision shows
that it rests on more than one basis.
At the risk of repetition, we stress that other pieces of evidence point the way
towards our conclusion, particularly the unfounded and consistent denials by
government authorities of any complicity in the disappearance; the
dismissive approach of the police to the report of the disappearance; and the
haphazard handling of the investigation that did not produce any meaningful
results. In cruder but more understandable language, the run-around given
to the respondent and the government responses to the request for
meaningful investigation, considered in the light of the Kasim evidence,
pointed to the conclusion that the Tagitis affair carried a "foul smell"
indicative of government complicity or, at the very least, an attempt at
cover-up and concealment. This is the situation that the Writ
of Amparo specifically seeks to address.
Manalo, Velasquez Rodriguez and Timurtas,  read in proper perspective, fully
support our findings and conclusions in this case.
Manalo is different from Tagitis in terms of their factual settings, as enforced
disappearance was no longer a problem in that case. The enforced
disappearance of the brothers Raymond and Reynaldo Manalo effectively
ended when they escaped from captivity and surfaced, while Tagitis is still
nowhere to be found and remains missing more than two years after his
reported disappearance. An Amparo situation subsisted in Manalo, however,
because of the continuing threat to the brothers' right to security; the
brothers claimed that since the persons responsible for their enforced
disappearance were still at large and had not been held accountable, the
former were still under the threat of being once again abducted, kept captive
or even killed, which threat constituted a direct violation of their right to
security of person. In ruling that substantial evidence existed to support the
conclusion that the respondents' right to security had been violated, the
Court not only considered the respondents' affidavit and testimony which
positively identified the perpetrators, but also noted other evidence showing
the ineffective investigation and protection  on the part of the military.
The Court significantly found that:
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. 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. 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. [Emphasis
supplied][18]
Similarly in Velasquez Rodriguez, the Inter-American Court of Human Rights
(IACHR) acknowledged that when the Honduran Government carried out or
tolerated enforced disappearances, the police customarily used a distinctive
form of kidnapping. Consequently, the IACHR presumed that Velasquez
disappeared at the "hands of or with the acquiescence of those officials within
the framework of that practice." Moreover, the IACHR found that negative
inferences may be drawn from the fact that the government failed to
investigate or to inquire into his disappearance, and thwarted the
attempts by the victim's family to do so; these according to the
Court strongly suggested the government's involvement in the
disappearance, even if there was no direct evidence indicating that the
government kidnapped Velasquez.[19] The Court thus held:[20]
iii. In the case of Manfredo Velásquez, there were the same type of denials
by his captors and the Armed Forces, the same omissions of the latter
and of the Government in investigating and revealing his
whereabouts, and the same ineffectiveness of the courts where three writs
of HABEAS corpus and two criminal complaints were brought ( testimony of
Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez,
press clippings and documentary evidence ).
h. There is no evidence in the record that Manfredo Velásquez had
disappeared in order to join subversive groups, other than a letter from the
Mayor of Langue, which contained rumors to that effect. The letter itself
shows that the Government associated him with activities it considered a
threat to national security. However, the Government did not corroborate the
view expressed in the letter with any other evidence. Nor is there any
evidence that he was kidnapped by common criminals or other persons
unrelated to the practice of disappearances existing at that time."
148. Based upon the above, the Court finds that the following facts have
been proven in this proceeding: (1) a practice of disappearances carried out
or tolerated by Honduran officials existed between 1981 and 1984; ( 2)
Manfredo Velásquez disappeared at the hands of or with the acquiescence of
those officials within the framework of that practice; and (3) the Government
of Honduras failed to guarantee the human rights affected by that practice.
Finally, in Timurtas, the European Court of Human Rights (ECHR) altered the
prevailing jurisprudence by permitting a lesser evidentiary burden in cases
of enforced disappearances. The ECHR dismissed the need for direct
evidence previously held necessary in the leading case of Kurt v. Turkey,
[21]
 and instead permitted the use of circumstantial evidence to establish
a violation of the right to life. It stated that "whether the failure on the part
of authorities to provide a plausible explanation as to a detainee's
fate, in the absence of a body, might raise issues under Article 2 of the
Convention (right to life), will depend on the circumstances of the case
and, in particular, on the existence of sufficient circumstantial
evidence based on concrete elements, from which it may be concluded to
the requisite standard of proof that the detainee must be presumed to have
died in custody."[22] The ECHR found that:[23]
Noting that more than six and a half years has gone by since Abdulvahap
Timurtas' apprehension and having regard to all the other circumstances of
the case, the Court found that the disappearance of Abdulvahap
Timurtas after he had been taken into detention led, in the
circumstances of this case, to a presumption that he had died. No
explanation having been provided by the Government as to what had
happened to him during his detention, the Government was liable for his
death and there was a violation of Article 2 of the Convention. [Emphasis
supplied]
Significantly (in the context of the present case), the ECHR also noted that
the inadequacy of the investigation into the disappearance of Timurtas also
constituted a violation of his right to life under Article 2 of the European
Convention on Human Rights.
Thus viewed, common threads that plainly run in the three cited cases are
applicable to the present case. There is the evidence of ineffective
investigation in Manalo and Velasquez Rodriguez, while in all three was the
recognition that the burden of proof must be lowered or relaxed (either
through the use of circumstantial or indirect evidence or even by logical
inference); the requirement for direct evidence to establish that an enforced
disappearance occurred -- as the petitioners effectively suggest -- would
render it extremely difficult, if not impossible, to prove that an individual has
been made to disappear. In these lights, we emphasized in our December 3,
2009 Decision that while the need for substantial evidence remains the rule,
flexibility must be observed where appropriate (as the Courts in Velasquez
Rodriguez and Timurtas did) for the protection of the precious rights to life,
liberty and security. This flexibility, we noted, requires that "we should take a
close look at the available evidence to determine the correct import of every
piece of evidence - even of those usually considered inadmissible under the
general rules of evidence - taking into account the surrounding circumstances
and the test of reason that we can use as basic minimum admissibility
requirement." From these perspectives, we see no error that we should
rectify or reconsider.
WHEREFORE, premises considered, we resolve to GRANT the motion to
declare the inclusion of PS/Supt. Julasirim Ahadin Kasim moot and academic,
but, otherwise, DENY the petitioners' motion for reconsideration. Let this
case be remanded to the Court of Appeals for further proceedings as directed
in our Decision of December 3, 2009.
SO ORDERED.
G.R. No. 183871               February 18, 2010
LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO
CARBONEL, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN.
AVELINO RAZON, MAJ. DARWIN SY a.k.a. DARWIN REYES, JIMMY SANTANA,
RUBEN ALFARO, CAPT. ANGELO CUARESMA, a certain JONATHAN, P/SUPT.
EDGAR B. ROQUERO, ARSENIO C. GOMEZ, and OFFICE OF THE
OMBUDSMAN, Respondents.
DECISION
VELASCO, JR., J.:
In this petition for review under Rule 45 of the Rules of Court in relation to Section 191 of
the Rule on the Writ of Amparo2 (Amparo Rule), Lourdes D. Rubrico, Jean Rubrico
Apruebo, and Mary Joy Rubrico Carbonel assail and seek to set aside the Decision3 of
the Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No. 00003, a petition
commenced under the Amparo Rule.
The petition for the writ of amparo dated October 25, 2007 was originally filed before this
Court. After issuing the desired writ and directing the respondents to file a verified written
return, the Court referred the petition to the CA for summary hearing and appropriate
action. The petition and its attachments contained, in substance, the following
allegations:
1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and
Security Squadron (AISS, for short) based in Fernando Air Base in Lipa City
abducted Lourdes D. Rubrico (Lourdes), then attending a Lenten pabasa in
Bagong Bayan, Dasmariñas, Cavite, and brought to, and detained at, the air
base without charges. Following a week of relentless interrogation - conducted
alternately by hooded individuals - and what amounts to verbal abuse and mental
harassment, Lourdes, chair of the Ugnayan ng Maralita para sa Gawa Adhikan,
was released at Dasmariñas, Cavite, her hometown, but only after being made to
sign a statement that she would be a military asset.
After Lourdes’ release, the harassment, coming in the form of being tailed on at
least two occasions at different places, i.e., Dasmariñas, Cavite and Baclaran in
Pasay City, by motorcycle-riding men in bonnets, continued;
2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez (P/Insp.
Gomez), then sub-station commander of Bagong Bayan, Dasmariñas, Cavite,
kept sending text messages to Lourdes’ daughter, Mary Joy R. Carbonel (Mary
Joy), bringing her to beaches and asking her questions about Karapatan, an
alliance of human rights organizations. He, however, failed to make an
investigation even after Lourdes’ disappearance had been made known to him;
3. A week after Lourdes’ release, another daughter, Jean R. Apruebo (Jean),
was constrained to leave their house because of the presence of men watching
them;
4. Lourdes has filed with the Office of the Ombudsman a criminal complaint for
kidnapping and arbitrary detention and administrative complaint for gross abuse
of authority and grave misconduct against Capt. Angelo Cuaresma (Cuaresma),
Ruben Alfaro (Alfaro), Jimmy Santana (Santana) and a certain Jonathan, c/o
Headquarters 301st AISS, Fernando Air Base and Maj. Sy/Reyes with address at
No. 09 Amsterdam Ext., Merville Subd., Parañaque City, but nothing has
happened; and the threats and harassment incidents have been reported to the
 Dasmariñas municipal and Cavite provincial police stations, but nothing eventful
resulted from their respective investigations.
Two of the four witnesses to Lourdes’ abduction went into hiding after being
visited by government agents in civilian clothes; and
5. Karapatan conducted an investigation on the incidents. The investigation
would indicate that men belonging to the Armed Forces of the Philippines (AFP),
namely Capt. Cuaresma of the Philippine Air Force (PAF), Alfaro, Santana,
Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes; that unknown
to the abductors, Lourdes was able to pilfer a "mission order" which was
addressed to CA Ruben Alfaro and signed by Capt. Cuaresma of the PAF.
The petition prayed that a writ of amparo issue, ordering the individual respondents to
desist from performing any threatening act against the security of the petitioners and for
the Office of the Ombudsman (OMB) to immediately file an information for kidnapping
qualified with the aggravating circumstance of gender of the offended party. It also
prayed for damages and for respondents to produce documents submitted to any of
them on the case of Lourdes.
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen. Hermogenes
Esperon, then Armed Forces of the Philippines (AFP) Chief of Staff, Police Director-
General (P/Dir. Gen.) Avelino Razon, then Philippine National Police (PNP) Chief, Police
Superintendent (P/Supt.) Roquero of the Cavite Police Provincial Office, Police Inspector
(P/Insp.) Gomez, now retired, and the OMB (answering respondents, collectively) filed,
through the Office of the Solicitor General (OSG), a joint return on the writ specifically
denying the material inculpatory averments against them. The OSG also denied the
allegations against the following impleaded persons, namely: Cuaresma, Alfaro,
Santana, Jonathan, and Sy/Reyes, for lack of knowledge or information sufficient to form
a belief as to the allegations’ truth. And by way of general affirmative defenses,
answering respondents interposed the following defenses: (1) the President may not be
sued during her incumbency; and (2) the petition is incomplete, as it fails to indicate the
matters required by Sec. 5(d) and (e) of the Amparo Rule.4
Attached to the return were the affidavits of the following, among other public officials,
containing their respective affirmative defenses and/or statements of what they had
undertaken or committed to undertake regarding the claimed disappearance of Lourdes
and the harassments made to bear on her and her daughters:
1. Gen. Esperon – attested that, pursuant to a directive of then Secretary of
National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the Commanding
General of the PAF, with information to all concerned units, to conduct an
investigation to establish the circumstances behind the disappearance and the
reappearance of Lourdes insofar as the involvement of alleged personnel/unit is
concerned. The Provost Marshall General and the Office of the Judge Advocate
General (JAGO), AFP, also undertook a parallel action.
Gen. Esperon manifested his resolve to provide the CA with material results of
the investigation; to continue with the probe on the alleged abduction of Lourdes
and to bring those responsible, including military personnel, to the bar of justice
when warranted by the findings and the competent evidence that may be
gathered in the investigation process by those mandated to look into the matter;5
2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered upon
receiving a copy of the petition is on-going vis-à-vis Lourdes’ abduction, and that
a background verification with the PNP Personnel Accounting and Information
System disclosed that the names Santana, Alfaro, Cuaresma and one Jonathan
do not appear in the police personnel records, although the PNP files carry the
name of Darwin Reyes Y. Muga.
Per the initial investigation report of the Dasmariñas municipal police station,
P/Dir. Gen. Razon disclosed, Lourdes was abducted by six armed men in the
afternoon of April 3, 2007 and dragged aboard a Toyota Revo with plate number
XRR 428, which plate was issued for a Mitsubishi van to AK Cottage Industry
with address at 9 Amsterdam St., Merville Subd., Parañaque City. The person
residing in the apartment on that given address is one Darius/Erwin See @
 Darius Reyes allegedly working, per the latter’s house helper, in Camp
Aguinaldo.
P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never
contacted nor coordinated with the local police or other investigating units of the
PNP after her release, although she is in the best position to establish the identity
of her abductors and/or provide positive description through composite sketching.
Nonetheless, he manifested that the PNP is ready to assist and protect the
petitioners and the key witnesses from threats, harassments and intimidation
from whatever source and, at the same time, to assist the Court in the
implementation of its orders.61avvphi1
3. P/Supt. Roquero – stated conducting, upon receipt of Lourdes’ complaint, an
investigation and submitting the corresponding report to the PNP Calabarzon,
observing that neither Lourdes nor her relatives provided the police with relevant
information;
4. P/Insp. Gomez – alleged that Lourdes, her kin and witnesses refused to
cooperate with the investigating Cavite PNP; and
5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for
violation of Articles 267 and 124, or kidnapping and arbitrary detention,
respectively, have been filed with, and are under preliminary investigation by the
OMB against those believed to be involved in Lourdes’ kidnapping; that upon
receipt of the petition for a writ of amparo, proper coordination was made with the
Office of the Deputy Ombudsman for the Military and other Law Enforcement
Offices (MOLEO) where the subject criminal and administrative complaints were
filed.
Commenting on the return, petitioners pointed out that the return was no more than a
general denial of averments in the petition. They, thus, pleaded to be allowed to present
evidence ex parte against the President, Santana, Alfaro, Capt. Cuaresma, Darwin Sy,
and Jonathan. And with leave of court, they also asked to serve notice of the petition
through publication, owing to their failure to secure the current address of the latter five
and thus submit, as the CA required, proof of service of the petition on them.
The hearing started on November 13, 2007.7 In that setting, petitioners’ counsel prayed
for the issuance of a temporary protection order (TPO) against the answering
respondents on the basis of the allegations in the petition. At the hearing of November
20, 2007, the CA granted petitioners’ motion that the petition and writ be served by the
court’s process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and
Jonathan.
The legal skirmishes that followed over the propriety of excluding President Arroyo from
the petition, petitioners’ motions for service by publication, and the issuance of a TPO
are not of decisive pertinence in this recital. The bottom line is that, by separate
resolutions, the CA dropped the President as respondent in the case; denied the motion
for a TPO for the court’s want of authority to issue it in the tenor sought by petitioners;
and effectively denied the motion for notice by publication owing to petitioners’ failure to
submit the affidavit required under Sec. 17, Rule 14 of the Rules of Court.8
After due proceedings, the CA rendered, on July 31, 2008, its partial judgment, subject of
this review, disposing of the petition but only insofar as the answering respondents were
concerned. The fallo of the CA decision reads as follows:
WHEREFORE, premises considered, partial judgment is hereby
rendered DISMISSING the instant petition with respect to respondent Gen. Hermogenes
Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/Sr. Insp. Arsenio C.
Gomez (ret.) and the Office of the Ombudsman.
Nevertheless, in order that petitioners’ complaint will not end up as another unsolved
case, the heads of the Armed Forces of the Philippines and the Philippine National
Police are directed to ensure that the investigations already commenced are diligently
pursued to bring the perpetrators to justice. The Chief of Staff of the Armed Forces of the
Philippines and P/Dir. Gen. Avelino Razon are directed to regularly update petitioners
and this Court on the status of their investigation.
SO ORDERED.
In this recourse, petitioners formulate the issue for resolution in the following wise:
WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and
dropping President Gloria Macapagal Arroyo as party respondent.
Petitioners first take issue on the President’s purported lack of immunity from suit during
her term of office. The 1987 Constitution, so they claim, has removed such immunity
heretofore enjoyed by the chief executive under the 1935 and 1973 Constitutions.
Petitioners are mistaken. The presidential immunity from suit remains preserved under
our system of government, albeit not expressly reserved in the present constitution.
Addressing a concern of his co-members in the 1986 Constitutional Commission on the
absence of an express provision on the matter, Fr. Joaquin Bernas, S.J. observed that it
was already understood in jurisprudence that the President may not be sued during his
or her tenure.9 The Court subsequently made it abundantly clear in David v. Macapagal-
Arroyo, a case likewise resolved under the umbrella of the 1987 Constitution, that indeed
the President enjoys immunity during her incumbency, and why this must be so:
Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the high office of the
President, the Head of State, if he can be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government.10 x x x
And lest it be overlooked, the petition is simply bereft of any allegation as to what specific
presidential act or omission violated or threatened to violate petitioners’ protected rights.
This brings us to the correctness of the assailed dismissal of the petition with respect to
Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and the OMB.
None of the four individual respondents immediately referred to above has been
implicated as being connected to, let alone as being behind, the alleged abduction and
harassment of petitioner Lourdes. Their names were not even mentioned in
Lourdes’ Sinumpaang Salaysay11 of April 2007. The same goes for the
respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang Salaysay of
Jean12 and Mary Joy.13
As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the case
on the theory that they, as commanders, were responsible for the unlawful acts allegedly
committed by their subordinates against petitioners. To the appellate court, "the privilege
of the writ of amparo must be denied as against Gen. Esperon and P/Dir. Gen. Razon for
the simple reason that petitioners have not presented evidence showing that those who
allegedly abducted and illegally detained Lourdes and later threatened her and her family
were, in fact, members of the military or the police force." The two generals, the CA’s
holding broadly hinted, would have been accountable for the abduction and threats if the
actual malefactors were members of the AFP or PNP.
As regards the three other answering respondents, they were impleaded because they
allegedly had not exerted the required extraordinary diligence in investigating and
satisfactorily resolving Lourdes’ disappearance or bringing to justice the actual
perpetrators of what amounted to a criminal act, albeit there were allegations against
P/Insp. Gomez of acts constituting threats against Mary Joy.
While in a qualified sense tenable, the dismissal by the CA of the case as against Gen.
Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of the stated
rationale underpinning the assailed decision vis-à-vis the two generals, i.e., command
responsibility. The Court assumes the latter stance owing to the fact that command
responsibility, as a concept defined, developed, and applied under international law, has
little, if at all, bearing in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the development
of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in
its simplest terms, means the "responsibility of commanders for crimes committed by
subordinate members of the armed forces or other persons subject to their control in
international wars or domestic conflict."14 In this sense, command responsibility is
properly a form of criminal complicity. The Hague Conventions of 1907 adopted the
doctrine of command responsibility,15 foreshadowing the present-day precept of holding a
superior accountable for the atrocities committed by his subordinates should he be
remiss in his duty of control over them. As then formulated, command responsibility is
"an omission mode of individual criminal liability," whereby the superior is made
responsible for crimes committed by his subordinates for failing to prevent or punish the
perpetrators16 (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute17 of the International
Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute imposes
individual responsibility on military commanders for crimes committed by forces under
their control. The country is, however, not yet formally bound by the terms and provisions
embodied in this treaty-statute, since the Senate has yet to extend concurrence in its
ratification.18
While there are several pending bills on command responsibility,19 there is still no
Philippine law that provides for criminal liability under that doctrine.20
It may plausibly be contended that command responsibility, as legal basis to hold
military/police commanders liable for extra-legal killings, enforced disappearances, or
threats, may be made applicable to this jurisdiction on the theory that the command
responsibility doctrine now constitutes a principle of international law or customary
international law in accordance with the incorporation clause of the Constitution.21 Still, it
would be inappropriate to apply to these proceedings the doctrine of command
responsibility, as the CA seemed to have done, as a form of criminal complicity through
omission, for individual respondents’ criminal liability, if there be any, is beyond the reach
of amparo. In other words, the Court does not rule in such proceedings on any issue of
criminal culpability, even if incidentally a crime or an infraction of an administrative rule
may have been committed. As the Court stressed in Secretary of National Defense v.
Manalo (Manalo),22 the writ of amparo was conceived to provide expeditious and effective
procedural relief against violations or threats of violation of the basic rights to life, liberty,
and security of persons; the corresponding amparo suit, however, "is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative
liability requiring substantial evidence that will require full and exhaustive
proceedings."23 Of the same tenor, and by way of expounding on the nature and role of
amparo, is what the Court said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats
thereof or extra-judicial killings]; it determines responsibility, or at least accountability, for
the enforced disappearance [threats thereof or extra-judicial killings] for purposes of
imposing the appropriate remedies to address the disappearance [or extra-judicial
killings].
xxxx
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws. The simple reason is that the
Legislature has not spoken on the matter; the determination of what acts are criminal x x
x are matters of substantive law that only the Legislature has the power to enact.24 x x x
If command responsibility were to be invoked and applied to these proceedings, it
should, at most, be only to determine the author who, at the first instance, is accountable
for, and has the duty to address, the disappearance and harassments complained of, so
as to enable the Court to devise remedial measures that may be appropriate under the
premises to protect rights covered by the writ of amparo. As intimated earlier, however,
the determination should not be pursued to fix criminal liability on respondents
preparatory to criminal prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there be any.
Petitioners, as the CA has declared, have not adduced substantial evidence pointing to
government involvement in the disappearance of Lourdes. To a concrete point,
petitioners have not shown that the actual perpetrators of the abduction and the
harassments that followed formally or informally formed part of either the military or the
police chain of command. A preliminary police investigation report, however, would tend
to show a link, however hazy, between the license plate (XRR 428) of the vehicle
allegedly used in the abduction of Lourdes and the address of Darwin Reyes/Sy, who
was alleged to be working in Camp Aguinaldo.25 Then, too, there were affidavits and
testimonies on events that transpired which, if taken together, logically point to military
involvement in the alleged disappearance of Lourdes, such as, but not limited to, her
abduction in broad daylight, her being forcibly dragged to a vehicle blindfolded and then
being brought to a place where the sounds of planes taking off and landing could be
heard. Mention may also be made of the fact that Lourdes was asked about her
membership in the Communist Party and of being released when she agreed to become
an "asset."
Still and all, the identities and links to the AFP or the PNP of the alleged abductors,
namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to be
established.
Based on the separate sworn statements of Maj. Paul Ciano26 and Technical Sergeant
John N. Romano,27 officer-in-charge and a staff of the 301st AISS, respectively, none of
the alleged abductors of Lourdes belonged to the 301st AISS based in San Fernando Air
Base. Neither were they members of any unit of the Philippine Air Force, per the
certification28 of Col. Raul Dimatactac, Air Force Adjutant. And as stated in the
challenged CA decision, a verification with the Personnel Accounting and Information
System of the PNP yielded the information that, except for a certain Darwin Reyes y
Muga, the other alleged abductors, i.e., Cuaresma, Alfaro, Santana and Jonathan, were
not members of the PNP. Petitioners, when given the opportunity to identify Police
Officer 1 Darwin Reyes y Muga, made no effort to confirm if he was the same Maj.
Darwin Reyes a.k.a. Darwin Sy they were implicating in Lourdes’ abduction.
Petitioners, to be sure, have not successfully controverted answering respondents’
documentary evidence, adduced to debunk the former’s allegations directly linking
Lourdes’ abductors and tormentors to the military or the police establishment. We note,
in fact, that Lourdes, when queried on cross-examination, expressed the belief that
Sy/Reyes was an NBI agent.29 The Court is, of course, aware of what was referred to in
Razon30 as the "evidentiary difficulties" presented by the nature of, and encountered by
petitioners in, enforced disappearance cases. But it is precisely for this reason that the
Court should take care too that no wrong message is sent, lest one conclude that any
kind or degree of evidence, even the outlandish, would suffice to secure amparo
remedies and protection.
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the
minimum evidentiary substantiation requirement and norm to support a cause of action
under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.—The parties shall
establish their claims by substantial evidence.
xxxx
Sec. 18. Judgment.—x x x If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall be denied. (Emphasis added.)
Substantial evidence is more than a mere imputation of wrongdoing or violation that
would warrant a finding of liability against the person charged;31 it is more than a scintilla
of evidence. It means such amount of relevant evidence which a reasonable mind might
accept as adequate to support a conclusion, even if other equally reasonable minds
might opine otherwise.32 Per the CA’s evaluation of their evidence, consisting of the
testimonies and affidavits of the three Rubrico women and five other individuals,
petitioners have not satisfactorily hurdled the evidentiary bar required of and assigned to
them under the Amparo Rule. In a very real sense, the burden of evidence never even
shifted to answering respondents. The Court finds no compelling reason to disturb the
appellate court’s determination of the answering respondents’ role in the alleged
enforced disappearance of petitioner Lourdes and the threats to her family’s security.
Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon and
P/Dir. Gen. Razon, per their separate affidavits, lost no time, upon their receipt of the
order to make a return on the writ, in issuing directives to the concerned units in their
respective commands for a thorough probe of the case and in providing the investigators
the necessary support. As of this date, however, the investigations have yet to be
concluded with some definite findings and recommendation.
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that
they have no direct or indirect hand in the alleged enforced disappearance of 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,33 the right to security, as a guarantee of protection by
the government, is breached by the superficial and one-sided––hence, ineffective––
investigation by the military or the police of reported cases under their jurisdiction. As
found by the CA, the local police stations concerned, including P/Supt. Roquero and
P/Insp. Gomez, did conduct a preliminary fact-finding on petitioners’ complaint. They
could not, however, make any headway, owing to what was perceived to be the refusal
of Lourdes, her family, and her witnesses to cooperate. Petitioners’ counsel, Atty. Rex
J.M.A. Fernandez, provided a plausible explanation for his clients and their witnesses’
attitude, "[They] do not trust the government agencies to protect them."34 The difficulty
arising from a situation where the party whose complicity in extra-judicial killing or
enforced disappearance, as the case may be, is alleged to be the same party who
investigates it is understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought
not to pose a hindrance to the police in pursuing, on its own initiative, the investigation in
question to its natural end. To repeat what the Court said in Manalo, the right to security
of persons is a guarantee of the protection of one’s right by the government. And this
protection includes conducting effective investigations of extra-legal killings, enforced
disappearances, or threats of the same kind. The nature and importance of an
investigation are captured in the Velasquez Rodriguez case,35 in which the Inter-
American Court of Human Rights pronounced:
[The duty to investigate] must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and be
assumed by the State as its own legal duty, not a step taken by private interests that
depends upon the initiative of the victim or his family or upon offer of proof, without
an effective search for the truth by the government. (Emphasis added.)
This brings us to Mary Joy’s charge of having been harassed by respondent P/Insp.
Gomez. With the view we take of this incident, there is nothing concrete to support the
charge, save for Mary Joy’s bare allegations of harassment. We cite with approval the
following self-explanatory excerpt from the appealed CA decision:
In fact, during her cross-examination, when asked what specific act or threat P/Sr.
Gomez (ret) committed against her or her mother and sister, Mary Joy replied "None
…"36
Similarly, there appears to be no basis for petitioners’ allegations about the OMB failing
to act on their complaint against those who allegedly abducted and illegally detained
Lourdes. Contrary to petitioners’ contention, the OMB has taken the necessary
appropriate action on said complaint. As culled from the affidavit37 of the Deputy Overall
Ombudsman and the joint affidavits38 of the designated investigators, all dated November
7, 2007, the OMB had, on the basis of said complaint, commenced criminal39 and
administrative40 proceedings, docketed as OMB-P-C-07-0602-E and OMB-P-A 07-567-E,
respectively, against Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite
orders for the submission of counter-affidavits and verified position papers had been sent
out.
The privilege of the writ of amparo, to reiterate, is a remedy available to victims of extra-
judicial killings and enforced disappearances or threats of similar nature, regardless of
whether the perpetrator of the unlawful act or omission is a public official or employee or
a private individual.
At this juncture, it bears to state that petitioners have not provided the CA with the
correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes.
The mailed envelopes containing the petition for a writ of amparo individually addressed
to each of them have all been returned unopened. And petitioners’ motion interposed
before the appellate court for notice or service via publication has not been accompanied
by supporting affidavits as required by the Rules of Court. Accordingly, the appealed CA
partial judgment––disposing of the underlying petition for a writ of amparo without (1)
pronouncement as to the accountability, or lack of it, of the four non-answering
respondents or (2) outright dismissal of the same petition as to them––hews to the
prescription of Sec. 20 of the Amparo Rule on archiving and reviving
cases.41 Parenthetically, petitioners have also not furnished this Court with sufficient data
as to where the afore-named respondents may be served a copy of their petition for
review.
Apart from the foregoing considerations, the petition did not allege ultimate facts as
would link the OMB in any manner to the violation or threat of violation of the petitioners’
rights to life, liberty, or personal security.
The privilege of the writ of amparo is envisioned basically to protect and guarantee the
rights to life, liberty, and security of persons, free from fears and threats that vitiate the
quality of this life.42 It is an extraordinary writ conceptualized and adopted in light of and
in response to the prevalence of extra-legal killings and enforced
disappearances.43 Accordingly, the remedy ought to be resorted to and granted
judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the
indiscriminate filing of amparo petitions for purposes less than the desire to secure
amparo reliefs and protection and/or on the basis of unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main prayer, that the
Court order the impleaded respondents "to immediately desist from doing any acts that
would threaten or seem to threaten the security of the Petitioners and to desist from
approaching Petitioners, x x x their residences and offices where they are working under
pain of contempt of [this] Court." Petitioners, however, failed to adduce the threshold
substantive evidence to establish the predicate facts to support their cause of action, i.e.,
the adverted harassments and threats to their life, liberty, or security, against responding
respondents, as responsible for the disappearance and harassments complained of. This
is not to say, however, that petitioners’ allegation on the fact of the abduction incident or
harassment is necessarily contrived. The reality on the ground, however, is that the
military or police connection has not been adequately proved either by identifying the
malefactors as components of the AFP or PNP; or in case identification is not possible,
by showing that they acted with the direct or indirect acquiescence of the government.
For this reason, the Court is unable to ascribe the authorship of and responsibility for the
alleged enforced disappearance of Lourdes and the harassment and threats on her
daughters to individual respondents. To this extent, the dismissal of the case against
them is correct and must, accordingly, be sustained.
Prescinding from the above considerations, the Court distinctly notes that the appealed
decision veritably extended the privilege of the writ of amparo to petitioners when it
granted what to us are amparo reliefs. Consider: the appellate court decreed, and rightly
so, that the police and the military take specific measures for the protection of petitioners’
right or threatened right to liberty or security. The protection came in the form of
directives specifically to Gen. Esperon and P/Dir. Gen. Razon, requiring each of them (1)
to ensure that the investigations already commenced by the AFP and PNP units,
respectively, under them on the complaints of Lourdes and her daughters are being
pursued with urgency to bring to justice the perpetrators of the acts complained of; and
(2) to submit to the CA, copy furnished the petitioners, a regular report on the progress
and status of the investigations. The directives obviously go to Gen. Esperon in his
capacity as head of the AFP and, in a sense, chief guarantor of order and security in the
country. On the other hand, P/Dir. Gen. Razon is called upon to perform a duty
pertaining to the PNP, a crime-preventing, investigatory, and arresting institution.
As the CA, however, formulated its directives, no definitive time frame was set in its
decision for the completion of the investigation and the reportorial requirements. It also
failed to consider Gen. Esperon and P/Dir. Gen. Razon’s imminent compulsory
retirement from the military and police services, respectively. Accordingly, the CA
directives, as hereinafter redefined and amplified to fully enforce the amparo remedies,
are hereby given to, and shall be directly enforceable against, whoever sits as the
commanding general of the AFP and the PNP.
At this stage, two postulates and their implications need highlighting for a proper
disposition of this case.
First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted
in the same acts and incidents leading to the filing of the subject amparo petition has
been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps
to determine the existence of a prima facie case against the five (5) impleaded
individuals suspected to be actually involved in the detention of Lourdes have been set in
motion. It must be pointed out, though, that the filing44 of the OMB complaint came before
the effectivity of the Amparo Rule on October 24, 2007.
Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo petition should a
criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23,46 on
the other hand, provides that when the criminal suit is filed subsequent to a petition for
amparo, the petition shall be consolidated with the criminal action where the Amparo
Rule shall nonetheless govern the disposition of the relief under the Rule. Under the
terms of said Sec. 22, the present petition ought to have been dismissed at the outset.
But as things stand, the outright dismissal of the petition by force of that section is no
longer technically feasible in light of the interplay of the following factual mix: (1) the
Court has, pursuant to Sec. 647 of the Rule, already issued ex parte the writ of amparo;
(2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of
Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as respondents only
those believed to be the actual abductors of Lourdes, while the instant petition
impleaded, in addition, those tasked to investigate the kidnapping and detention
incidents and their superiors at the top. Yet, the acts and/or omissions subject of the
criminal complaint and the amparo petition are so linked as to call for the consolidation of
both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature of the writ of amparo
as an inexpensive and effective tool to protect certain rights violated or threatened to be
violated, the Court hereby adjusts to a degree the literal application of Secs. 22 and 23 of
the Amparo Rule to fittingly address the situation obtaining under the
premises. 48 Towards this end, two things are at once indicated: (1) the consolidation of
the probe and fact-finding aspects of the instant petition with the investigation of the
criminal complaint before the OMB; and (2) the incorporation in the same criminal
complaint of the allegations in this petition bearing on the threats to the right to security.
Withal, the OMB should be furnished copies of the investigation reports to aid that body
in its own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the
OMB shall be given easy access to all pertinent documents and evidence, if any,
adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E,
should be allowed, if so minded, to amend her basic criminal complaint if the
consolidation of cases is to be fully effective.
WHEREFORE, the Court PARTIALLY GRANTS this petition for review and makes a
decision:
(1) Affirming the dropping of President Gloria Macapagal-Arroyo from the petition
for a writ of amparo;
(2) Affirming the dismissal of the amparo case as against Gen. Hermogenes
Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the
command responsibility principle, to attach accountability and responsibility to
them, as then AFP Chief of Staff and then PNP Chief, for the alleged enforced
disappearance of Lourdes and the ensuing harassments allegedly committed
against petitioners. The dismissal of the petition with respect to the OMB is also
affirmed for failure of the petition to allege ultimate facts as to make out a case
against that body for the enforced disappearance of Lourdes and the threats and
harassment that followed; and
 (3) Directing the incumbent Chief of Staff, AFP, or his successor, and the
incumbent Director-General of the PNP, or his successor, to ensure that the
investigations already commenced by their respective units on the alleged
abduction of Lourdes Rubrico and the alleged harassments and threats she and
her daughters were made to endure are pursued with extraordinary diligence as
required by Sec. 1749 of the Amparo Rule. They shall order their subordinate
officials, in particular, to do the following:
(a) Determine based on records, past and present, the identities and
locations of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy
Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one Jonathan; and
submit certifications of this determination to the OMB with copy furnished
to petitioners, the CA, and this Court;
(b) Pursue with extraordinary diligence the evidentiary leads relating to
Maj. Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428;
and
(c) Prepare, with the assistance of petitioners and/or witnesses,
cartographic sketches of respondents Maj. Sy/Reyes, Jimmy Santana,
Ruben Alfaro, Capt. Angelo Cuaresma, and a certain Jonathan to aid in
positively identifying and locating them.
The investigations shall be completed not later than six (6) months from receipt of this
Decision; and within thirty (30) days after completion of the investigations, the Chief of
Staff of the AFP and the Director-General of the PNP shall submit a full report of the
results of the investigations to the Court, the CA, the OMB, and petitioners.
This case is accordingly referred back to the CA for the purpose of monitoring the
investigations and the actions of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the partial judgment dated
July 31, 2008 of the CA.
SO ORDERED.
G.R. Nos. 184461-62               May 31, 2011
LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO AND LT. FRANCIS
MIRABELLE SAMSON, Petitioners,
vs.
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 184495
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Petitioners,
vs.
GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN.
ROMEO TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC,
LT. COL. FELIPE ANOTADO, ET AL., Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 187109
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.GEN.
AVELINO RAZON, (RET.) GEN. ROMEO TOLENTINO, (RET.) GEN. JOVITO
PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO, DONALD
CAIGAS, A.K.A. ALAN OR ALVIN, ARNEL ENRIQUEZ AND LT. FRANCIS
MIRABELLE SAMSON, Respondents.
DECISION
CARPIO MORALES, J.:
At 2:00 a.m. of June 26, 2006, armed men abducted Sherlyn Cadapan (Sherlyn), Karen
Empeño (Karen) and Manuel Merino (Merino) from a house in San Miguel, Hagonoy,
Bulacan. The three were herded onto a jeep bearing license plate RTF 597 that sped
towards an undisclosed location.
Having thereafter heard nothing from Sherlyn, Karen and Merino, their respective
families scoured nearby police precincts and military camps in the hope of finding them
but the same yielded nothing.
On July 17, 2006, spouses Asher and Erlinda Cadapan and Concepcion Empeño filed a
petition for habeas corpus1 before the Court, docketed as G.R. No. 173228, impleading
then Generals Romeo Tolentino and Jovito Palparan (Gen. Palparan), Lt. Col. Rogelio
Boac (Lt. Col. Boac), Arnel Enriquez and Lt. Francis Mirabelle Samson (Lt. Mirabelle) as
respondents. By Resolution of July 19, 2006,2 the Court issued a writ of habeas corpus,
returnable to the Presiding Justice of the Court of Appeals.
The habeas corpus petition was docketed at the appellate court as CA-G.R. SP No.
95303.
By Return of the Writ dated July 21, 2006,3 the respondents in the habeas corpus petition
denied that Sherlyn, Karen and Merino are in the custody of the military. To the Return
were attached affidavits from the respondents, except Enriquez, who all attested that
they do not know Sherlyn, Karen and Merino; that they had inquired from their
subordinates about the reported abduction and disappearance of the three but their
inquiry yielded nothing; and that the military does not own nor possess a stainless steel
jeep with plate number RTF 597. Also appended to the Return was a certification from
the Land Transportation Office (LTO) that plate number RTF 597 had not yet been
manufactured as of July 26, 2006.
Trial thereupon ensued at the appellate court.
Witness Wilfredo Ramos, owner of the house where the three were abducted, recounted
that on June 26, 2006, while he was inside his house in Hagonoy, he witnessed armed
men wearing bonnets abduct Sherlyn and Karen from his house and also abduct Merino
on their way out; and that tied and blindfolded, the three were boarded on a jeep and
taken towards Iba in Hagonoy.4
Witness Alberto Ramirez (Ramirez) recalled that on June 28, 2006, while he was
sleeping in his house, he was awakened by Merino who, in the company of a group of
unidentified armed men, repaired to his house; that onboard a stainless jeep bearing
plate number RTF 597, he (Ramirez) was taken to a place in Mercado, Hagonoy and
was asked by one Enriquez if he knew "Sierra," "Tanya," "Vincent" and "Lisa"; and that
Enriquez described the appearance of two ladies which matched those of Sherlyn and
Karen, whom he was familiar with as the two had previously slept in his house.5
Another witness, Oscar Leuterio, who was himself previously abducted by armed men
and detained for five months, testified that when he was detained in Fort Magsaysay in
Nueva Ecija, he saw two women fitting the descriptions of Sherlyn and Karen, and also
saw Merino, his kumpare.6
Lt. Col. Boac, the then commander of Task Force Malolos, a special operations team
tasked to neutralize the intelligence network of communists and other armed groups,
declared that he conducted an inquiry on the abduction of Sherlyn, Karen and Merino but
his subordinates denied knowledge thereof.7
While he denied having received any order from Gen. Palparan to investigate the
disappearance of Sherlyn, Karen and Merino, his assistance in locating the missing
persons was sought by the mayor of Hagonoy.
Major Dominador Dingle, the then division adjutant of the Philippine Army’s 7th Infantry
Division in Fort Magsaysay, denied that a certain Arnel Enriquez is a member of his
infantry as in fact his name did not appear in the roster of troops.8
Roberto Se, a supervisor of the Equipment, Plate Number and Supply Units of the LTO,
denied that his office manufactured and issued a plate number bearing number RTF
597.9
On rebuttal, Lt. Mirabelle, Lt. Col. Boac and Gen. Palparan took the witness stand as
hostile witnesses.
Lt. Mirabelle testified that she did not receive any report on the abduction of Sherlyn,
Karen and Merino nor any order to investigate the matter. And she denied knowing
anything about the abduction of Ramirez nor who were Ka Tanya or Ka Lisa.10
Gen. Palparan testified that during a debate in a televised program, he mentioned the
names of Ka Lisa and Ka Tanya as the ones involved in revolutionary tax activities; and
that he ordered Lt. Col. Boac to conduct an investigation on the disappearance of
Sherlyn, Karen and Merino.11 When pressed to elaborate, he stated: "I said that I got the
report that it stated that it was Ka Tanya and Ka Lisa that, I mean, that incident
happened in Hagonoy, Bulacan was the abduction of Ka Lisa and Ka Tanya, Your
Honor, and another one. That was the report coming from the people in the area."12
By Decision of March 29, 2007,13 the Court of Appeals dismissed the habeas corpus
petition in this wise:
As Sherlyn Cadapan, Karen Empeño and Manuel Merino are indeed missing, the
present petition for habeas corpus is not the appropriate remedy since the main office or
function of the habeas corpus is to inquire into the legality of one’s detention which
presupposes that respondents have actual custody of the persons subject of the
petition. The reason therefor is that the courts have limited powers, means and
resources to conduct an investigation. x x x.
It being the situation, the proper remedy is not a habeas corpus proceeding but criminal
proceedings by initiating criminal suit for abduction or kidnapping as a crime punishable
by law. In the case of Martinez v. Mendoza, supra, the Supreme Court restated the
doctrine that habeas corpus may not be used as a means of obtaining evidence on the
whereabouts of a person, or as a means of finding out who has specifically abducted or
caused the disappearance of a certain person. (emphasis and underscoring supplied)
Thus the appellate court disposed:
WHEREFORE, the petition for habeas corpus is hereby DISMISSED, there being no
strong evidence that the missing persons are in the custody of the respondents.
The Court, however, further resolves to refer the case to the Commission on Human
Rights, the National Bureau of Investigation and the Philippine National Police for
separate investigations and appropriate actions as may be warranted by their findings
and to furnish the Court with their separate reports on the outcome of their investigations
and the actions taken thereon.
Let copies of this decision be furnished the Commission on Human Rights, the National
Bureau of Investigation and the Philippine National Police for their appropriate actions.
SO ORDERED. (emphasis and underscoring supplied)
Petitioners in CA-G.R. SP No. 95303 moved for a reconsideration of the appellate court’s
decision. They also moved to present newly discovered evidence consisting of the
testimonies of Adoracion Paulino, Sherlyn’s mother-in-law who was allegedly threatened
by soldiers; and Raymond Manalo who allegedly met Sherlyn, Karen and Merino in the
course of his detention at a military camp.
During the pendency of the motion for reconsideration in CA-G.R. SP No. 95303, Erlinda
Cadapan and Concepcion Empeño filed before this Court a Petition for Writ of
Amparo14 With Prayers for Inspection of Place and Production of Documents dated
October 24, 2007, docketed as G.R. No. 179994. The petition impleaded the same
respondents in the habeas corpus petition, with the addition of then President Gloria
Macapagal-Arroyo, then Armed Forces of the Phil. (AFP) Chief of Staff Hermogenes
Esperon Jr., then Phil. National Police (PNP) Chief Gen. Avelino Razon (Gen. Razon),
Lt. Col. Felipe Anotado (Lt. Col. Anotado) and Donald Caigas.
Then President Arroyo was eventually dropped as respondent in light of her immunity
from suit while in office.
Petitioners in G.R. No. 179994 also prayed that they be allowed to inspect the detention
areas of the following places:
1. 7th Infantry Division at Fort Magsaysay, Laur, Nueva Ecija
2. 24th Infantry Batallion at Limay, Bataan
3. Army Detachment inside Valmocina Farm, Pinaod, San Ildefonso, Bulacan
4. Camp Tecson, San Miguel, Bulacan
5. The Resthouse of Donald Caigas alias Allan or Alvin of the 24th Infantry
Batallion at Barangay Banog, Bolinao, Pangasinan
6. 56th Infantry Batallion Headquarters at Iba, Hagonoy, Bulacan
7. Army Detachment at Barangay Mercado, Hagonoy, Bulacan
8. Beach House [at] Iba, Zambales used as a safehouse with a retired military
personnel as a caretaker;
By Resolution of October 25, 2007, the Court issued in G.R. No. 179994 a writ of amparo
returnable to the Special Former Eleventh Division of the appellate court, and ordered
the consolidation of the amparo petition with the pending habeas corpus petition.
Docketed as CA-G.R. SP No. 002, respondents in the amparo case, through the Solicitor
General, filed their Return of the Writ on November 6, 2007.15 In the Return, Gen.
Palparan, Lt. Col. Boac and Lt. Mirabelle reiterated their earlier narrations in the habeas
corpus case.
Gen. Hermogenes Esperon Jr. stated in the Return that he immediately caused to
investigate and verify the identities of the missing persons and was aware of the earlier
decision of the appellate court ordering the police, the Commission on Human Rights
and the National Bureau of Investigation to take further action on the matter.16
Lt. Col. Felipe Anotado, the then battalion commander of the 24th Infantry Battalion
based in Balanga City, Bataan, denied any involvement in the abduction. While the 24th
Infantry Battalion detachment was reported to be a detention site of the missing persons,
Lt. Col. Anotado claimed that he found no untoward incident when he visited said
detachment. He also claimed that there was no report of the death of Merino per his
inquiry with the local police.17
Police Director General Avelino Razon narrated that he ordered the compilation of
pertinent records, papers and other documents of the PNP on the abduction of the three,
and that the police exhausted all possible actions available under the circumstances.18
In addition to the witnesses already presented in the habeas corpus case, petitioners
called on Adoracion Paulino and Raymond Manalo to testify during the trial.
Adoracion Paulino recalled that her daughter-in-law Sherlyn showed up at home on April
11, 2007, accompanied by two men and three women whom she believed were soldiers.
She averred that she did not report the incident to the police nor inform Sherlyn’s mother
about the visit.19
Raymond Manalo (Manalo) claimed that he met the three abducted persons when he
was illegally detained by military men in Camp Tecson in San Miguel, Bulacan. His group
was later taken to a camp in Limay, Bataan. He recalled that Lt. Col. Anotado was the
one who interrogated him while in detention.20
In his Sinumpaang Salaysay,21 Manalo recounted:
xxxx
59. Saan ka dinala mula sa Sapang?
Pagkalipas ng humigit kumulang 3 buwan sa Sapang, dinala ako sa Camp Tecson sa
ilalim ng 24th IB.
xxxx
Sa loob ng barracks ko nakilala si Sherlyn Cadapan, isang estudyante ng UP.
Ipinapalinis din sa akin ang loob ng barracks. Sa isang kwarto sa loob ng barracks, may
nakita akong babae na nakakadena[.] Noong una, pinagbawalan akong makipag-usap
sa kanya. Sa ikatlo o ikaapat na araw, nakausap ko yung babaeng nagngangalang
Sherlyn. Binigyan ko siya ng pagkain. Sinabi niya sa akin na dinukot si[ya] sa Hagonoy,
Bulacan at matindi ang tortyur na dinaranas niya. Sabi niya gusto niyang umuwi at
makasama ang kanyang magulang. Umiiyak siya. Sabi niya sa akin ang buong pangalan
niya ay Sherlyn Cadapan, mula sa Laguna. Sa araw tinatanggal ang kanyang kadena at
inuutusan si Sherlyn na maglaba.
x x x x.
61. Sino ang mga nakilala mo sa Camp Tecson?
Dito sa Camp Tecson naming nakilala si ‘Allan Alvin’ (maya-maya nalaman naming na
siya pala si Donald Caigas), ng 24th IB, na tinatawag na ‘master’ o ‘commander’ ng
kanyang mga tauhan.
Pagkalipas ng 2 araw matapos dalhin si Reynaldo sa Camp Tecson dumating sina Karen
Empeño at Manuel Merino na mga bihag din. Inilagay si Karen at Manuel sa kwarto ni
‘Allan[.]’ Kami naman ni Reynaldo ay nasa katabing kwarto, kasama si Sherlyn.
xxxx
62. x x x x
Kaming mga lalake (ako, si Reynaldo at si Manuel) ay ginawang utusan, habang sina
Sherlyn at Karen ay ginawang labandera.
Si Sherlyn ang pinahirapan nina Mickey, Donald at Billy. Sabi ni Sherlyn sa akin na siya’y
ginahasa.
xxxx
63. x x x x
xxxx
Kaming lima (ako, si Reynaldo, si Sherlyn, si Karen at si [Merino]) ang dinala sa Limay.
Sinakay ako, si Reynaldo, si Sherlyn at si [Merino] sa isang stainless na jeep. Si Karen
ay isinakay sa itim na sasakyan ni Donald Caigas. x x x x
xxxx
66. Saan pa kayo dinala mula sa Limay, Bataan?
Mula sa Limay, kaming 5 (ako, si Reynaldo, si Sherlyn, Si Karen at si Manuel) ay dinala
sa isang safehouse sa Zambales, tabi ng dagat. x x x x (underscoring supplied; italics
and emphasis in the original)
On rebuttal, Lt. Col. Anotado and Col. Eduardo Boyles Davalan were called to the
witness stand.
Lt. Col. Anotado denied seeing or meeting Manalo. He posited that Manalo recognized
him because he was very active in conducting lectures in Bataan and even appeared on
television regarding an incident involving the 24th Infantry Batallion. He contended that it
was impossible for Manalo, Sherlyn, Karen and Merino to be detained in the Limay
detachment which had no detention area.
Col. Eduardo Boyles Davalan, the then chief of staff of the First Scout Ranger Regiment
in Camp Tecson, testified that the camp is not a detention facility, nor does it conduct
military operations as it only serves as a training facility for scout rangers. He averred
that his regiment does not have any command relation with either the 7th Infantry
Division or the 24th Infantry Battalion.22
By Decision of September 17, 2008,23 the appellate court granted the Motion for
Reconsideration in CA-G.R. SP No. 95303 (the habeas corpus case) and ordered the
immediate release of Sherlyn, Karen and Merino in CA-G.R. SP No. 00002 (the amparo
case). Thus it disposed:
WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case), the Motion for
Reconsideration is GRANTED.
Accordingly, in both CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-G.R. SP
NO. 00002 (Amparo case), the respondents are thereby ordered to immediately
RELEASE, or cause the release, from detention the persons of Sher[lyn] Cadapan,
Karen Empeño and Manuel Merino.
Respondent Director General Avelino Razon is hereby ordered to resume [the] PNP’s
unfinished investigation so that the truth will be fully ascertained and appropriate charges
filed against those truly responsible.
SO ORDERED.
In reconsidering its earlier Decision in the habeas corpus case, the appellate court relied
heavily on the testimony of Manalo in this wise:
With the additional testimony of Raymond Manalo, the petitioners have been able to
convincingly prove the fact of their detention by some elements in the military. His
testimony is a first hand account that military and civilian personnel under the 7th Infantry
Division were responsible for the abduction of Sherlyn Cadapan, Karen Empeño and
Manuel Merino. He also confirmed the claim of Oscar Leuterio that the latter was
detained in Fort Magsaysay. It was there where he (Leuterio) saw Manuel Merino.
His testimony that Leuterio saw Manuel Merino in Fort Magsaysay may be hearsay but
not with respect to his meeting with, and talking to, the three desaparecidos. His
testimony on those points was no hearsay. Raymond Manalo saw the three with his very
own eyes as they were detained and tortured together. In fact, he claimed to be a
witness to the burning of Manuel Merino. In the absence of confirmatory proof, however,
the Court will presume that he is still alive.
The testimony of Raymond Manalo can no longer be ignored and brushed aside. His
narration and those of the earlier witnesses, taken together, constitute more than
substantial evidence warranting an order that the three be released from detention if they
are not being held for a lawful cause. They may be moved from place to place but still
they are considered under detention and custody of the respondents.
His testimony was clear, consistent and convincing. x x x.
xxxx
The additional testimonies of Lt. Col. Felipe Anotado and Col. Eduardo Boyles Davalan
were of no help either. Again, their averments were the same negative ones which
cannot prevail over those of Raymond Manalo. Indeed, Camp Tecson has been utilized
as a training camp for army scout rangers. Even Raymond Manalo noticed it but the
camp’s use for purposes other than training cannot be discounted.
xxxx
In view of the foregoing, there is now a clear and credible evidence that the three missing
persons, [Sherlyn, Karen and Merino], are being detained in military camps and
bases under the 7th Infantry Division. Being not held for a lawful cause, they should be
immediately released from detention. (italic in the original; emphasis and underscoring
supplied)
Meanwhile, in the amparo case, the appellate court deemed it a superfluity to issue any
inspection order or production order in light of the release order. As it earlier ruled in the
habeas corpus case, it found that the three detainees’ right to life, liberty and security
was being violated, hence, the need to immediately release them, or cause their release.
The appellate court went on to direct the PNP to proceed further with its investigation
since there were enough leads as indicated in the records to ascertain the truth and file
the appropriate charges against those responsible for the abduction and detention of the
three.
Lt. Col. Rogelio Boac, et al. challenged before this Court, via petition for review, the
September 17, 2008 Decision of the appellate court. This was docketed as G.R. Nos.
184461-62, the first above-captioned case- subject of the present Decision.
Erlinda Cadapan and Concepcion Empeño, on the other hand, filed their own petition for
review also challenging the same September 17, 2008 Decision of the appellate court
only insofar as the amparo aspect is concerned. Their petition, docketed as G.R. No.
179994, was redocketed as G.R. No. 184495, the second above-captioned case.
By Resolution of June 15, 2010, the Court ordered the consolidation of G.R. No. 184495
with G.R. Nos. 1844461-62.24
Meanwhile, Erlinda Cadapan and Concepcion Empeño filed before the appellate court a
Motion to Cite Respondents in Contempt of Court for failure of the respondents in the
amparo and habeas corpus cases to comply with the directive of the appellate court to
immediately release the three missing persons. By Resolution of March 5, 2009,25 the
appellate court denied the motion, ratiocinating thus:
While the Court, in the dispositive portion, ordered the respondents "to immediately
RELEASE, or cause the release, from detention the persons of Sherlyn Cadapan, Karen
Empeño and Manuel Merino," the decision is not ipso facto executory. The use of the
term "immediately" does not mean that that it is automatically executory. There is nothing
in the Rule on the Writ of Amparo which states that a decision rendered is immediately
executory. x x x.
Neither did the decision become final and executory considering that both parties
questioned the Decision/Resolution before the Supreme Court. x x x.
Besides, the Court has no basis. The petitioners did not file a motion for execution
pending appeal under Section 2 of Rule 39. There being no motion, the Court could not
have issued, and did not issue, a writ of execution. x x x. (underscoring supplied)
Via a petition for certiorari filed on March 30, 2009 before this Court, Erlinda Cadapan
and Concepcion Empeño challenged the appellate court’s March 5, 2009 Resolution
denying their motion to cite respondents in contempt. The petition was docketed as G.R.
No. 187109, the last above-captioned case subject of the present Decision.
Only Lt. Col. Anotado and Lt. Mirabelle remained of the original respondents in the
amparo and habeas corpus cases as the other respondents had retired from government
service.26 The AFP has denied that Arnel Enriquez was a member of the Philippine
Army.27 The whereabouts of Donald Caigas remain unknown.28
In G.R. Nos. 184461-62, petitioners posit as follows:
I
…THE COURT OF APPEALS GROSSLY MISAPPRECIATED THE VALUE OF
THE TESTIMONY OF RAYMOND MANALO.
II
THE PETITION[S] FOR HABEAS CORPUS AND WRIT OF AMPARO SHOULD
BE DISMISSED BECAUSE RESPONDENTS FAILED TO PROVE BY THE
REQUIRED QUANTUM OF EVIDENCE THAT PETITIONERS HAVE SHERLYN
CADAPAN, KAREN EMPEñO AND MANUEL MERINO ARE IN THEIR
CUSTODY.
III
 PETITIONERS’ DENIALS PER SE SHOULD NOT HAVE BEEN TAKEN
AGAINST THEM BECAUSE THEY DID NOT REALLY HAVE ANY
INVOLVEMENT IN THE ALLEGED ABDUCTION; MOREOVER, THE
SUPPOSED INCONSISTENCIES IN THEIR TESTIMONIES ARE ON POINTS
IRRELEVANT TO THE PETITION.
IV
THE DISPOSITIVE PORTION OF THE ASSAILED DECISION IS VAGUE AND
INCONGRUENT WITH THE FINDINGS OF THE COURT OF APPEALS.
V
THE COURT OF APPEALS IGNORED AND FAILED TO RULE UPON THE
FATAL PROCEDURAL INFIRMITIES IN THE PETITION FOR WRIT OF
AMPARO.29
In G.R. No. 184495, petitioners posit as follows:
5. The Court of Appeals erred in not granting the Interim Relief for Inspection of
Places;
6. The Court of Appeals erred in not granting the Interim Relief for Production of
Documents;
7. The Court of Appeals erred in not finding that the Police Director Gen. Avelino
Razon did not make extraordinary diligence in investigating the enforced
disappearance of the aggrieved parties…
8. The Court of Appeals erred in not finding that this was not the command
coming from the highest echelon of powers of the Armed Forces of the
Philippines, Philippine Army and the Seventh Infantry Division of the Philippine
Army to enforcibly disappear [sic] the aggrieved parties…
9. The Court of Appeals erred in dropping President Gloria Macapagal Arroyo as
party respondent in this case;
10. The Court of Appeals erred in not finding that President Gloria Macapagal
Arroyo had command responsibility in the enforced disappearance and continued
detention of the three aggrieved parties…
11. The Court of Appeals erred in not finding that the Armed Forces Chief of Staff
then Hermogenes Esperon and the Present Chief of Staff as having command
responsibility in the enforced disappearance and continued detention of the three
aggrieved parties…30
In G.R. No. 187109, petitioners raise the following issues:
[1] Whether… the decision in the Court of Appeals has become final and
executory[.]
[2] Whether…there is a need to file a motion for execution in a Habeas Corpus
decision or in an Amparo decision[.]
[3] Whether…an appeal can stay the decision of a Habeas Corpus [case] [or] an
Amparo case[.]31
Essentially, the consolidated petitions present three primary issues, viz: a) whether the
testimony of Raymond Manalo is credible; b) whether the chief of the AFP, the
commanding general of the Philippine Army, as well as the heads of the concerned units
had command responsibility over the abduction and detention of Sherlyn, Karen and
Merino; and c) whether there is a need to file a motion for execution to cause the release
of the aggrieved parties.
G.R. Nos. 184461-62
Petitioners Lt. Col. Boac, et al. contend that the appellate court erred in giving full
credence to the testimony of Manalo who could not even accurately describe the
structures of Camp Tecson where he claimed to have been detained along with Sherlyn,
Karen and Merino. They underscore that Camp Tecson is not under the jurisdiction of the
24th Infantry Batallion and that Manalo’s testimony is incredible and full of
inconsistencies.32
In Secretary of National Defense v. Manalo,33 an original petition for Prohibition,
Injunction and Temporary Restraining Order which was treated as a petition under the
Amparo Rule, said Rule having taken effect during the pendency of the petition, the
Court ruled on the truthfulness and veracity of the personal account of Manalo which
included his encounter with Sherlyn, Kara and Merino while on detention. Thus it held:
We affirm the factual findings of the appellate court, largely based on respondent
Raymond Manalo’s affidavit and testimony, viz:
x x x x.
We reject the claim of petitioners that respondent Raymond Manalo’s statements were
not corroborated by other independent and credible pieces of evidence. 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, 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," firms up respondents’ story that they were detained for some
time in said military facility. (citations omitted; emphasis and underscoring supplied)
On Manalo’s having allegedly encountered Sherlyn, Karen and Merino while on
detention, the Court in the immediately cited case synthesized his tale as follows:
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.
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival,
two other captives, Karen Empeño 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.
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.
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.
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. 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.
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.
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:
x x x x.34 (emphasis and underscoring supplied)
The Court takes judicial notice of its Decision in the just cited Secretary of National
Defense v. Manalo35 which assessed the account of Manalo to be a candid and forthright
narrative of his and his brother Reynaldo’s abduction by the military in 2006; and of the
corroborative testimonies, in the same case, of Manalo’s brother Reynaldo and a
forensic specialist, as well as Manalo’s graphic description of the detention area. There is
thus no compelling reason for the Court, in the present case, to disturb its appreciation in
Manalo’s testimony. The outright denial of petitioners Lt. Col. Boac, et al. thus crumbles.
Petitioners go on to point out that the assailed Decision of the appellate court is "vague
and incongruent with [its] findings" for, so they contend, while the appellate court referred
to the perpetrators as "misguided and self-righteous civilian and military elements of the
7th Infantry Division," it failed to identify who these perpetrators are. Moreover,
petitioners assert that Donald Caigas and Arnel Enriquez are not members of the AFP.
They furthermore point out that their co-petitioners Generals Esperon, Tolentino and
Palparan have already retired from the service and thus have no more control of any
military camp or base in the country.36
There is nothing vague and/or incongruent about the categorical order of the appellate
court for petitioners to release Sherlyn, Karen and Merino. In its discourse, the appellate
court merely referred to "a few misguided self-righteous people who resort to the
extrajudicial process of neutralizing those who disagree with the country’s democratic
system of government." Nowhere did it specifically refer to the members of the 7th
Infantry Division as the "misguided self-righteous" ones.
Petitioners finally point out that the parents of Sherlyn and Karen do not have the
requisite standing to file the amparo petition on behalf of Merino. They call attention to
the fact that in the amparo petition, the parents of Sherlyn and Karen merely indicated
that they were "concerned with Manuel Merino" as basis for filing the petition on his
behalf.37
Section 2 of the Rule on the Writ of Amparo38 provides:
The petition may be filed by the aggrieved party or by any qualified person or entity in the
following order:
(a) Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party within
the fourth civil degree of consanguinity or affinity, in default of those mentioned in
the preceding paragraph; or
 (c) Any concerned citizen, organization, association or institution, if there is no
known member of the immediate family or relative of the aggrieved party.
Indeed, the parents of Sherlyn and Karen failed to allege that there were no known
members of the immediate family or relatives of Merino. The exclusive and successive
order mandated by the above-quoted provision must be followed. The order of priority is
not without reason—"to prevent the indiscriminate and groundless filing of petitions for
amparo which may even prejudice the right to life, liberty or security of the aggrieved
party."39
The Court notes that the parents of Sherlyn and Karen also filed the petition for habeas
corpus on Merino’s behalf. No objection was raised therein for, in a habeas corpus
proceeding, any person may apply for the writ on behalf of the aggrieved party.40
It is thus only with respect to the amparo petition that the parents of Sherlyn and Karen
are precluded from filing the application on Merino’s behalf as they are not authorized
parties under the Rule.
G.R. No. 184495
Preliminarily, the Court finds the appellate court’s dismissal of the petitions against then
President Arroyo well-taken, owing to her immunity from suit at the time the habeas
corpus and amparo petitions were filed.41
Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the high office of the
President, the Head of State, if he can be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. x x x 42
Parenthetically, the petitions are bereft of any allegation that then President Arroyo
permitted, condoned or performed any wrongdoing against the three missing persons.
On the issue of whether a military commander may be held liable for the acts of his
subordinates in an amparo proceeding, a brief discussion of the concept of command
responsibility and its application insofar as amparo cases already decided by the Court is
in order.
Rubrico v. Macapagal Arroyo43 expounded on the concept of command responsibility as
follows:
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 present-day precept of holding a superior
accountable for the atrocities committed by his subordinates should he be remiss in his
duty of control over them. As then formulated, command responsibility is "an omission
mode of individual criminal liability," whereby the superior is made responsible
for crimes committed by his subordinates for failing to prevent or punish the
perpetrators (as opposed to crimes he ordered). (citations omitted; emphasis in the
original; underscoring supplied)44
It bears stressing that command responsibility is properly a form of criminal
complicity,45 and thus a substantive rule that points to criminal or administrative liability.
An amparo proceeding is not criminal in nature nor does it ascertain the criminal liability
of individuals or entities involved. Neither does it partake of a civil or administrative
suit.46 Rather, it is a remedial measure designed to direct specified courses of action to
government agencies to safeguard the constitutional right to life, liberty and security of
aggrieved individuals.47
Thus Razon Jr. v. Tagitis 48 enlightens:
[An amparo proceeding] does nor 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…for purposes of imposing the
appropriate remedies to address the disappearance…49 (emphasis and underscoring
supplied)
Further, Tagitis defines what constitutes "responsibility" and "accountability," viz:
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. 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.50 (emphasis in the original;
underscoring supplied)
Rubrico categorically denies the application of command responsibility in amparo cases
to determine criminal liability.51 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.52 (emphasis and
underscoring supplied)
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.53 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.
Relatedly, the legislature came up with Republic Act No. 985154 (RA 9851) to include
command responsibility as a form of criminal complicity in crimes against international
humanitarian law, genocide and other crimes.55 RA 9851 is thus the substantive law that
definitively imputes criminal liability to those superiors who, despite their position, still fail
to take all necessary and reasonable measures within their power to prevent or repress
the commission of illegal acts or to submit these matters to the competent authorities for
investigation and prosecution.
The Court finds that the appellate court erred when it did not specifically name the
respondents that it found to be responsible for the abduction and continued detention of
Sherlyn, Karen and Merino. For, from the records, it appears that the responsible and
accountable individuals are Lt. Col. Anotado, Lt. Mirabelle, Gen. Palparan, Lt. Col. Boac,
Arnel Enriquez and Donald Caigas. They should thus be made to comply with the
September 17, 2008 Decision of the appellate court to IMMEDIATELY RELEASE
Sherlyn, Karen and Merino.
The petitions against Generals Esperon, Razon and Tolentino should be dismissed for
lack of merit as there is no showing that they were even remotely accountable and
responsible for the abduction and continued detention of Sherlyn, Karen and Merino.
G.R. No. 187109.
Contrary to the ruling of the appellate court, there is no need to file a motion for
execution for an amparo or habeas corpus decision. Since the right to life, liberty and
security of a person is at stake, the proceedings should not be delayed and execution of
any decision thereon must be expedited as soon as possible since any form of delay,
even for a day, may jeopardize the very rights that these writs seek to immediately
protect.
The Solicitor General’s argument that the Rules of Court supplement the Rule on the
Writ of Amparo is misplaced. The Rules of Court only find suppletory application in an
amparo proceeding if the Rules strengthen, rather than weaken, the procedural efficacy
of the writ. As it is, the Rule dispenses with dilatory motions in view of the urgency in
securing the life, liberty or security of the aggrieved party. Suffice it to state that a motion
for execution is inconsistent with the extraordinary and expeditious remedy being offered
by an amparo proceeding.
In fine, the appellate court erred in ruling that its directive to immediately release Sherlyn,
Karen and Merino was not automatically executory. For that would defeat the very
purpose of having summary proceedings56 in amparo petitions. Summary proceedings, it
bears emphasis, are immediately executory without prejudice to further appeals that may
be taken therefrom.57
WHEREFORE, in light of the foregoing discussions, the Court renders the following
judgment:
1. The Petitions in G.R. Nos. 184461-62 and G.R. No. 184495 are DISMISSED.
The Decision of the Court of Appeals dated September 17, 2008 is AFFIRMED
with modification in that respondents in G.R. No. 184495, namely Lt. Col. Felipe
Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio
Boac, Arnel Enriquez and Donald Caigas are ordered to immediately release
Sherlyn Cadapan, Karen Empeño and Manuel Merino from detention.
The petitions against Generals Esperon, Razon and Tolentino are DISMISSED.
2. The petition in G.R. No. 187109 is GRANTED. The named respondents are
directed to forthwith comply with the September 17, 2008 Decision of the
appellate court. Owing to the retirement and/or reassignment to other places of
assignment of some of the respondents herein and in G.R. No. 184495, the
incumbent commanding general of the 7th Infantry Division and the incumbent
battalion commander of the 24th Infantry Battalion, both of the Philippine Army,
are enjoined to fully ensure the release of Sherlyn Cadapan, Karen Empeño and
Manuel Merino from detention. 1awphi1
Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito
Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas shall remain
personally impleaded in the petitions to answer for any responsibilities and/or
accountabilities they may have incurred during their incumbencies.
Let copies of this Decision and the records of these cases be furnished the Department
of Justice (DOJ), the Philippine National Police (PNP) and the Armed Forces of the
Philippines (AFP) for further investigation to determine the respective criminal and
administrative liabilities of respondents.
All the present petitions are REMANDED to the Court of Appeals for appropriate action,
directed at monitoring of the DOJ, PNP and AFP investigations and the validation of their
results.
SO ORDERED.
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               having any reference to petitioner.
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
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 petitioner’s 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.
Petitioner’s 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 People’s 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 the papag 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 over-fatigue 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. Ramil’s
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 Rodriguez’s 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 Rodriguez’s 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. 1âwphi1
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 Agent’s 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 2010,41 alleging 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 latter’s
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 Wilma’s 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 petitioner’s 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 people’s 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 person’s 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 Rodriguez’s 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,  we clarified the doctrine that a non-sitting President does not
73
enjoy immunity from suit, even for acts committed during the latter’s 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 [Estrada’s] 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 non-sitting
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           x x x          x x x
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 president’s 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 and Romagoza v.
Garcia – civil actions filed under the Alien Tort Claims Act and the Torture Victim
Protection Act.80 This 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 in Rubrico:
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.
x x x           x x x          x x x
If command responsibility were to be invoked and applied to these proceedings, it
should, at most, be only to determine the author who, at the first instance, is accountable
for, and has the duty to address, the disappearance and harassments complained of, so
as to enable the Court to devise remedial measures that may be appropriate under the
premises to protect rights covered by the writ of amparo. As intimated earlier, however,
the determination should not be pursued to fix criminal liability on respondents
preparatory to criminal prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there be any.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 one’s 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 statute’s 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
ponencia’s 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,  necessarily
85
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
official’s 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 Rodriguez’s 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 Court’s
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 Rodriguez’s 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.
Rodriguez’s 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 Rodriguez’s abduction was corroborated by Carlos in his
Sinumpaang Salaysay dated 16 September 2009,99 wherein he recounted in detail the
circumstances surrounding the victim’s 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;
x x x           x x x          x x x
 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;
x x x           x x x          x x x
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 former’s 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 petitioner’s 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 petitioner’s 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,
Rodriguez’s 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 Rodriguez’s 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.
x x x           x x x          x x x
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 Rodriguez’s 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 Ramirez’s 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 petitioner’s 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 petitioner’s 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 petitioner’s 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 Rodriguez’s 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.
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 Amparo
from 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 Amparo 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 CPA’s
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 James’s 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 Saymor’s3 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 co-employee 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 man’s 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
James’s 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 James’s 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 James’s 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 James’s whereabouts. The family likewise went to Baguio Police Station 7 to report
James’s 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 James’s 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
James’s 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 James’s 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 individual’s 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 of amparo 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. Casiño 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 James’s 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 5’1" to 5’5" 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 Helen’s Bread. At about 8:30
AM of October 9, 2008, Aniceto Dawing Jr[.] y Gano, the driver of the delivery
van of Helen’s 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-law’s store, gun-wielding 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 5’4" in height and a certain Rene about
30-35 years old and stands 5’5", 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 Saymor’s 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 James’s
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 Saymor’s 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. Lumbag’s
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 People’s 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 James’s 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 James’s house in Fairview at around 9:00 a.m. James’s
housemates, however, told her that he left at 7:00 a.m.
Nonette also testified that they only reported James’s 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 People’s Army. Attached to
Anongos’s 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 People’s
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"26 from 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 party-respondent 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 James’s 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 James’s disappearance is
his activist/political leanings and that James’s 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 Beverly’s 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 James’s right to
security of person. It found the investigation conducted by respondents as very limited,
superficial and one-sided. The police and military thus miserably failed to conduct an
effective investigation of James’s 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 RTC’s 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 COURT’S 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 Court’s 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 Balao’s
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 petition’s 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
People’s 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
UNHRC’s 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 military’s 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 government’s 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 present-day precept of holding a superior
accountable for the atrocities committed by his subordinates should he be remiss in his
duty of control over them. As then formulated, command responsibility is "an omission
mode of individual criminal liability," whereby the superior is made responsible 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 impleaded—not actually on the basis of command responsibility—but 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 one-sided." 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 Balao’s abduction as revealed by the investigation report of
respondent’s 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 James’s 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 cross-examination 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 James’s abductors to help the
PNP in its investigation.
Assuming there was reluctance on the part of the Balao family and CPA to submit
James’s relatives or colleagues for questioning by agents of the PNP and AFP, they
cannot be faulted for such stance owing to the military’s 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-sided––hence, ineffective––
investigation by the military or the police of reported cases under their jurisdiction. As
found by the CA, the local police stations concerned, including P/Supt. Roquero and
P/Insp. Gomez, did conduct a preliminary fact-finding on petitioners’ complaint. They
could not, however, make any headway, owing to what was perceived to be the refusal
of Lourdes, her family, and her witnesses to cooperate. Petitioners’ counsel, Atty. Rex
J.M.A. Fernandez, provided a plausible explanation for his clients and their witnesses’
attitude, "[They] do not trust the government agencies to protect them.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 one’s right by the government. And this
protection includes conducting effective investigations of extra-legal killings, enforced
disappearances, or threats of the same kind. The nature and importance of an
investigation are captured in the Velasquez Rodriguez case, 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 James’s 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 court’s 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 Balao’s disappearance.
In view of the foregoing evidentiary gaps, respondents clearly failed to discharge their
burden of extraordinary diligence in the investigation of James’s 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 Office–
Cordillera, 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; and 1awphi1
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.
G.R. No. 184467               June 19, 2012
EDGARDO NAVIA, RUBEN DIO, and ANDREW BUISING, Petitioners,
1  2 
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 certiorari filed in relation to Section 19 of A.M. No. 07-9-12-
4 
SC challenges the July 24, 2008 Decision of the Regional Trial Court (RTC), Branch 20,
5  6 
Malolos City which granted the Petition for Writ of Amparo filed by herein respondent
7 
against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies
Corporation (Asian Land) arrived at the house of Lolita M. Lapore (Lolita) located at 7A
8 
Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam, Malolos City. The arrival of
the vehicle awakened Lolita’s 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. The supervisor of the security
10 
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. The reported
11 
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 department’s 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. Soon, Navia arrived and Buising informed him that the complainant
12 
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. His mother Lolita also
13 
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 Navia’s instructions, Dio and Buising went back to the house of Lolita to make her
sign the logbook as witness that they indeed released Ben from their custody. Lolita
asked Buising to read aloud that entry in the logbook where she was being asked to sign,
to which Buising obliged. Not contented, Lolita put on her reading glasses and read the
entry in the logbook herself before affixing her signature therein. After which, the guards
left.
Subsequently, petitioners received an invitation from the Malolos City Police Station
15 
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. They
17 
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?" and slapped him while he was still seated. Ben begged for mercy, but his pleas
19 
were met with a flurry of punches coming from Navia hitting him on different parts of his
body. Navia then took hold of his gun, looked at Bong, and said, "Wala kang nakita at
20 
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 guard’s logbook where she
undertook not to allow Ben to stay in her house anymore. Thereafter, Navia again asked
23 
Lolita to sign the logbook. Upon Lolita’s 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 latter’s 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. At that juncture, Ben grabbed Bong and pleaded not to be left alone. However,
24 
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 Bong’s release. Since it was dark and she has poor
eyesight, Lolita took Buising’s 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 Ben’s disappearance, it dawned upon Lolita that
petitioners took advantage of her poor eyesight and naivete. They made her sign the
logbook as a witness that they already released Ben when in truth and in fact she never
witnessed his actual release. The last time she saw Ben was when she left him in
petitioners’ custody at the security office.
27
Exasperated with the mysterious disappearance of her husband, Virginia filed a Petition
for Writ of Amparo before the RTC of Malolos City. Finding the petition sufficient in form
28 
and substance, the amparo court issued an Order dated June 26, 2008 directing, among
29 
others, the issuance of a writ of amparo and the production of the body of Ben before it
on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution [in] A.M.
No. 07-[9]-12-SC, also known as "The Rule On The Writ Of Amparo", let a writ of amparo
be issued, as follows:
 (1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising of
the Asian Land Security Agency to produce before the Court the body of
aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the petition on the
aforementioned date and time, and DIRECTING the [petitioners] to personally
appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising
to file, within a non-extendible period of seventy-two (72) hours from service of
the writ, a verified written return with supporting affidavits which shall, among
other things, contain the following:
a) The lawful defenses to show that the [petitioners] did not violate or
threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission;
b) The steps or actions taken by the [petitioners] to determine the fate or
whereabouts of the aggrieved party and the person or persons
responsible for the threat, act or omission; and
c) All relevant information in the possession of the [petitioners] pertaining
to the threat, act or omission against the aggrieved party.
(4) GRANTING, motu proprio, a Temporary Protection Order prohibiting the
[petitioners], or any persons acting for and in their behalf, under pain of
contempt, from threatening, harassing or inflicting any harm to [respondent], his
immediate family and any [member] of his household.
The Branch Sheriff is directed to immediately serve personally on the [petitioners], at
their address indicated in the petition, copies of the writ as well as this order, together
with copies of the petition and its annexes. 30
A Writ of Amparo was accordingly issued and served on the petitioners on June 27,
31 
2008. On June 30, 2008, petitioners filed their Compliance praying for the denial of the
32  33 
petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the testimony of
Buising, while Virginia submitted the sworn statements of Lolita and Enrique which the
34 
two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision granting the petition. It
35 
disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and deems it
proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to immediately
conduct a deep and thorough investigation of the [petitioners] Edgardo Navia,
Ruben Dio and Andrew Buising in connection with the circumstances
surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as
part of the investigation, the documents forming part of the records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and the
witnesses who testified in this case protection as it may deem necessary to
secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to
investigate the circumstances concerning the legality of the arrest of [Benhur]
Pardico by the [petitioners] in this case, utilizing in the process, as part of said
investigation, the pertinent documents and admissions forming part of the record
of this case, and take whatever course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the Office of Director
Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED. 36
Petitioners filed a Motion for Reconsideration which was denied by the trial court in an
37 
Order dated August 29, 2008.
38 
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 HUSBAND’S 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 party’s 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 Ben’s 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 Ben’s disappearance.
Our Ruling
Virginia’s 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, Ben’s 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 Ben’s
inherent and constitutionally enshrined right to life, liberty and security. Article 6 of the
41 
International Covenant on Civil and Political Rights recognizes every human being’s
42 
inherent right to life, while Article 9 thereof ordains that everyone has the right to liberty
43 
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 Ben’s disappearance as alleged in
Virginia’s 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-SC’s 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. Then, the budding jurisprudence
45 
on amparo blossomed in Razon, Jr. v. Tagitis when this Court defined enforced
46 
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 Disappearance’s definition of enforced disappearances, as "the
arrest, detention, abduction or any other form of deprivation of liberty by agents of the
State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law." 47
Not long thereafter, another significant development affecting A.M. No. 07-9-12-SC came
about after Congress enacted Republic Act (RA) No. 9851 on December 11, 2009.
48 
Section 3(g) thereof defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or
abduction of persons by, or with the authorization, support or acquiescence of, a State or
a political organization followed by a refusal to acknowledge that deprivation of freedom
or to give information on the fate or whereabouts of those persons, with the intention of
removing from the protection of the law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo where Justice Arturo D. Brion wrote in his
49 
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." Therefore, A.M. No. 07-9-12-SC’s reference
50 
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 organization’s 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 Bong’s 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. 1âwphi1
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 Ben’s disappearance. In
fact, none of its agents, officials, or employees were impleaded or implicated in Virginia’s
amparo petition whether as responsible or accountable persons. Thus, in the absence of
51 
an allegation or proof that the government or its agents had a hand in Ben’s
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.
G.R. No. 182795             June 5, 2008
ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA, petitioners,
vs.
NAPICO HOMEOWNERS ASS’N., I – XIII, INC., ET AL., respondents.
RESOLUTION
REYES, R.T., J.:
THE present petition filed on May 26, 2008 seeks the issuance of a Writ of Amparo upon
the following premise:
Petitioners were deprived of their liberty, freedom and/or rights to shelter
enshrined and embodied in our Constitution, as the result of these nefarious
activities of both the Private and Public Respondents. This ardent request filed
 before this Honorable Supreme Court is the only solution to this problem via this
newly advocated principles incorporated in the Rules – the "RULE ON THE
WRIT OF AMPARO."1
It appears that petitioners are settlers in a certain parcel of land situated in Barangay
Manggahan, Pasig City. Their dwellings/houses have either been demolished as of the
time of filing of the petition, or is about to be demolished pursuant to a court judgment.
While they attempted to focus on issuance of what they claimed to be fraudulent and
spurious land titles, to wit:
Petitioners herein are desirous to help the government, the best way they can, to
unearth these so-called "syndicates" clothed with governmental functions, in
cahoots with the "squatting syndicates" - - - - the low so defines. If only to give
its proper meanings, the Government must be the first one to cleans (sic) its
ranks from these unscrupulous political protégées. If unabated would certainly
ruin and/or destroy the efficacy of the Torrens System of land registration in this
Country. It is therefore the ardent initiatives of the herein Petitioners, by way of
the said prayer for the issuance of the Writ of Amparo, that these unprincipled
Land Officials be summoned to answer their participation in the issuances
of these fraudulent and spurious titles, NOW, in the hands of the Private
Respondents. The Courts of Justice, including this Honorable Supreme
Court, are likewise being made to believe that said titles in the possession
of the Private Respondents were issued untainted with frauds.2
what the petition ultimately seeks is the reversal of this Court’s dismissal of petitions in
G.R. Nos. 177448, 180768, 177701, 177038, thus:
That, Petitioners herein knew before hand that: there can be no motion for
reconsideration for the second or third time to be filed before this Honorable
Supreme Court. As such therefore, Petitioners herein are aware of the opinion
that this present petition should not in any way be treated as such motions fore
reconsideration. Solely, this petition is only for the possible issuance of the writ of
amparo, although it might affect the previous rulings of this Honorable Supreme
Court in these cases, G.R. Nos. 177448, 180768, 177701 and 177038. Inherent
in the powers of the Supreme Court of the Philippines is to modify, reverse
and set aside, even its own previous decision, that can not be thwarted nor
influenced by any one, but, only on the basis of merits and evidence. This
is the purpose of this petition for the Writ of Amparo.3
We dismiss the petition.
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 supplied.)
The threatened demolition of a dwelling by virtue of a final judgment of the court, which in
this case was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701,
177038, is not included among the enumeration of rights as stated in the above-quoted
Section 1 for which the remedy of a writ of amparo is made available. Their claim to their
dwelling, assuming they still have any despite the final and executory judgment adverse
to them, does not constitute right to life, liberty and security. There is, therefore, no legal
basis for the issuance of the writ of amparo.
Besides, the factual and legal basis for petitioners’ claim to the land in question is not
alleged in the petition at all. The Court can only surmise that these rights and interest
had already been threshed out and settled in the four cases cited above. No writ of
amparo may be issued unless there is a clear allegation of the supposed factual and
legal basis of the right sought to be protected.
Under Section 6 of the same rules, the court shall issue the writ upon the filing of the
petition, only if on its face, the court ought to issue said writ.
Section 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice
or judge shall immediately order the issuance of the writ if on its face it ought to
issue. The clerk of court shall issue the writ under the seal of the court; or in case
of urgent necessity, the justice or the judge may issue the writ under his or her
own hand, and may deputize any officer or person to serve it.
The writ shall also set the date and time for summary hearing of the petition
which shall not be later than seven (7) days from the date of its issuance.
Considering that there is no legal basis for its issuance, as in this case, the writ will not
be issued and the petition will be dismissed outright.
This new remedy of writ of amparo which is made available by this Court is intended for
the protection of the highest possible rights of any person, which is his or her right to life,
liberty and security. The Court will not spare any time or effort on its part in order to give
priority to petitions of this nature. However, the Court will also not waste its precious time
and effort on matters not covered by the writ.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
G.R. No. L-14639            March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which
this application for habeas corpus submits for decision. While hardly to be expected to be
met with in this modern epoch of triumphant democracy, yet, after all, the cause presents
no great difficulty if there is kept in the forefront of our minds the basic principles of
popular government, and if we give expression to the paramount purpose for which the
courts, as an independent power of such a government, were constituted. The primary
question is — Shall the judiciary permit a government of the men instead of a
government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might
prove profitable reading for other departments of the government, the facts are these:
The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate
vice, ordered the segregated district for women of ill repute, which had been permitted
for a number of years in the city of Manila, closed. Between October 16 and October 25,
1918, the women were kept confined to their houses in the district by the police.
Presumably, during this period, the city authorities quietly perfected arrangements with
the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some
government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the
police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor
of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170
inmates into patrol wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their belongings, and apparently
were under the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a life in Mindanao.
They had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary guests were
received on board the steamers by a representative of the Bureau of Labor and a
detachment of Constabulary soldiers. The two steamers with their unwilling passengers
sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed
and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by
Feliciano Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear
as parties in the case, had no previous notification that the women were prostitutes who
had been expelled from the city of Manila. The further happenings to these women and
the serious charges growing out of alleged ill-treatment are of public interest, but are not
essential to the disposition of this case. Suffice it to say, generally, that some of the
women married, others assumed more or less clandestine relations with men, others
went to work in different capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were
putting in to Davao, the attorney for the relatives and friends of a considerable number of
the deportees presented an application for habeas corpus to a member of the Supreme
Court. Subsequently, the application, through stipulation of the parties, was made to
include all of the women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as including them. The
application set forth the salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown
parties. The writ was made returnable before the full court. The city fiscal appeared for
the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration
and deportation, and prayed that the writ should not be granted because the petitioners
were not proper parties, because the action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and Sulu, because the respondents did not
have any of the women under their custody or control, and because their jurisdiction did
not extend beyond the boundaries of the city of Manila. According to an exhibit attached
to the answer of the fiscal, the 170 women were destined to be laborers, at good
salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these women had been
sent out of Manila without their consent. The court awarded the writ, in an order of
November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Francisco Sales, governor of the province of Davao,
and Feliciano Yñigo, an hacendero of Davao, to bring before the court the persons
therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own
expense. On motion of counsel for petitioners, their testimony was taken before the clerk
of the Supreme Court sitting as commissioners. On the day named in the order,
December 2nd, 1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of those who had
been able to come back to Manila through their own efforts, were notified by the police
and the secret service to appear before the court. The fiscal appeared, repeated the
facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial
governor of Davao and the answer thereto, and telegrams that had passed between the
Director of Labor and the attorney for that Bureau then in Davao, and offered certain
affidavits showing that the women were contained with their life in Mindanao and did not
wish to return to Manila. Respondents Sales answered alleging that it was not possible to
fulfill the order of the Supreme Court because the women had never been under his
control, because they were at liberty in the Province of Davao, and because they had
married or signed contracts as laborers. Respondent Yñigo answered alleging that he did
not have any of the women under his control and that therefore it was impossible for him
to obey the mandate. The court, after due deliberation, on December 10, 1918,
promulgated a second order, which related that the respondents had not complied with
the original order to the satisfaction of the court nor explained their failure to do so, and
therefore directed that those of the women not in Manila be brought before the court by
respondents Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the
women should, in written statements voluntarily made before the judge of first instance of
Davao or the clerk of that court, renounce the right, or unless the respondents should
demonstrate some other legal motives that made compliance impossible. It was further
stated that the question of whether the respondents were in contempt of court would later
be decided and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of
certain detectives and policemen, and of the provincial governor of Davao, was taken
before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court
of First Instance of Davao acting in the same capacity. On January 13, 1919, the
respondents technically presented before the Court the women who had returned to the
city through their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again recounted the
facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives
and agents, had succeeded in bringing from Davao with their consent eight women; that
eighty-one women were found in Davao who, on notice that if they desired they could
return to Manila, transportation fee, renounced the right through sworn statements; that
fifty-nine had already returned to Manila by other means, and that despite all efforts to
find them twenty-six could not be located. Both counsel for petitioners and the city fiscal
were permitted to submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau
of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city
fiscal requested that the replica al memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ
of habeas corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled — these one hundred and seventy women
were isolated from society, and then at night, without their consent and without any
opportunity to consult with friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble attempt to prove that
the women left voluntarily and gladly, that such was not the case is shown by the mere
fact that the presence of the police and the constabulary was deemed necessary and
that these officers of the law chose the shades of night to cloak their secret and stealthy
acts. Indeed, this is a fact impossible to refute and practically admitted by the
respondents.
With this situation, a court would next expect to resolve the question — By authority of
what law did the Mayor and the Chief of Police presume to act in deporting by duress
these persons from Manila to another distant locality within the Philippine Islands? We
turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
congress. The Governor-General can order the eviction of undesirable aliens after a
hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of
the Revised Ordinances of the city of Manila provide for the conviction and punishment
by a court of justice of any person who is a common prostitute. Act No. 899 authorizes
the return of any citizen of the United States, who may have been convicted of vagrancy,
to the homeland. New York and other States have statutes providing for the commitment
to the House of Refuge of women convicted of being common prostitutes. Always a law!
Even when the health authorities compel vaccination, or establish a quarantine, or place
a leprous person in the Culion leper colony, it is done pursuant to some law or order. But
one can search in vain for any law, order, or regulation, which even hints at the right of
the Mayor of the city of Manila or the chief of police of that city to force citizens of the
Philippine Islands — and these women despite their being in a sense lepers of society
are nevertheless not chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens — to change their domicile from Manila to another
locality. On the contrary, Philippine penal law specifically punishes any public officer
who, not being expressly authorized by law or regulation, compels any person to change
his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so
important as to be found in the Bill of Rights of the Constitution. Under the American
constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence
and considered so elementary in nature as not even to require a constitutional sanction.
Even the Governor-General of the Philippine Islands, even the President of the United
States, who has often been said to exercise more power than any king or potentate, has
no such arbitrary prerogative, either inherent or express. Much less, therefore, has the
executive of a municipality, who acts within a sphere of delegated powers. If the mayor
and the chief of police could, at their mere behest or even for the most praiseworthy of
motives, render the liberty of the citizen so insecure, then the presidents and chiefs of
police of one thousand other municipalities of the Philippines have the same privilege. If
these officials can take to themselves such power, then any other official can do the
same. And if any official can exercise the power, then all persons would have just as
much right to do so. And if a prostitute could be sent against her wishes and under no
law from one locality to another within the country, then officialdom can hold the same
club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be
taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn
him, but by lawful judgment of his peers or by the law of the land. We will sell to no man,
we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111,
1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law.
The courts are the forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of the
Supreme Court of the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only
the more strongly bound to submit to that supremacy, and to observe the limitations
which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882],
106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in
another case, "that one man may be compelled to hold his life, or the means of living, or
any material right essential to the enjoyment of life, at the mere will of another, seems to
be intolerable in any country where freedom prevails, as being the essence of slavery
itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in
issuing the writ of habeas corpus, and makes clear why we said in the very beginning
that the primary question was whether the courts should permit a government of men or
a government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of
the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup
money damages. It may still rest with the parties in interest to pursue such an action, but
it was never intended effectively and promptly to meet any such situation as that now
before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands
provides:
Any public officer not thereunto authorized by law or by regulations of a general
character in force in the Philippines who shall banish any person to a place more
than two hundred kilometers distant from his domicile, except it be by virtue of
the judgment of a court, shall be punished by a fine of not less than three
hundred and twenty-five and not more than three thousand two hundred and fifty
pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a
general character in force in the Philippines who shall compel any person to
change his domicile or residence shall suffer the penalty of destierro and a fine of
not less than six hundred and twenty-five and not more than six thousand two
hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers
find that any public officer has violated this provision of law, these prosecutors will
institute and press a criminal prosecution just as vigorously as they have defended the
same official in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To
quote the words of Judge Cooley in a case which will later be referred to — "It would be
a monstrous anomaly in the law if to an application by one unlawfully confined, ta be
restored to his liberty, it could be a sufficient answer that the confinement was a crime,
and therefore might be continued indefinitely until the guilty party was tried and punished
therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. Any further rights of the parties are left
untouched by decision on the writ, whose principal purpose is to set the individual at
liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three
specific objections to its issuance in this instance. The fiscal has argued (l) that there is a
defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction,
and (3) that the person in question are not restrained of their liberty by respondents. It
was finally suggested that the jurisdiction of the Mayor and the chief of police of the city
of Manila only extends to the city limits and that perforce they could not bring the women
from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were
relatives and friends of the deportees. The way the expulsion was conducted by the city
officials made it impossible for the women to sign a petition for habeas corpus. It was
consequently proper for the writ to be submitted by persons in their behalf. (Code of
Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous
regard for personal liberty, even makes it the duty of a court or judge to grant a writ
of habeas corpus if there is evidence that within the court's jurisdiction a person is
unjustly imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First
Instance of Davao or should have been made returnable before that court. It is a general
rule of good practice that, to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the court of first instance.
But this is not a hard and fast rule. The writ of habeas corpus may be granted by the
Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall
be made returnable before the Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the particular circumstances. In this
instance it was not shown that the Court of First Instance of Davao was in session, or
that the women had any means by which to advance their plea before that court. On the
other hand, it was shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown that the women might still
be imprisoned or restrained of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of and decided immediately by the
appellate court. The failure of the superior court to consider the application and then to
grant the writ would have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ
was prayed for, says counsel, the parties in whose behalf it was asked were under no
restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor
and the chief of police did not extend beyond the city limits. At first blush, this is a tenable
position. On closer examination, acceptance of such dictum is found to be perversive of
the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty.
The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is
sufficient. The forcible taking of these women from Manila by officials of that city, who
handed them over to other parties, who deposited them in a distant region, deprived
these women of freedom of locomotion just as effectively as if they had been imprisoned.
Placed in Davao without either money or personal belongings, they were prevented from
exercising the liberty of going when and where they pleased. The restraint of liberty
which began in Manila continued until the aggrieved parties were returned to Manila and
released or until they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief
executive of any municipality in the Philippines could forcibly and illegally take a private
citizen and place him beyond the boundaries of the municipality, and then, when called
upon to defend his official action, could calmly fold his hands and claim that the person
was under no restraint and that he, the official, had no jurisdiction over this other
municipality. We believe the true principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey the order of the court and thus to
undo the wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person before the
application for the writ is no reason why the writ should not issue. If the mayor and the
chief of police, acting under no authority of law, could deport these women from the city
of Manila to Davao, the same officials must necessarily have the same means to return
them from Davao to Manila. The respondents, within the reach of process, may not be
permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile
and to avow the act with impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of liberty may not thus be
easily evaded.
It must be that some such question has heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem, a close examination of the authorities
fails to reveal any analogous case. Certain decisions of respectable courts are however
very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as
to whether or not a writ of habeas corpus would issue from the Supreme Court to a
person within the jurisdiction of the State to bring into the State a minor child under
guardianship in the State, who has been and continues to be detained in another State.
The membership of the Michigan Supreme Court at this time was notable. It was
composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On
the question presented the court was equally divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J.,
held that the writ should issue. Since the opinion of Justice Campbell was predicated to a
large extent on his conception of the English decisions, and since, as will hereafter
appear, the English courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the
present writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries
and a half have been expended upon the Magna Charta, and rivers of blood
shed for its establishment; after its many confirmations, until Coke could declare
in his speech on the petition of right that "Magna Charta was such a fellow that
he will have no sovereign," and after the extension of its benefits and securities
by the petition of right, bill of rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the protection of personal liberty,
which is the life and soul of the whole instrument, is so easy as is claimed here. If
it is so, it is important that it be determined without delay, that the legislature may
apply the proper remedy, as I can not doubt they would, on the subject being
brought to their notice. . . .
The second proposition — that the statutory provisions are confined to the case
of imprisonment within the state — seems to me to be based upon a
misconception as to the source of our jurisdiction. It was never the case in
England that the court of king's bench derived its jurisdiction to issue and enforce
this writ from the statute. Statutes were not passed to give the right, but to
compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this
writ is, that it is directed to and served upon, not the person confined, but his
jailor. It does not reach the former except through the latter. The officer or person
who serves it does not unbar the prison doors, and set the prisoner free, but the
court relieves him by compelling the oppressor to release his constraint. The
whole force of the writ is spent upon the respondent, and if he fails to obey it, the
means to be resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if any other
means are resorted to, they are only auxiliary to those which are usual. The
place of confinement is, therefore, not important to the relief, if the guilty party is
within reach of process, so that by the power of the court he can be compelled to
release his grasp. The difficulty of affording redress is not increased by the
confinement being beyond the limits of the state, except as greater distance may
 affect it. The important question is, where the power of control exercised? And I
am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac.
Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had
been taken out of English by the respondent. A writ of habeas corpus was issued by the
Queen's Bench Division upon the application of the mother and her husband directing
the defendant to produce the child. The judge at chambers gave defendant until a certain
date to produce the child, but he did not do so. His return stated that the child before the
issuance of the writ had been handed over by him to another; that it was no longer in his
custody or control, and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22.
That writ commanded the defendant to have the body of the child before a judge
in chambers at the Royal Courts of Justice immediately after the receipt of the
writ, together with the cause of her being taken and detained. That is a command
to bring the child before the judge and must be obeyed, unless some lawful
reason can be shown to excuse the nonproduction of the child. If it could be
shown that by reason of his having lawfully parted with the possession of the
child before the issuing of the writ, the defendant had no longer power to
produce the child, that might be an answer; but in the absence of any lawful
reason he is bound to produce the child, and, if he does not, he is in contempt of
the Court for not obeying the writ without lawful excuse. Many efforts have been
made in argument to shift the question of contempt to some anterior period for
the purpose of showing that what was done at some time prior to the writ cannot
be a contempt. But the question is not as to what was done before the issue of
the writ. The question is whether there has been a contempt in disobeying the
writ it was issued by not producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the
Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was
directed to the defendant to have before the circuit court of the District of Columbia three
colored persons, with the cause of their detention. Davis, in his return to the writ, stated
on oath that he had purchased the negroes as slaves in the city of Washington; that, as
he believed, they were removed beyond the District of Columbia before the service of the
writ of habeas corpus, and that they were then beyond his control and out of his custody.
The evidence tended to show that Davis had removed the negroes because he
suspected they would apply for a writ of habeas corpus. The court held the return to be
evasive and insufficient, and that Davis was bound to produce the negroes, and Davis
being present in court, and refusing to produce them, ordered that he be committed to
the custody of the marshall until he should produce the negroes, or be otherwise
discharged in due course of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the negroes had run away and
been lodged in jail in Maryland. Davis produced the two negroes on the last day of the
term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See
also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by
the respondents constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of
the Supreme Court awarding the writ of habeas corpus, and if it be found that they did
not, whether the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco
Sales, and Feliciano Yñigo to present the persons named in the writ before the court on
December 2, 1918. The order was dated November 4, 1918. The respondents were thus
given ample time, practically one month, to comply with the writ. As far as the record
discloses, the Mayor of the city of Manila waited until the 21st of November before
sending a telegram to the provincial governor of Davao. According to the response of the
attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be permitted to do so
because of having contracted debts. The half-hearted effort naturally resulted in none of
the parties in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open:
(1) They could have produced the bodies of the persons according to the command of
the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity
those persons could not safely be brought before the court; or (3) they could have
presented affidavits to show that the parties in question or their attorney waived the right
to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of
the persons in whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be present by
those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by
the signers, were appended to the return. That through ordinary diligence a considerable
number of the women, at least sixty, could have been brought back to Manila is
demonstrated to be found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing by the
respondents.
The court, at the time the return to its first order was made, would have been warranted
summarily in finding the respondents guilty of contempt of court, and in sending them to
jail until they obeyed the order. Their excuses for the non-production of the persons were
far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all
tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example,
in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court,
said: "We thought that, having brought about that state of things by his own illegal act, he
must take the consequences; and we said that he was bound to use every effort to get
the child back; that he must do much more than write letters for the purpose; that he
must advertise in America, and even if necessary himself go after the child, and do
everything that mortal man could do in the matter; and that the court would only accept
clear proof of an absolute impossibility by way of excuse." In other words, the return did
not show that every possible effort to produce the women was made by the respondents.
That the court forebore at this time to take drastic action was because it did not wish to
see presented to the public gaze the spectacle of a clash between executive officials and
the judiciary, and because it desired to give the respondents another chance to
demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up
the women, and a steamer with free transportation to Manila was provided. While
charges and counter-charges in such a bitterly contested case are to be expected, and
while a critical reading of the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial compliance with it. Our finding
to this effect may be influenced somewhat by our sincere desire to see this unhappy
incident finally closed. If any wrong is now being perpetrated in Davao, it should receive
an executive investigation. If any particular individual is still restrained of her liberty, it
can be made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with
it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez, and Fernando Ordax, members of the police force of the city of Manila,
Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, an hacendero of
Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and
not on the vindictive principle. Only occasionally should the court invoke its inherent
power in order to retain that respect without which the administration of justice must falter
or fail. Nevertheless when one is commanded to produce a certain person and does not
do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge
the respondent to be guilty of contempt, and must order him either imprisoned or fined.
An officer's failure to produce the body of a person in obedience to a writ of habeas
corpus when he has power to do so, is a contempt committed in the face of the court.
(Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible exception of
the first named, has flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely,
it is nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to
have been drawn into the case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to have done no more than
to fulfill his duty as the legal representative of the city government. Finding him innocent
of any disrespect to the court, his counter-motion to strike from the record the
memorandum of attorney for the petitioners, which brings him into this undesirable
position, must be granted. When all is said and done, as far as this record discloses, the
official who was primarily responsible for the unlawful deportation, who ordered the
police to accomplish the same, who made arrangements for the steamers and the
constabulary, who conducted the negotiations with the Bureau of Labor, and who later,
as the head of the city government, had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His
intention to suppress the social evil was commendable. His methods were unlawful. His
regard for the writ of habeas corpus issued by the court was only tardily and reluctantly
acknowledged.
correct finding. The failure of respondent Lukban to obey the first mandate of the court
tended to belittle and embarrass the administration of justice to such an extent that his
later activity may be considered only as extenuating his conduct. A nominal fine will at
once command such respect without being unduly oppressive — such an amount is
P100.
In resume — as before stated, no further action on the writ of habeas corpus is
necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are
found not to be in contempt of court. Respondent Lukban is found in contempt of court
and shall pay into the office of the clerk of the Supreme Court within five days the sum of
one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the
record the Replica al Memorandum de los Recurridos of January 25, 1919, is granted.
Costs shall be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the
hope that this decision may serve to bulwark the fortifications of an orderly government
of laws and to protect individual liberty from illegal encroachment.

It would be possible to turn to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof
to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each,
which would reach to many thousands of pesos, and in addition to deal with him as for a
contempt. Some members of the court are inclined to this stern view. It would also be
possible to find that since respondent Lukban did comply substantially with the second
order of the court, he has purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two extremes appears to lie the