SPECIAL WRITS

Rule 102
Habeas Corpus

Restricted custody is beyond the ambit of habeas corpus

1.Ampatuan vs. Macaraig, G.R. No. 182497, June 29, 2010
NURHIDA JUHURI AMPATUAN, G.R. No. 182497

Petitioner,

Present:

- versus -

CORONA, C.J.,

Chairperson,

VELASCO, JR.,

LEONARDO-DE CASTRO,

JUDGE VIRGILIO V. MACARAIG, DEL CASTILLO, and

REGIONAL TRIAL COURT,
MANILA, BRANCH 37, DIRECTOR PEREZ, JJ.
GENERAL AVELINO RAZON, JR.,
DIRECTOR GEARY BARIAS,
PSSUPT. CO YEE M. CO, JR. and
POLICE CHIEF INSPECTOR
AGAPITO QUIMSON,

Respondents.

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 Promulgated:

June 29, 2010

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

DECISION

PEREZ, J.:

Before this Court is a Petition for Certiorari under Rule 651 of the Rules of Court
assailing the Order dated 25 April 2008 of the Regional Trial Court (RTC) of Manila, Branch 37,
in Special Proceeding No. 08-119132 which denied the petition for Habeas Corpus filed by
herein Petitioner Nurhida Juhuri Ampatuan in behalf of her husband Police Officer 1 Basser B.
Ampatuan2 (PO1 Ampatuan).

Petitioner alleged in her petition that her husband PO1 Ampatuan was assigned at Sultan
Kudarat Municipal Police Station. On 14 April 2008, he was asked by his Chief of Police to
report to the Provincial Director of Shariff Kabunsuan, Superintendent Esmael Pua Ali (Supt.
Ali). The latter brought PO1 Ampatuan to Superintendent Piang Adam, Provincial Director of

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the Philippine National Police (PNP) Maguindanao. PO1 Ampatuan was directed to stay at the
Police Provincial Office of Maguindanao without being informed of the cause of his restraint.
The next day, 15 April 2008, PO1 Ampatuan was brought to the General Santos City Airport and
was made to board a Philippine Airlines plane bound for Manila. Upon landing at the Manila
Domestic Airport, PO1 Ampatuan was turned over to policemen of Manila and brought to
Manila Mayor Alfredo Lim by Police Director Geary Barias and General Roberto Rosales. A
press briefing was then conducted where it was announced that PO1 Ampatuan was arrested for
the killing of two Commission on Elections (COMELEC) Officials. He was then detained at the
Police Jail in United Nations Avenue, Manila. Thereafter, PO1 Ampatuan was brought to inquest
Prosecutor Renato Gonzaga of the Office of the City Prosecutor of Manila due to the alleged
murder of Atty. Alioden D. Dalaig, head of the Law Department of the COMELEC. On 20 April
2008, PO1 Ampatuan was turned-over to the Regional Headquarters Support Group in Camp
Bagong Diwa, Taguig City.3

Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor Nelson Salva
ordered the release for further investigation of PO1 Ampatuan.4 The Order was approved by the
City Prosecutor of Manila. But Police Senior Superintendent Co Yee Co, Jr., and Police Chief
Inspector Agapito Quimson refused to release PO1 Ampatuan.

This prompted Petitioner to file the petition for writ of habeas corpus in the RTC of
Manila, Branch 37.5

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 Private respondents had another version of the antecedent facts. They narrated that at
around 7:08 oclock in the evening of 10 November 2007, a sixty-four-year-old man, later
identified as Atty. Alioden D. Dalaig, Head of the COMELEC Legal Department, was killed at
the corner of M. H. Del Pilar and Pedro Gil Streets, Ermita, Manila. Investigation conducted by
the Manila Police District (MPD) Homicide Section yielded the identity of the male perpetrator
as PO1 Ampatuan. Consequently, PO1 Ampatuan was commanded to the MPD District Director
for proper disposition. Likewise, inquest proceedings were conducted by the Manila Prosecutors
Office.

On 18 April 2008, Police Senior Superintendent Atty. Clarence V. Guinto, rendered his
Pre-Charge Evaluation Report against PO1 Ampatuan, finding probable cause to charge PO1
Ampatuan with Grave Misconduct (Murder) and recommending that said PO1 Ampatuan be
subjected to summary hearing.

On even date, a charge sheet for Grave Misconduct was executed against PO1 Ampatuan,
the accusatory portion of which reads:

CHARGE SHEET

THE UNDERSIGNED NOMINAL COMPLAINANT hereby charges

above-named respondent of the administrative offense of Grave Misconduct
(murder) pursuant to Section 52 of R.A. 85516 in relation to NAPOLCOM
Memorandum Circular 93-024, committed as follows:

That on or about 7:08 in the evening of November 10, 2007, in M.H. Del
Pilar and Pedro Gil St., Ermita, Manila, above-named respondent while being an
active member of the PNP and within the jurisdiction of this office, armed with a
cal .45 pistol, with intent to kill, did then and there willfully, unlawfully and
feloniously, shot Atty. Alioden D. Dalaig, Jr., COMELEC official on the different

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 parts of his body, thereby inflicting upon the latter mortal gunshot wounds which
directly cause (sic) his death.

Acts contrary to the existing PNP Laws rules and Regulations.7

Also, through a Memorandum dated 18 April 2008, Police Director General Avelino I.
Razon, Jr. directed the Regional Director of the National Capital Regional Police Office
(NCRPO) to place PO1 Ampatuan under restrictive custody, thus:

1. Reference: Memo from that Office dated April 15, 2008 re

Arrest of PO1 Busser Ampatuan, suspect in the killing of Atty. Alioden
Dalaig and Atty. Wynee Asdala, both COMELEC Legal Officers.

2. This pertains to the power of the Chief, PNP embodied in

Section 52 of RA 8551, to place police personnel under restrictive
custody during the pendency of a grave administrative case filed
against him or even after the filing of a criminal complaint, grave in
nature, against such police personnel.

3. In this connection, you are hereby directed to place PO1

Busser Ampatuan, suspect in the killing of Atty. Alioden Dalaig and
Atty. Wynee Asdala, both COMELEC Legal Officers, under your
restrictive custody.

4. For strict compliance.8

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 On 19 April 2008, through a Memorandum Request dated 18 April 2008, respondent
Police Director Geary L. Barias requested for the creation of the Summary Hearing Board to hear
the case of PO1 Ampatuan.9

On 20 April 2008, Special Order No. 921 was issued by Police Director Edgardo E.
Acua, placing PO1 Ampatuan under restrictive custody of the Regional Director, NCRPO,
effective 19 April 2008. Said Special Order No. 921, reads:

Restrictive Custody

PO1 Basser B. Ampatuan 128677, is placed under restrictive custody

of the Regional Director, NCRPO effective April 19, 2008. (Reference:
Memorandum from CPNP dated 18 April 2008).

BY COMMAND OF POLICE DIRECTOR GENERAL RAZON:10

Meanwhile, on 21 April 2008, the City Prosecutor of Manila recommended that the case
against PO1 Ampatuan be set for further investigation and that the latter be released from
custody unless he is being held for other charges/legal grounds.11

Armed with the 21 April 2008 recommendation of the Manila Citys Prosecution
Office, petitioner, who is the wife of PO1 Ampatuan, filed a Petition for the Issuance of a
Writ of Habeas Corpus before the RTC of Manila on 22 April 2008. The petition was
docketed as Special Proceeding No. 08-119132 and was raffled to Branch 37.

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 On 24 April 2008, finding the petition to be sufficient in form and substance, respondent
Judge Virgilio V. Macaraig ordered the issuance of a writ of habeas corpus commanding therein
respondents to produce the body of PO1 Ampatuan and directing said respondents to show cause
why they are withholding or restraining the liberty of PO1 Ampatuan.12

On 25 April 2008, the RTC resolved the Petition in its Order which reads:

Essentially, counsels for petitioner insists that PO1 Basser Ampatuan is

being illegally detained by the respondents despite the order of release of Chief
Inquest Prosecutor Nelson Salva dated April 21, 2008. They further claim that as
of April 23, 2008, no administrative case was filed against PO1 Ampatuan.

Respondents, while admitting that to date no criminal case was filed

against PO1 Ampatuan, assert that the latter is under restrictive custody since he
is facing an administrative case for grave misconduct. They submitted to this
Court the Pre-charge Evaluation Report and Charge Sheet. Further, in support of
their position, respondents cited the case of SPO2 Manalo, et al. v. Hon.
Calderon, G.R. No. 178920 claiming that habeas corpus will not lie for a PNP
personnel under restrictive custody. They claim that this is authorized under
Section 52, Par. 4 of R.A. 8551 authorizing the Chief of PNP to place the PNP
personnel under restrictive custody during the pendency of administrative case for
grave misconduct.

Petitioner countered that the administrative case filed against PO1

Ampatuan was ante-dated to make it appear that there was such a case filed before
April 23, 2008.

The function of habeas corpus is to determine the legality of ones

detention, meaning, if there is sufficient cause for deprivation or confinement and
if there is none to discharge him at once. For habeas corpus to issue, the restraint
of liberty must be in the nature of illegal and involuntary deprivation of freedom
which must be actual and effective, not nominal or moral.

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 Granting arguendo that the administrative case was ante-dated, the Court
cannot simply ignore the filing of an administrative case filed against PO1
Ampatuan. It cannot be denied that the PNP has its own administrative
disciplinary mechanism and as clearly pointed out by the respondents, the Chief
PNP is authorized to place PO1 Ampatuan under restrictive custody pursuant to
Section 52, Par. 4 of R.A. 8551.

The filing of the administrative case against PO1 Ampatuan is a

process done by the PNP and this Court has no authority to order the release
of the subject police officer.
Lastly, anent the contention of the petitioner that the letter resignation of
PO1 Ampatuan has rendered the administrative case moot and academic, the same
could not be accepted by this Court. It must be stressed that the resignation has
not been acted (sic) by the appropriate police officials of the PNP, and that the
administrative case was filed while PO1 Ampatuan is still in the active status of
the PNP.

WHEREFORE, premises considered, the petition for habeas corpus is

hereby DISMISSED.13

Distressed, petitioner is now before this Court via a Petition for Certiorari under Rule 65
of the Rules of Court to question the validity of the RTC Order dated 25 April 2008. The issues
are:

I. THE RESPONDENT COURT GRAVELY ABUSED ITS

DISCRETION WHEN IT FAILED TO CONSIDER THAT THE
ARREST AND DETENTION OF PO1 BASSER B. AMPATUAN WAS
MADE WITHOUT ANY WARRANT AND THEREFORE, ILLEGAL;

II. THE RESPONDENT COURT GRAVELY ABUSED ITS

DISCRETION WHEN IT CONCEDED THE AUTHORITY OF
RESPONDENT AVELINO RAZON, JR. UNDER SEC. 52, PAR. 4, R.A.
8551 TO PLACE AMPATUAN UNDER RESTRICTIVE CUSTODY
FOR ADMINISTRATIVE PROCEEDINGS;

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 III. THE RESPONDENT COURT GRAVELY ABUSED ITS
DISCRETION WHEN IT SHIRKED FROM ITS JUDICIAL DUTY TO
ORDER THE RELEASE OF PO1 AMPATUAN FROM THE CUSTODY
OF RESPONDENTS MAMANG PULIS.14

Essentially, a writ of habeas corpus applies to all cases of illegal confinement or

detention by which any person is deprived of his liberty.15

Rule 102 of the 1997 Rules of Court sets forth the procedure to be followed in the
issuance of the writ. The Rule provides:

RULE 102

HABEAS CORPUS

SECTION 1. To what habeas corpus extends. Except as otherwise

expressly provided by law, the writ of habeas corpus shall extend to all cases of
illegal confinement or detention by which any person is deprived of his liberty, or
by which the rightful custody of any person is withheld from the person entitled
thereto.

SEC 2. Who may grant the writ. The writ of habeas corpus may be
granted by the Supreme Court, or any member thereof, on any day and at any
time, or by the Court of Appeals or any member thereof in the instances
authorized by law, and if so granted it shall be enforceable anywhere in the
Philippines, and may be made returnable before the court or any member thereof,
or before a Court of First Instance, or any judge thereof for hearing and decision
on the merits. It may also be granted by a Court of First Instance, or a judge
thereof, on any day and at any time, and returnable before himself, enforceable
only within his judicial district.

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 xxxx

SEC. 4. When writ not allowed or discharge authorized. If it appears that

the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order of a
court of record, and that the court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by
reason of any informality or defect in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the discharge of a person charged with or
convicted of an offense in the Philippines, or of a person suffering imprisonment
under lawful judgment.

The objective of the writ is to determine whether the confinement or detention is valid or
lawful. If it is, the writ cannot be issued. What is to be inquired into is the legality of a person's
detention as of, at the earliest, the filing of the application for the writ of habeas corpus, for even
if the detention is at its inception illegal, it may, by reason of some supervening events, such as
the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of
the application.16

Plainly stated, the writ obtains immediate relief for those who have been illegally
confined or imprisoned without sufficient cause. The writ, however, should not be issued
when the custody over the person is by virtue of a judicial process or a valid judgment.17

The most basic criterion for the issuance of the writ, therefore, is that the individual
seeking such relief is illegally deprived of his freedom of movement or placed under some form

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of illegal restraint. If an individuals liberty is restrained via some legal process, the writ of
habeas corpus is unavailing.18 Fundamentally, in order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of
freedom of action.19

In general, the purpose of the writ of habeas corpus is to determine whether or not a
particular person is legally held. A prime specification of an application for a writ of habeas
corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of
liberty. 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. 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.20

In passing upon a petition for habeas corpus, a court or judge must first inquire into
whether the petitioner is being restrained of his liberty. If he is not, the writ will be refused.
Inquiry into the cause of detention will proceed only where such restraint exists. If the alleged
cause is thereafter found to be unlawful, then the writ should be granted and the petitioner
discharged. Needless to state, if otherwise, again the writ will be refused.21

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 While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere
perfunctory operation on the filing of the petition. Judicial discretion is called for in its issuance
and it must be clear to the judge to whom the petition is presented that, prima facie, the petitioner
is entitled to the writ. It is only if the court is satisfied that a person is being unlawfully restrained
of his liberty will the petition for habeas corpus be granted. If the respondents are not detaining
or restraining the applicant or the person in whose behalf the petition is filed, the petition should
be dismissed.22

Petitioner contends that when PO1 Ampatuan was placed under the custody of
respondents on 20 April 2008, there was yet no administrative case filed against him. When the
release order of Chief Inquest Prosecutor Nelson Salva was served upon respondents on 21 April
2008, there was still no administrative case filed against PO1 Ampatuan. She also argues that the
arrest on 14 April 2008 of PO1 Ampatuan in Shariff Kabunsuan was illegal because there was no
warrant of arrest issued by any judicial authority against him.

On the other hand, respondents, in their Comment23 filed by the Office of the Solicitor
General, argue that the trial court correctly denied the subject petition. Respondents maintain that
while the Office of the City Prosecutor of Manila had recommended that PO1 Ampatuan be
released from custody, said recommendation was made only insofar as the criminal action for
murder that was filed with the prosecution office is concerned and is without prejudice to other
legal grounds for which he may be held under custody. In the instant case, PO1 Ampatuan is also
facing administrative charges for Grave Misconduct. They cited the case of Manalo v.
Calderon,24 where this Court held that a petition for habeas corpus will be given due course
only if it shows that petitioner is being detained or restrained of his liberty unlawfully, but a

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restrictive custody and monitoring of movements or whereabouts of police officers under
investigation by their superiors is not a form of illegal detention or restraint of liberty.25

The Solicitor General is correct.

In this case, PO1 Ampatuan has been placed under Restrictive Custody. Republic Act No.
6975 (also known as the Department of Interior and Local Government Act of 1990), as
amended by Republic Act No. 8551 (also known as the Philippine National Police Reform and
Reorganization Act of 1998), clearly provides that members of the police force are subject to
the administrative disciplinary machinery of the PNP. Section 41(b) of the said law
enumerates the disciplinary actions, including restrictive custody that may be imposed by
duly designated supervisors and equivalent officers of the PNP as a matter of internal
discipline. The pertinent provision of Republic Act No. 8551 reads:

Sec. 52 x x x.

xxxx

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 4. The Chief of the PNP shall have the power to impose the disciplinary
punishment of dismissal from the service; suspension or forfeiture of salary; or
any combination thereof for a period not exceeding one hundred eighty (180)
days. Provided, further, That the Chief of the PNP shall have the authority to
place police personnel under restrictive custody during the pendency of a
grave administrative case filed against him or even after the filing of a
criminal complaint, grave in nature, against such police personnel. [Emphasis
ours].

Given that PO1 Ampatuan has been placed under restrictive custody, such constitutes a
valid argument for his continued detention. This Court has held that a restrictive custody and
monitoring of movements or whereabouts of police officers under investigation by their
superiors is not a form of illegal detention or restraint of liberty.26

Restrictive custody is, at best, nominal restraint which is beyond the ambit of habeas
corpus. It is neither actual nor effective restraint that would call for the grant of the remedy
prayed for. It is a permissible precautionary measure to assure the PNP authorities that the police
officers concerned are always accounted for.27

Since the basis of PO1 Ampatuans restrictive custody is the administrative case filed
against him, his remedy is within such administrative process.

We likewise note that PO1 Ampatuan has been under restrictive custody since 19 April
2008. To date, the administrative case against him should have already been resolved and the
issue of his restrictive custody should have been rendered moot and academic, in accordance

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with Section 55 of Republic Act No. 8551, which provides:

SEC. 55. Section 47 of Republic Act No. 6975 is hereby amended to read as
follows:

Sec. 47. Preventive Suspension Pending Criminal Case. Upon the filing of
a complaint or information sufficient in form and substance against a member of
the PNP for grave felonies where the penalty imposed by law is six (6) years and
one (1) day or more, the court shall immediately suspend the accused from office
for a period not exceeding ninety (90) days from arraignment: Provided, however,
That if it can be shown by evidence that the accused is harassing the complainant
and/or witnesses, the court may order the preventive suspension of the accused
PNP member even if the charge is punishable by a penalty lower than six (6)
years and one (1) day: Provided, further, That the preventive suspension shall not
be more than ninety (90) days except if the delay in the disposition of the case is
due to the fault, negligence or petitions of the respondent: Provided, finally, That
such preventive suspension may be sooner lifted by the court in the exigency of
the service upon recommendation of the Chief, PNP. Such case shall be subject
to continuous trial and shall be terminated within ninety (90) days from
arraignment of the accused. (Emphasis supplied.)

Having conceded that there is no grave abuse of discretion on the part of the trial court,
we have to dismiss the petition.

In sum, petitioner is unable to discharge the burden of showing that she is entitled to the
issuance of the writ prayed for in behalf of her husband, PO1 Ampatuan. The petition fails to
show on its face that the latter is unlawfully deprived of his liberty guaranteed and enshrined in
the Constitution.

WHEREFORE, premises considered, the instant petition is DISMISSED for lack of

merit.

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 Costs against petitioner.

SO ORDERED.

Effect of filing of charges in court

2.Barredo vs. Vinarao, G.R. No. 168728, August 2, 2007

G.R. No. 168728 August 2, 2007

SAMUEL BARREDO y GOLANI, Petitioner,

vs.
HON. VICENTE VINARAO, Director, Bureau of Corrections, Respondent.

DECISION

CORONA, J.:

This is a petition for the issuance of a writ of habeas corpus. Petitioner Samuel
Barredo y Golani prays for his release from the maximum security compound of
the New Bilibid Prison in Muntinlupa City on the ground that he has already
served the sentence imposed on him in Criminal Case Nos. Q-92-38559 and Q-92-
38560.

Criminal Case No. Q-92-385591 was for carnapping2 while Criminal Case No. Q-92-
38560 was for illegal possession of firearms.3 Both cases were filed in the Regional
Trial Court (RTC) of Quezon City, Branch 103.4

The cases were tried jointly. After trial, the court rendered a joint decision finding
petitioner guilty of both charges. Relevant parts of the dispositive portion read:

ACCORDINGLY, judgment is hereby rendered in Q-92-38559 finding Samuel Barredo,5

xxx GUILTY beyond reasonable doubt xxx of the crime of Carnapping aggravated and
qualified by the frustrated killing of Ciriaco Rosales and [he is] hereby sentenced to
undergo an imprisonment term of THIRTY (30) YEARS;

xxx xxx xxx

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In Q-92-38560, Samuel Barredo is hereby found GUILTY as principal beyond
reasonable doubt of the crime of violation of P.D. 1866 and he is hereby sentenced to
an imprisonment term of EIGHTEEN (18) YEARS and ONE (1) DAY of Reclusion
Temporal.

xxx xxx xxx

SO ORDERED.6

No appeal was made, hence, the decision became final and executory.

Petitioner was committed to the custody of the Quezon City Jail (as detention prisoner)
on March 15, 1993.7 After conviction, he was transferred to and confined at the
maximum security compound of the New Bilibid Prison in Muntinlupa City on July 23,
19948 where he is now still detained.

According to petitioner, as of August 2, 2004, he already served a total of 18 years. He

claims that, on October 9, 2001, the Board of Pardons and Parole passed a resolution
recommending the commutation of his sentence to a period of from 15 to 20 years. He
further points out that, based on the Bureau of Corrections’ revised computation table
for determining the time to be credited prisoners for good conduct while serving
sentence, he should only serve 14 years, 9 months and 18 days. Thus, this petition.

Is petitioner entitled to the writ of habeas corpus? No.

Writ of Habeas Corpus Will Not Issue If Detention Is By Virtue Of Valid Judgment

The writ of habeas corpus applies to all cases of illegal confinement, detention or
deprivation of liberty.9 It was devised as a speedy and effective remedy to relieve
persons from unlawful restraint.10 More specifically, it is a remedy to obtain immediate
relief for those who may have been illegally confined or imprisoned without sufficient
cause and thus deliver them from unlawful custody.11 It is therefore a writ of inquiry
intended to test the circumstances under which a person is detained.12

The writ may not be availed of when the person in custody is under a judicial
process or by virtue of a valid judgment.13 However, the writ may be allowed as a
post-conviction remedy when the proceedings leading to the conviction were
attended by any of the following exceptional circumstances:

(1) there was a deprivation of a constitutional right resulting in the restraint of a

person;

(2) the court had no jurisdiction to impose the sentence or

(3) the imposed penalty was excessive, thus voiding the sentence as to such
excess.14

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The rule is that if a person alleged to be restrained of his liberty is in custody of
an officer under process issued by a court or judge or by virtue of a judgment or
order of a court of record the writ of habeas corpus will not be allowed. 15 Thus,
Section 4, Rule 102 of the Rules of Court provides:

Sec. 4. When writ not allowed or discharge authorized. – If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule
be held to authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment under lawful
judgment. (emphasis supplied)

Petitioner was detained pursuant to a final judgment of the Quezon City RTC
convicting him for the crimes of carnapping and illegal possession of firearms.
He is therefore not entitled to the writ of habeas corpus.

Sentence is Void Insofar As It Failed to Impose an Indeterminate Sentence

As correctly pointed out by the Solicitor General, however, the trial court erred in
imposing a straight penalty of imprisonment for 30 years in the carnapping case. The
sentence imposed by the trial court deprived petitioner of the benefits of the
Indeterminate Sentence Law.16 Hence, it was void insofar as it failed to impose an
indeterminate sentence.

Since the crime was committed by means of violence against or intimidation of persons,
the imposable penalty under the Anti-Carnapping Act of 1972 was imprisonment for not
less than 17 years and 4 months and not more than 30 years. 17 Furthermore, pursuant
to the Indeterminate Sentence Law, the court should have imposed an indeterminate
sentence with a maximum term not exceeding the maximum fixed by the special penal
law and a minimum term not less than the minimum term prescribed by the same law. 18
Therefore, the proper imposable penalty is imprisonment not for 30 years but for an
indeterminate sentence of 17 years and 4 months as minimum to 30 years as
maximum.19

Reduction of Penalty Under Amendatory Law Should be Applied Retroactively

Petitioner is likewise entitled to a reduction of the penalty imposed upon him in the
illegal possession of firearms case in view of the passage of RA 8294. The law reduced
the penalty for simple illegal possession of firearms to prision correccional in its
maximum period and a fine of not less than P15,000. Being favorable to petitioner, RA
8294 should be applied retroactively to benefit him.20 Further applying the Indeterminate

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Sentence Law, the proper imposable penalty is imprisonment for 4 years, 2 months and
1 day as minimum to 6 years as maximum.21

Petitioner Has Not Yet Served The Penalties Imposed on Him

Petitioner has to serve the penalties imposed on him successively in the order of their
severity.22 Hence, he has to first serve the more severe penalty, i.e., that imposed in the
carnapping case: imprisonment for 17 years and 4 months as minimum to 30 years as
maximum. Only after he has served this will he commence serving the less severe
penalty imposed in the illegal possession of firearms case: imprisonment for 4 years, 2
months and 1 day as minimum to 6 years as maximum.23

Per the certification issued by the Bureau of Corrections,24 as of April 3, 2007, petitioner
has served a total of 18 years, 4 months and 26 days, inclusive of his good conduct
time allowance and preventive imprisonment. Thus, while he has already served the
minimum penalty in the carnapping case, he has not yet served the minimum penalty in
the illegal possession of firearms case. Consequently, petitioner is not entitled to the
issuance of a writ of habeas corpus. Neither is he eligible for parole because only
prisoners who have served the minimum penalty imposed on them may be released on
parole on such terms and conditions as may be prescribed by the Board of Pardons and
Parole.25

Petitioner’s claim that the Board of Pardons and Parole passed a resolution
recommending the commutation of his sentence does not justify the issuance of the writ
of habeas corpus. Commutation of sentence is a prerogative of the Chief Executive. 26
Hence, even if petitioner’s claim were true, the recommendation of the Bureau of
Pardons and Parole was just that, a mere recommendation. Until and unless approved
by the President, there is no commutation to speak of.

Accordingly, the petition is hereby DENIED.

3.Kiani vs. Bureau of Immigration and Deportation, G.R. No. 160922, February 27, 2006

JEANY-VI G. KIANI, G.R. No. 160922

Petitioner,

Present:

PANGANIBAN, C.J., Chairperson,

- versus - YNARES-SANTIAGO,

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 AUSTRIA-MARTINEZ,

CALLEJO, SR., and

CHICO-NAZARIO, JJ.

THE BUREAU OF IMMIGRATION

and DEPORTATION (BID);

EDGARDO CABRERA, ELISEO Promulgated:

EXCONDE and JOSE VALE, JR.,

Respondents. February 27, 2006

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

DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari for the nullification of the decision28 of the
Court of Appeals (CA) in CA-G.R. No. 74484, dismissing the appeal of Jeany-Vi G. Kiani,
which assailed the Order of the Regional Trial Court (RTC) of Manila, Branch 8, in Special
Proceedings (Sp. Proc.) No. 02-103935, dismissing her Petition for Habeas Corpus.

Page 20 of 265
 On June 19, 2002, Javed Kiani, a British national but a Pakistani by birth29 reported to
the Rodriguez, Rizal Police Station that his friends, Iqbal

Page 21 of 265
Singh and Balbir Singh, had been forcibly taken by four (4) armed men from their residence at
Balita, Rodriguez, Rizal.30 A couple of days later, then Commissioner Andrea D. Domingo of
the Bureau of Immigration and Deportation (BID) issued Mission Order No. ADD-02-203 based
on Executive Order No. 287 of former President Joseph Estrada. In said Order, appropriate
officers of the Bureau were directed to conduct verification/validation of the admission
status and activities of Javed Kiani, and, if found to have violated the Philippine
Immigration Act of 1940, as amended, to immediately place him under arrest.31 Per records
of the BID, Javed Kiani was married to a Filipina, Jeany-Vi Kiani, on July 27, 1988. He was
admitted as an immigrant and was issued a permanent resident visa on March 17, 1993.32

A week later, on June 27, 2002, Javed Kiani was arrested at Felicidad Village,
Montalban, Rizal. The arresting officers, Eduardo Cabrera, Eliseo Exconde and Jose Vale, Jr.,
operatives of the Bureau of Intelligence of the BID, relied on information from Iqbal and Balbir
Singh, who pointed to Javed Kiani as the one who had furnished them with fake Alien Certificate
Registration (ACR) and Immigrant Certificate Registration (ICR). Apparently, the forms used
were not official BID forms.33

On July 1, 2002, the BID Prosecutor filed a Charge Sheet34 against Javed Kiani alias
Ahmad Singh before the Board of Special Inquiry (BSI) for violation of the Philippine
Immigration Act of 1940, as amended, particularly Section 37(a)(7) and Section 45 thereof.
The case was docketed as D.C. No. ADD-02-080. The Charge Sheet reads:

Page 22 of 265
 Records show that the above-named subject was arrested on June 27, 2002
by Bureaus Intelligence operatives at Felicidad Village, Montalban, Rizal,
pursuant to Mission Order No. ADD-02-203, dated June 20, 2002.

Page 23 of 265
 Records also show that subject national was positively identified by Indian
nationals Balbir Singh and Iqbal Singh when they were arrested by the same
operatives on June 18, 2002 as the person who gave them spurious immigration
documents and as their protector evidenced by copies of the ACRs and ICRs of
Balbir and Iqbal Singh, which were certified by Mr. Reynaldo Joson as fake.
Additionally, Mr. Joson certified that the forms used in the forgery/falsification
are not official forms of this Bureau.

Contrary to law.35

On the same day, July 1, 2002, the Board of Commissioners (BOC) conducted a
summary proceeding and issued a Summary Deportation Order revoking the visa issued to Javed
Kiani. The Order reads in part:

Considering the seriousness of the charge/s and the evidence in support

thereof, respondent, whose Temporary Residence Visa is hereby ordered
cancelled and revoked, is hereby ordered summarily deported to his country of
origin, subject to PNP, Court and NBI clearances and payment of an
administrative fine in the amount of P50,000.00.36

The next day, July 2, 2002, Javed Kianis wife, Jeany-Vi, filed a Petition for a Writ of
Habeas Corpus37 for and in behalf of her husband before the RTC of Manila, naming the BID
and its intelligence officers as respondents. She prayed that the court issue a writ of habeas
corpus directing respondents to produce the person of Javed Kiani before it in the soonest time
possible and to show the cause or legal justification for the latters detention and imprisonment, if
any; and for such other or further reliefs as may be deemed just and equitable under the premises.
She further alleged that her husband had intervened in the arrest of Iqbal and Balbir Singh, and

Page 24 of 265
that the arresting officers resented such intervention. She insisted that the arrest and detention of
her husband were bereft of factual and legal basis, since at the time, no deportation order had yet
been issued against him. Citing the ruling of this Court in Board of Commissioners v. Dela
Rosa,38 she alleged that the Mission Order issued by the Immigration Commissioner was void.
The case was docketed as Sp. Proc. No. 02-103935.39 Javed Kiani had been detained at the BID
Detention Center, Camp Bagong Diwa, Taguig, Metro Manila since July 3, 2002.40

On July 18, 2002, the RTC issued an Order41 granting bail for Javed Kiani on a bond of
P50,000.00, and ordered respondent BID Intelligence Officers to file their return on the writ. The
respondents complied, and alleged in their return that Javed Kiani had already been charged
before the BOC and ordered deported; hence, the petition had become moot and academic. They
refused to release Kiani although the bond had already been posted.42 Instead, the respondents,
through the Office of the Solicitor General (OSG), filed an Omnibus Motion43 for the
reconsideration of the Order on the following grounds: (1) under Section 37(9)(e) of
Commonwealth Act 613, as amended, it is the Commissioner of Immigration, and not the court,
who has authority to grant bail in a deportation proceeding; (2) the court has no authority to grant
the petition considering that Javed Kiani was lawfully charged with violation of the Philippine
Immigration Act of 1940, as amended, before the BSI; and (3) the BOC has subsequently issued
a Summary Deportation Order.

Page 25 of 265
 On October 28, 2002, the RTC issued an Order44 granting the motion and setting
aside its July 18, 2002 Order. In dismissing the petition, it ruled that Jeany-Vi was barred
from questioning the legality of the arrest and detention of her husband, following the filing
of the Charge Sheet with the BSI; as such, there was no justification for the issuance of a writ of
habeas corpus. It declared that, as gleaned from the return of the writ filed by the respondents,
Javed Kiani was lawfully charged with violation of the Philippine Immigration Act of 1940, as
amended; hence, the Summary Deportation Order issued by the BOC was valid.

The RTC also ruled that the proper remedy of Javed Kiani from the Summary
Deportation Order of the BOC was to file a petition for review with the CA under Rule 43 of the
Rules of Court (and not a petition for a writ of habeas corpus before it), as it had no jurisdiction
to take cognizance of and reverse the Summary Deportation Order issued by the BOC.

Jeany-Vi appealed the RTCs Order of July 18, 2002 to the CA, in which she raised the
following issues:

A. WHETHER OR NOT THE ARREST OF JAVED KIANI ON 27 JUNE

2002 AND HIS SUBSEQUENT DETENTION BY THE RESPONDENTS-
APPELLEES WERE VALID AND/OR LEGAL.

B. WHETHER OR NOT THE SUPPOSED ISSUANCE OF A SUMMARY

DEPORTATION ORDER AGAINST JAVED KIANI HAS THE EFFECT
OF LEGALIZING AND/OR VALIDATING HIS CONTINUED
DETENTION, THEREBY RENDERING THE HABEAS CORPUS
PETITION DISMISSIBLE.45

Page 26 of 265
 On May 8, 2003 the CA rendered judgment dismissing the appeal.46 The CA declared
that a Petition for a Writ of Habeas Corpus can no longer be allowed since the party sought to be
released had been charged before the BSI. Assuming that Javed Kianis detention or his arrest
was illegal, any incipient infirmity thereon was cured by the filing of the Charge Sheet against
him. The appellate court cited the ruling of this Court in Velasco v. Court of Appeals.47 It
likewise affirmed the ruling of the RTC that it had no jurisdiction to take cognizance of and
reverse the Summary Deportation Order of the BOC, that the remedy of petitioner from the
Summary Deportation Order of the BOC was to file a petition for review with the CA under Rule
43 of the 1997 Rules of Civil Procedure, and that her failure to do so rendered said Order final
and executory.

Jeany-Vi received a copy of the CA Decision on May 22, 2003, and filed a Motion for
Reconsideration thereof on June 6, 2003. She alleged that since the Summary Deportation Order
of the BOC had not yet been promulgated by the BSI, the period to appeal was yet to commence,
and as such, said order could not become final and executory. Even assuming that such order had
become final and executory, her husband was entitled to a writ of habeas corpus since he was
deprived of his right to due process.

On November 21, 2003, the appellate court resolved to deny the motion.48 Jeany-Vi
received a copy of the Resolution on December 1, 2003.

On January 15, 2004, petitioner filed the instant petition for review on certiorari under
Rule 45 of the Revised Rules of Court, alleging that:

Page 27 of 265
 A. THE COURT OF APPEALS ERRED IN FAILING TO NULLIFY AND
TO DECLARE AS ILLEGAL THE ACTUAL ARREST AND
SUBSEQUENT DETENTION OF JAVED KIANI.

B. THE COURT OF APPEALS ERRED IN FAILING TO DECLARE AS

NULL AND VOID AB INITIO THE PUTATIVE SUMMARY
DEPORTATION ORDER AGAINST JAVED KIANI.

C. THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE

SUMMARY DEPORTATION ORDER AGAINST JAVED KIANI HAS
ALREADY BECOME FINAL AND EXECUTORY.

D. THE COURT OF APPEALS ERRED IN CONCLUDING THAT

HABEAS CORPUS IS NOT THE CORRECT OR PROPER REMEDY
AVAILABLE TO THE HEREIN PETITIONER.49

Petitioner avers that the Mission Order issued by the Immigration Commissioner for the
investigation and arrest of her husband, Javed Kiani, is null and void. She points out that when
said Order was issued, the BOC had not yet made a determination as to the existence of a lawful
ground for his deportation. She further avers that the Immigration Commissioner has no power to
issue a Mission Order or Warrant of Arrest solely for the purpose of investigation, and before a
final order for deportation is issued by the BOC. She insists that an order of arrest is proper only
if the BOC has already issued an Order of deportation. She cites the rulings of this Court in

Page 28 of 265
Qua Chee Gan v. Deportation Board,50 Ang Ngo Chiong v. Galang,51 and Board of
Commissioners v. Dela Rosa.52

Petitioner further maintains that the filing of the Charge Sheet against Javed Kiani by the
BOC did not render the issue of the illegality of arrest and detention moot and academic. She
asserts that there is no factual and legal basis for the deportation of her husband because he had
been issued a permanent visa and his passport is yet to expire. She avers that a warrant for the
arrest of her husband may be issued only after a Summary Deportation Order shall have become
final and executory. Considering that there was no showing in the records that said Order had
already been promulgated by the BSI, it could not have become final and executory. She avers
that the ruling of this Court in Velasco v. Court of Appeals53 is not applicable in this case.

In its Comment on the petition filed on December 10, 2004, the Office of the Solicitor
General (OSG) avers that it agrees with the ruling of the CA and prays that it be affirmed. Citing
the ruling of this Court in Dwikarna v. Domingo,54 the OSG posits that the remedy of petitioner
from the Summary Deportation Order of the BOC was to appeal to the CA via a petition for
review under Rule 43 of the Revised Rules of Court. It maintains that it was inappropriate for
petitioner to assail the arrest and detention of her husband after the filing of the Charge Sheet
with the BSI.

Page 29 of 265
 The OSG also alleges that Javed Kiani had filed an Omnibus Motion Ad Cautelam55
dated March 19, 2004 in the BID, presumably with the BOC, wherein he prayed that the
Summary Deportation Order issued by the BOC against him be set aside, and that he be released
in the meantime. The OSG also asserts that in said motion, Javed Kiani alleged that his arrest and
detention was illegal because there had been as yet no determination by the BOC of any ground
for his deportation; in effect, he pursued the same reliefs he seeks from this Court in his motion
with the BOC, that is, to declare as illegal his continued detention and order his release. The
OSG avers that this is a classic example of forum shopping which is prohibited under the Rules.

In reply, petitioner asserts that during the pendency of this case, Immigration
Commissioner Alipio F. Fernandez, Jr. granted her husbands Omnibus Motion Ad Cautelam in
an Order56 dated June 22, 2004, and ordered his provisional release on a cash bond of
P50,000.00. The Commissioner also declared that the Summary Deportation Order against her
husband had been improvidently issued, and ruled that there was no factual and legal basis for
his summary deportation. Moreover, Javed Kiani was deprived of his right to due process when
the Order was issued on the same day the Charge Sheet was filed with the BSI.

The Court is posed to resolve the following issues: (1) whether petitioner engaged in
forum shopping; and (2) whether the CA erred in (a) holding that the Petition for a Writ of
Habeas Corpus before the RTC was not the proper remedy of petitioner; (b) upholding the
validity of the Summary Deportation Order issued by the BOC; and (c) declaring that such Order
had become final and executory.

On the first issue, we agree with the contention of the OSG that the petitioner indulged in
forum shopping. Forum shopping is the institution of two or more actions or proceedings

Page 30 of 265
grounded on the same cause on the supposition that one or the other court would make a
favorable disposition. Section 6, Rule 43 of the Revised Rules of Court provides that a petition
for review on certiorari must contain a sworn certification against forum

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shopping as provided in the last paragraph of Section 2, Rule 42 of said Rules, to wit:

The petitioner shall also submit together with the petition a certification
under oath that he has not theretofore commenced any other action involving the
same issues in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn
that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other
tribunal or agency, he undertakes to promptly inform the aforesaid courts and
other tribunal or agency thereof within five (5) days therefrom.

Under Section 5, Rule 45 of said Rules, the failure of the petitioner to comply with any of
the foregoing requirements shall be sufficient ground for the dismissal of the petition.

In Balite v. Court of Appeals,57 the Court held that there is forum shopping when a party
seeks to obtain remedies in an action in one court, which had already been solicited, and in other
courts and other proceedings in other tribunals. While a party may avail of the remedies
prescribed by the Rules of Court, such party is not free to resort to them simultaneously or at
his/her pleasure or caprice. A party should not be allowed to present simultaneous remedies in
two different forums, for it degrades and wreaks havoc to the rule on orderly procedure. A party
must follow the sequence and hierarchical order in availing such remedies and not resort to
shortcuts in procedure or playing fast and loose with the said rules. Forum shopping, an act of
malpractice, is considered as trifling with the courts and abusing their processes. It is improper
conduct and degrades the administration of justice.

In this case, petitioner seeks not only the reversal of the Order of the RTC
dismissing her Petition for a Writ of Habeas Corpus filed in behalf of her husband (where it

Page 32 of 265
was also declared that he had been legally deported), as well as the decision of the CA
affirming the RTCs Order; she also prays that the Court render judgment nullifying the
Summary Deportation Order of the BOC and order her husbands release from detention.
However, Javed Kiani himself, during the pendency of this case, filed an Omnibus Motion Ad
Cautelam with the BID, seeking the same reliefs, which his wife prayed for in this case. By filing
said motion, Javed Kiani sought to preempt the decision of this Court. Petitioner and her husband
even failed to inform the Court of the filing of such motion, and did so only after the OSG had
already informed the Court of such petition, and after petitioner had been ordered to reply to the
Comment of the OSG.

Petitioner and her husband were represented by the same law firm, the Cruz Cruz and
Neria Law Offices. The instant petition and said motion were signed by the same lawyer, Atty.
Marlon Alexandre C. Cruz. That the instant petition was filed by Jeany-Vi Kiani while the
Omnibus Motion was filed by Javed Kiani himself is of no moment; after all, the petition was
filed for and in behalf of the latter, who is the real party-in-interest.58 In effect, the Petition for
Writ of Habeas Corpus was filed by him, as the beneficiary, through his wife as his
representative. Worse, the Immigration Commissioner took cognizance of and granted the same,
despite the pendency of the instant petition, thereby preempting the ruling of this Court.

The Immigration Commissioner and Atty. Marlon Alexandre C. Cruz ought to be

reprimanded for their acts.

Page 33 of 265
 On the merits of the petition, we find and so rule that the CA acted in accord with
jurisprudence when it affirmed the assailed Order of the RTC dismissing the Petition for Habeas
Corpus. As the Court held in Caballes v. Court of Appeals,59

Habeas corpus is not in the nature of a writ of error; nor intended as

substitute for the trial courts function. It cannot take the place of appeal, certiorari
or writ of error. The writ cannot be used to investigate and consider questions of
error that might be raised relating to procedure or on the merits. The inquiry in a
habeas corpus proceeding is addressed to the question of whether the proceedings
and the assailed order are, for any reason, null and void. The writ is not ordinarily
granted where the law

Page 34 of 265
 provides for other remedies in the regular course, and in the absence of
exceptional circumstances. Moreover, habeas corpus should not be granted in
advance of trial. The orderly course of trial must be pursued and the usual
remedies exhausted before resorting to the writ where exceptional circumstances
are extant. In another case, it was held that habeas corpus cannot be issued as a
writ of error or as a means of reviewing errors of law and irregularities not
involving the questions of jurisdiction occurring during the course of the trial,
subject to the caveat that constitutional safeguards of human life and liberty must
be preserved, and not destroyed. It has also been held that where restraint is under
legal process, mere errors and irregularities, which do not render the proceedings
void, are not grounds for relief by habeas corpus because in such cases, the
restraint is not illegal.60

In this case, when petitioner filed her Petition for Habeas Corpus with the RTC in behalf
of her husband, a Charge Sheet had already been filed against him for violation of Section
37(a)(7) and Section 45 of the Philippine Immigration Act of 1940, as amended. The filing of the
Charge Sheet before the BSI cured whatever irregularities or infirmities were attendant to his
arrest. The remedy of petitioner was to file a motion for the dismissal of the Charge Sheet
and the Mission Order of the Immigration Commissioner, not a petition for a writ of
habeas corpus before the RTC. The RTC had no authority to nullify the Mission Order
issued by the Immigration Commissioner, much less set aside the arrest of Javed Kiani. As
held by this Court in Commissioner Rodriguez v. Judge Bonifacio:61

Be that as it may, there was a valid judicial process justifying Ma Jings

detention even before respondent judge rendered his decision as shown by the
Return of the Writ which averred, among others, that a Charge Sheet was filed
against Ma Jing. Even granting that the arrest of Ma Jing was initially illegal, the
filing of the Charge Sheet cured whatever incipient infirmity there was in her
arrest. Respondent judge therefore had no authority to release the party who was
thus committed. Section 4, Rule 102 of the Rules of Court provides:

Page 35 of 265
 SEC. 4. When writ not allowed or discharge authorized. If
it appears that the person to be restrained of his liberty is in the
custody of an officer under process issued by a court or judge; or
by virtue of a judgment or order of a court of record, and that court
or judge had jurisdiction to issue the process, render the judgment,
or make the order, the writ shall not be allowed; or if the

Page 36 of 265
 jurisdiction appears after the writ is allowed, the person shall not
be discharged by reason of any informality or defect in the process,
judgment or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment
under lawful judgment.

Once a person detained is duly charged in court, he may no longer

question his detention through a petition for issuance of a writ of habeas corpus.
His remedy would be to quash the information and/or the warrant of arrest duly
issued. The writ of habeas corpus should not be allowed after the party sought to
be released had been charged before any court. The term court includes quasi-
judicial bodies like the Deportation Board of the Bureau of Immigration.62

The CA acted in accord with jurisprudence when it affirmed the ruling of the RTC
declaring that it had no jurisdiction over petitioners plea to set aside the Summary Deportation
Order issued by the BOC against her husband Javed Kiani. Under Section 8, Chapter 3, Title I,
Book III of Executive Order No. 292, the power to deport aliens is vested on the President of the
Philippines, subject to the requirements of due process. The Immigration Commissioner is vested
with authority to deport aliens under Section 37 of the Philippine Immigration Act of 1940, as
amended. Thus, a party aggrieved by a Deportation Order issued by the BOC is proscribed from
assailing said Order in the RTC even via a petition for a writ of habeas corpus. Conformably
with ruling of the Court in Domingo v. Scheer,63 such party may file a motion for the
reconsideration thereof before the BOC. The Court ruled therein that there is no law or rule
which provides that a Summary Deportation Order issued by the BOC in the exercise of its
authority becomes final after one year from its issuance, or that the aggrieved party is barred
from filing a motion for a reconsideration of any order or decision of the BOC. The Court,
likewise, declared that in deportation proceedings, the Rules of Court may be applied in a

Page 37 of 265
suppletory manner and that the aggrieved party may file a motion for reconsideration of a
decision or final order under Rule 37 of said Rules.64

In case such motion for reconsideration is denied by the BOC, the aggrieved party may
appeal to the Secretary of Justice65 and, if the latter denies the appeal, to the Office of the
President of the Philippines. The party may also choose to file a petition for certiorari with the
CA under Rule 65 of the Rules of Court, on the ground that the Secretary of Justice acted with
grave abuse of discretion amounting to excess or lack of jurisdiction in dismissing the appeal, the
remedy of appeal not being adequate and speedy remedy.66 In case the Secretary of Justice
dismisses the appeal, the aggrieved party may resort to filing a petition for review under Rule 43
of the Rules of Court, as amended.67

In this case, the petitioner did not file any motion with the BOC for reconsideration of the
Summary Deportation Order or appeal therefrom; neither did she appeal to the Secretary of
Justice or to the Office of the President or file a petition for certiorari under Rule 65.

We note that under Section 3, Rule XIII68 of the Rules of Procedure to Govern
Deportation Proceedings, the decision of the BOC shall be returned to the BSI for promulgation,
and shall become final and executory after thirty (30) days from promulgation unless within such
period, the President of the Philippines shall order the contrary.

Page 38 of 265
Page 39 of 265
This rule, however, is not applicable in this case. What the petitioner assailed before the RTC
was a Summary Deportation Order of the BOC, not a BOC decision based on the
recommendation of the BSI after due hearing as mandated by Rule IX of the said Rules of
Procedure.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
Costs against the petitioner.

SO ORDERED.

4.In the Matter of the Petition for Habeas Corpus of Kunting, G.R. No. 167193, April
19, 2006

.R. No. 167193 April 19, 2006

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS ENGR. ASHRAF

KUNTING, Petitioner.

DECISION

AZCUNA, J.:

This is a petition for the issuance of a writ of habeas corpus directing Police Chief
Superintendent Ismael R. Rafanan and General Robert Delfin, 1 Philippine National
Police (PNP) Intelligence Chief, to bring petitioner Ashraf Kunting before this Court and
show cause why he is illegally detained.

The antecedents are as follows:

On October 19, 2001, petitioner Kunting was arrested in Malaysia for violation of
the Malaysian Internal Security Act. On June 12, 2003, the Royal Malaysian Police in
Kuala Lumpur, Malaysia, turned over Kunting to the PNP-IG and Task Force Salinglahi
pursuant to warrants for his arrest issued by the Regional Trial Court (RTC) of Isabela
City, Basilan, Branch 2, Ninth Judicial Region. Kunting was charged with four counts of
Kidnapping for Ransom and Serious Illegal Detention with the RTC under separate

Page 40 of 265
Amended Informations, docketed as Criminal Case Nos. 3674-1187, 3537-1129, 3608-
1164, and 3611-1165.

Petitioner was immediately flown to the Philippines and brought to the PNP-IG at Camp
Crame for booking and custodial investigation.

In a letter dated July 3, 2003, Atty. Guillermo G. Danipog, Jr., Police Superintendent
and Chief of the Legal Affairs Division, PNP-IG, informed the Branch Clerk of Court of
the RTC that Kunting was already in the custody of the PNP-IG. Atty. Danipog
requested for Kunting’s temporary detention at the PNP-IG, Camp Crame, Quezon City
due to the high security risks involved and prayed for the issuance of a corresponding
commitment order.

In a letter dated July 9, 2003, Emilio F. Enriquez, Acting Clerk of Court of the RTC,
replied to the request of Atty. Danipog, thus:

xxx

The undersigned referred the matter to Hon. Danilo M. Bucoy, Presiding Judge of this
Court, who issued the Alias Warrant of Arrest in the herein mentioned case (Criminal
Case No. 3674-1187) and per his instruction, accused As[h]raf Kunting y Barreto [may
be] temporarily detained thereat by virtue of the Alias Warrant of Arrest issued in this
case, however considering that the accused is a high security risk, he should be brought
to Isabela, Basilan as soon as the necessary security escort can be provided for his
transfer, where the proper commitment order can be issued as the herein mentioned
case is about to be submitted by the prosecution.

Thank you ever so much for your usual cooperation extended to the Court. 2

On September 15, 2003, the RTC issued an Order directing the Police Superintendent
and Chief, Legal Affairs Division, PNP-IG, to immediately turn over Kunting to the trial
court since Kunting filed an Urgent Motion for Reinvestigation.

On November 5, 2003, PNP-IG Director Arturo C. Lomibao wrote a letter to Chief State
Prosecutor Jovencito R. Zuño, Department of Justice (DOJ), requesting for
representation and a motion to be filed for the transfer of the venue of the trial from
Isabela City, Basilan to Pasig City, for the following reasons: (1) Several intelligence
reports have been received by the PNP-IG stating that utmost effort will be exerted by
the Abu Sayyaf Group (ASG) to recover the custody of Kunting from the PNP
considering his importance to the ASG; and (2) there is a big possibility that Kunting
may be recovered by the ASG if he will be detained in Basilan due to inadequate
security facility in the municipal jail and its proximity to the area of operation of the ASG.

On August 13, 2004, the RTC rendered a decision against petitioner’s co-accused in the
consolidated Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187, and 3611-1165,
finding 17 of the accused, who were tried, guilty of the crime/s charged.

Page 41 of 265
On February 11, 2005, the RTC issued an Order denying Kunting’s Motion to Set Case
for Preliminary Investigation since the PNP-IG has not turned over Kunting. The trial
court reiterated its Order dated September 15, 2003, directing the Police
Superintendent and Chief, Legal Affairs Division, PNP-IG, to turn over Kunting to the
court.1avvphil.net

In a letter dated February 22, 2005, Police Chief Superintendent Ismael R. Rafanan
reiterated the request to Chief State Prosecutor Jovencito R. Zuño to facilitate the
transfer of the venue of the trial of Kunting’s case, citing the same grounds in the
previous letter. He added that if Kunting had been transferred to Isabela City, Basilan,
he could have been one of the escapees in a jail break that occurred on April 10, 2004
as suspected ASG members were able to go scot-free.

On March 15, 2005, Police Inspector Amado L. Barbasa, Jr., OIC, Legal Affairs Division,
PNP-IG, filed with the RTC a Motion to Defer Implementation of the Order dated
February 11, 2005, citing, among other grounds, the existence of a pending motion for
the transfer of the venue of the trial of Criminal Case No. 3537-1129 against Kunting,
which was allegedly filed by the DOJ before this Court. Police Inspector Barbasa prayed
that the Order of the RTC dated February 11, 2005, directing the turnover of Kunting to
the court, be suspended until the motion for the transfer of venue is resolved.

On March 14, 2005, Kunting, by counsel, filed this petition for the issuance of a
writ of habeas corpus. Kunting stated that he has been restrained of his liberty
since June 12, 2003 by the PNP-IG led by Police Chief Superintendent Ismael Rafanan
and assisted by PNP Intelligence Chief, General Robert Delfin. He alleged that he was
never informed of the charges filed against him until he requested his family to
research in Zamboanga City. It was discovered in the RTC of Isabela City, Basilan
that his name appeared in the list of accused who allegedly participated in the
kidnapping incident which occurred on June 2, 2001 in Lamitan, Basilan.

Kunting asserted that he never participated in the kidnapping incident, so he promptly

filed an Urgent Motion for Reinvestigation on September 8, 2003. He was aware that
the PNP-IG requested Chief State Prosecutor Jovencito R. Zuño for representation to
file a motion with this Court for the transfer of venue of his case from Isabela City,
Basilan to Pasig City. Having no further information on the status of his case, he filed a
Motion to Set Case for Preliminary Investigation on January 26, 2005. He stated that
since no action was taken by the trial court or the DOJ, he filed this petition to put an
end to his illegal detention classified in the records as "for safekeeping purposes only."

The main issue is whether the petition for habeas corpus can prosper.

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to
"all case of illegal confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld from the person
entitled thereto." The remedy of habeas corpus has one objective: to inquire into the
cause of detention of a person,3 and if found illegal, the court orders the release of the

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detainee.4 If, however, the detention is proven lawful, then the habeas corpus
proceedings terminate.5

Section 4, Rule 102 of the Rules of Court provides when the writ is not allowed:

SEC. 4. When writ not allowed or discharge authorized.—If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record, and
that the court or judge had jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ
is allowed, the person shall not be discharged by reason of any informality or defect in
the process, judgment, or order. Nor shall anything in this rule be held to authorize
the discharge of a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment. 6

In this case, Kunting’s detention by the PNP-IG was under process issued by the
RTC. He was arrested by the PNP by virtue of the alias order of arrest issued by
Judge Danilo M. Bucoy, RTC, Branch 2, Isabela City, Basilan. His temporary
detention at PNP-IG, Camp Crame, Quezon City, was thus authorized by the trial
court.1avvphil.net

Moreover, Kunting was charged with four counts of Kidnapping for Ransom and Serious
Illegal Detention in Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187, and 3611-
1165. In accordance with the last sentence of Section 4 above, the writ cannot be
issued and Kunting cannot be discharged since he has been charged with a
criminal offense. Bernarte v. Court of Appeals7 holds that "once the person
detained is duly charged in court, he may no longer question his detention by a
petition for the issuance of a writ of habeas corpus."

Nevertheless, this Court notes that the RTC in its Order dated February 11, 2005
reiterated its Order dated September 15, 2003, directing the Police Superintendent and
Chief, Legal Affairs Division, PNP-IG, Camp Crame, Quezon City, to turn over Kunting
to the court. TThe trial court has been waiting for two years for the PNP-IG to turn over
the person of Kunting for the trial of his case. The PNP-IG has delayed the turn over
because it is waiting for the DOJ to request for the transfer of venue of the trial of the
case from Isabela City, Basilan to Pasig City. In the absence of evidence that the DOJ
has indeed filed a motion for the transfer of venue, In its Comment, the Office of the
Solicitor General stated that the PNP-IG is presently awaiting the resolution of the
Motion for Transfer of Venue it requested from the DOJ. In this regard, t the Police Chief
Superintendent is, therefore, directed to take positive steps towards action on said
motion.comply with the Order of the trial court, dated February 11, 2005, to turn over the
body of petitioner Kunting to the trial court..

WHEREFORE, the instant petition for habeas corpus is hereby DISMISS

Page 43 of 265
Sec. 5. When writ must be granted and issued
5.In the Matter of the Petition for Habeas Corpus of Eufemia E. Rodriguez, G.R. No.
169482, January 29, 2008

G.R. No. 169482 January 29, 2008

IN THE MATTER OF THE PETITION OF HABEAS CORPUS OF EUFEMIA E.

RODRIGUEZ, filed by EDGARDO E. VELUZ, petitioner,
vs.
LUISA R. VILLANUEVA and TERESITA R. PABELLO, respondents.

DECISION

CORONA, J.:

This is a petition for review1 of the resolutions2 dated February 2, 2005 and September
2, 2005 of the Court of Appeals3 in CA-G.R. SP No. 88180 denying the petition for
habeas corpus of Eufemia E. Rodriguez, filed by petitioner Edgardo Veluz, as well as
his motion for reconsideration, respectively.

Eufemia E. Rodriguez was a 94-year old widow, allegedly suffering from a poor state of
mental health and deteriorating cognitive abilities.4 She was living with petitioner, her
nephew, since 2000. He acted as her guardian.

In the morning of January 11, 2005, respondents Luisa R. Villanueva and Teresita R.
Pabello took Eufemia from petitioner Veluz’ house. He made repeated demands for the
return of Eufemia but these proved futile. Claiming that respondents were restraining
Eufemia of her liberty, he filed a petition for habeas corpus5 in the Court of
Appeals on January 13, 2005.

The Court of Appeals ruled that petitioner failed to present any convincing proof that
respondents (the legally adopted children of Eufemia) were unlawfully restraining their
mother of her liberty. He also failed to establish his legal right to the custody of Eufemia
as he was not her legal guardian. Thus, in a resolution dated February 2, 2005,6 the
Court of Appeals denied his petition.

Petitioner moved for reconsideration but it was also denied.7 Hence, this petition.

Petitioner claims that, in determining whether or not a writ of habeas corpus should
issue, a court should limit itself to determining whether or not a person is unlawfully
being deprived of liberty. There is no need to consider legal custody or custodial rights.
The writ of habeas corpus is available not only if the rightful custody of a person
is being withheld from the person entitled thereto but also if the person who
disappears or is illegally being detained is of legal age and is not under
guardianship. Thus, a writ of habeas corpus can cover persons who are not

Page 44 of 265
under the legal custody of another. According to petitioner, as long as it is alleged
that a person is being illegally deprived of liberty, the writ of habeas corpus may issue
so that his physical body may be brought before the court that will determine whether or
not there is in fact an unlawful deprivation of liberty.

In their comment, respondents state that they are the legally adopted daughters of
Eufemia and her deceased spouse, Maximo Rodriguez. Prior to their adoption,
respondent Luisa was Eufemia’s half-sister8 while respondent Teresita was Eufemia’s
niece and petitioner’s sister.9

Respondents point out that it was petitioner and his family who were staying with
Eufemia, not the other way around as petitioner claimed. Eufemia paid for the rent of
the house, the utilities and other household needs.

Sometime in the 1980s, petitioner was appointed as the "encargado" or administrator of

the properties of Eufemia as well as those left by the deceased Maximo. As such, he
took charge of collecting payments from tenants and transacted business with third
persons for and in behalf of Eufemia and the respondents who were the only
compulsory heirs of the late Maximo.

In the latter part of 2002, Eufemia and the respondents demanded an inventory and
return of the properties entrusted to petitioner. These demands were unheeded. Hence,
Eufemia and the respondents were compelled to file a complaint for estafa against
petitioner in the Regional Trial Court of Quezon City. Consequently, and by reason of
their mother’s deteriorating health, respondents decided to take custody of Eufemia on
January 11, 2005. The latter willingly went with them. In view of all this, petitioner failed
to prove either his right to the custody of Eufemia or the illegality of respondents’ action.

We rule for the respondents.

The writ of habeas corpus extends to all cases of illegal confinement or detention by
which any person is deprived of his liberty or by which the rightful custody of a person is
being withheld from the one entitled thereto.10 It is issued when one is either deprived of
liberty or is wrongfully being prevented from exercising legal custody over another
person.11 Thus, it contemplates two instances: (1) deprivation of a person’s liberty either
through illegal confinement or through detention and (2) withholding of the custody of
any person from someone entitled to such custody.

In this case, the issue is not whether the custody of Eufemia is being rightfully withheld
from petitioner but whether Eufemia is being restrained of her liberty. Significantly,
although petitioner admits that he did not have legal custody of Eufemia, he
nonetheless insists that respondents themselves have no right to her custody. Thus, for
him, the issue of legal custody is irrelevant. What is important is Eufemia’s personal
freedom.

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Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of
liberty must be in the nature of an illegal and involuntary deprivation of freedom of
action.12

In general, the purpose of the writ of habeas corpus is to determine

whether or not a particular person is legally held. A prime specification
of an application for a writ of habeas corpus, in fact, is an actual and
effective, and not merely nominal or moral, illegal restraint of liberty. "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. 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."13 (emphasis supplied)

In passing upon a petition for habeas corpus, a court or judge must first inquire
into whether the petitioner is being restrained of his liberty.14 If he is not, the writ
will be refused. Inquiry into the cause of detention will proceed only where such restraint
exists.15 If the alleged cause is thereafter found to be unlawful, then the writ should be
granted and the petitioner discharged.16 Needless to state, if otherwise, again the writ
will be refused.

While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere
perfunctory operation on the filing of the petition. 17 Judicial discretion is called for in its
issuance and it must be clear to the judge to whom the petition is presented that, prima
facie, the petitioner is entitled to the writ.18 It is only if the court is satisfied that a person
is being unlawfully restrained of his liberty will the petition for habeas corpus be
granted.19 If the respondents are not detaining or restraining the applicant or the person
in whose behalf the petition is filed, the petition should be dismissed.20

In this case, the Court of Appeals made an inquiry into whether Eufemia was being
restrained of her liberty. It found that she was not:

There is no proof that Eufemia is being detained and restrained of

her liberty by respondents. Nothing on record reveals that she was
forcibly taken by respondents. On the contrary, respondents, being
Eufemia’s adopted children, are taking care of her.21 (emphasis supplied)

The Court finds no cogent or compelling reason to disturb this finding. 22

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

Page 46 of 265
No right to bail when applicant is serving sentence by final judgment by final
judgment
6.Vicente vs. Majaducon, A.m. No. RT J-02-1698 (Formerly OCA IPI No. 00-1024-RTJ),
June 23, 2005

[A.M. No. RTJ-02-1698. June 23, 2005]

DANTE VICENTE, petitioner, vs. JUDGE JOSE S. MAJADUCON, respondent.

RESOLUTION
AUSTRIA-MARTINEZ, J.:

In a letter-complaint dated July 21, 2000, addressed to then Court Administrator

Alfredo L. Benipayo, Dante Vicente charged respondent Judge Jose S. Majaducon of
the Regional Trial Court (RTC) of General Santos City, Branch 23, with gross ignorance
of the law, grave abuse of authority and manifest partiality, praying that he be
administratively disciplined and terminated from the service.
The instant administrative complaint stemmed from a series of criminal cases
involving a certain Evelyn Te of General Santos City. The factual and procedural
antecedents leading to the instant administrative case is summarized in this Courts
Resolution of February 19, 2001, in G.R. Nos. 145715-18 entitled, People of the
Philippines vs. Evelyn Te, pertinent portions of which read as follows:
In a joint decision dated May 31, 1995, the Regional Trial Court, Branch 23,
General Santos City, found Evelyn Te guilty on four counts of violation of B. P.
Blg. 22, otherwise known as the Bouncing Checks Law, and sentenced her to
two (2) months of imprisonment on each count. The decision became final and
executory after this Court had denied Tes petition for review from the affirmance
of the trial courts decision by the Court of Appeals.
On March 11, 2000, Te sought clarification from the trial court whether she
should serve her sentences successively or simultaneously. In an order, dated
May 25, 2000, the trial court clarified that she should serve her sentences
successively, but for humanitarian reason and in accordance with Art. 70 of the
Revised Penal Code, it held that instead of serving imprisonment of EIGHT
months, the prisoner EVELYN TE should serve only six months.
On June 2, 2000, Te filed a motion for reconsideration, which she
prayed be also considered as a petition for issuance of the writ of habeas

Page 47 of 265
 corpus. Citing Vaca v. Court of Appeals, 298 SCRA 656 (1998), in which the
sentence of imprisonment of a party found guilty of violation of B.P. Blg. 22 was
reduced to a fine equal to double the amount of the check involved, Te prayed
that her sentence be similarly modified and that she be immediately released
from detention. In a supplemental motion, Te argued that she had been denied
equal protection of the law because the trial judge in another case involving
multiple counts of robbery directed the accused to simultaneously serve his
sentences.
On June 20, 2000, the trial court denied Tes petition for issuance of the
writ of habeas corpus on the ground that Te was detained by virtue of a
final judgment.
On June 22, 2000, Te filed an omnibus motion praying for her release on
the ground that she had been in jail since March 15, 2000 and had fully served
the three months minimum of her total sentence under the Indeterminate
Sentence Law. In the alternative, Te prayed for release on recognizance.
On June 23, 2000, Te moved for reconsideration of the trial courts order of
June 20, 2000, alleging that the finality of the joint decision against her did not
bar her application for the writ of habeas corpus. She prayed that pending
determination as to whether the Vaca ruling applied to her, she also be allowed
to post bail pursuant to Rule 102, 14.
On July 5, 2000, the trial court allowed Te to post bail in the amount of
one million pesos, holding that it would order her release upon the
approval of her bail bond and thereafter certify the proceedings to the
Court as the latter has concurrent jurisdiction over proceedings for
habeas corpus.
On July 7, 2000, the trial court approved Tes bail bonds in the reduced
amount of P500,000.00 and ordered her release. The trial court also directed its
clerk of court to certify the proceedings to the Court.
On July 11, 2000, Assistant City Prosecutor Marie Ellengred L. Baliguiat
moved for reconsideration of the trial courts resolution of July 5, 2000.
On July 18, 2000, Te filed a notice of appeal from the order, dated June 20,
2000, and the resolution, dated July 5, 2000, of the trial court.
On July 31, 2000, the trial court denied the motion for reconsideration of the
Assistant City Prosecutor. It also denied due course to Tes notice of appeal on
the ground that there was no necessity for the appeal to the Court of Appeals
because it had already ordered that the whole records be forwarded to this
Court pursuant to Rule 102, 14.[1]
In the present case, complainant, who claims to be the station manager of Radyo
Bombo, General Santos City, alleges that while Te was in prison, respondent judge
allowed her to be released and confined at a local hospital in the guise that she was
suffering from certain illnesses. Complainant further alleges that respondent judge
approved Tes application for bail as part of habeas corpus proceedings even though no

Page 48 of 265
petition for habeas corpus in favor of Te was filed and docketed. As a result of
respondent judges order allowing the provisional liberty of Te, the local media in
General Santos City made an uproar and criticized respondent judge for his action on
the said case. In retaliation, respondent judge cited for indirect contempt a group of
mediamen who published a critical article against him. Complainant contends that
respondent judge will not hesitate to use his clout and power to stifle criticism and
dissent. In addition, complainant alleges that in a separate case, respondent judge
allowed the release of the accused without the posting of the necessary bail. On the
basis of the above allegations, complainant prays that respondent judge be investigated
and if warranted, be terminated and removed from service. [2]
In his Comment, dated October 17, 2000, respondent judge submitted the following
contentions which we quote verbatim:
1. The certified records of the above-mentioned cases against Evelyn Te
were forwarded to the Supreme Court on August 5, 2000, upon the order of
undersigned by the Branch Clerk of Court for review of our questioned Order
(attached as ANNEX 1 of letter Complaint);
2. On June 2, 2000, Evelyn Tes counsel filed not only a motion for
reconsideration denying our previous order denying her motion for release from
detention but also a petition for Habeas Corpus in the same cases;
3. In the exercise of sound discretion and after hearing the comment of the
public prosecutor, we issued the questioned Order, which is self-explanatory;
4. We believed then that we had the discretion to allow her to be released
on bail, based on Sec. 14, Rule 102 of the Revised Rules of Court;
5. We were thinking then that in such a dilemma, whether or not to release
her on bail, it was a better judgment to release her from bail on a writ of habeas
corpus, because, Evelyn Te might be right in her contention that she is
considered to have served her sentences simultaneously. If we denied her
petition for Habeas Corpus, and on appeal, she could get a favorable decision
from the Supreme Court, surely, she could return and charge us with a graver
offense of ignorance of the law and abuse of discretion. She could even file
other cases against us under the Revised Penal Code, such as rendering an
unjust order, or under the Civil Code for moral damages in millions of pesos;
6. To obviate such a possible move on Tes part, we opted to allow her
release on bail through the writ of habeas corpus proceedings. Anyway, the
Supreme Court has the last say on that matter;
7. Therefore, we are of the view that the letter complaint of Mr. Dante
Vicente is legally premature as it concerned cases which are still sub judice;
8. Besides, we are of the opinion that Mr. Vicente has no personality as a
third party to charge us with anything as he has not shown any damage that he
could have suffered because of our Order;

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 9. We are convinced that Mr. Vicente is trying to pre-empt our move to
charge his radio station for libel or cite the announcer for indirect contempt of
Court when his radio station and announcer had been reviling and attacking us
for many days on the air for having allowed Evelyn Te to be treated and
confined in a hospital upon recommendation of a government doctor and for
having allowed her release from imprisonment on bail; a certified Xerox copy of
the letter of the Regional Director of the Department of Transportation and
Communication (National Telecommunications Commission) dated August 9,
2000, in reply to our request for copies of the broadcast tapes, is attached
herewith as ANNEX 1;
10. As to the charge that we are stifling criticism by the print and broadcast
media, we are of the view that if media has the privilege to criticize the Courts
and the Judges, we have also the right to charge them for indirect contempt of
Court and libel, because there are laws regarding this matter. The article of a
certain Joseph Jubelag is now a subject of an indirect contempt charge before
us, which we are about to resolve;
11. Regarding our Order in Criminal Case No. 14072 in the case of People
vs. Jhoyche Gersonin-Palma, RTC Br. 36, it was done with sound discretion on
our part because it was already 6:30 in the evening and the offices were closed
and being a Friday, the accused would be detained for two days and three
nights, unless we accepted and approved the bail bond. Besides, the law
requires judges to approve bail even during the holidays. Immediately, on
Monday, the money in the amount of P6,000.00 was deposited with the Clerk of
Court as shown in the official receipt (ANNEX 6 of letter complaint);
12. Regarding our competence, honesty and integrity, modesty aside, as a
judge for the last thirteen years in General Santos City, the records of the
Municipal Trial Court and RTC, Branches 23 and 22 (being a pairing judge of
the latter court since October last year) show that most of our decisions
appealed to the Court of Appeals and the Supreme Court have been sustained
or affirmed;
13. As to our reputation in the community, let other members of the media
and a member of the Philippine Bar speak about it. We are enclosing herewith a
Xerox copy of a news clipping of Philippine Daily Inquirer, July 8, 2000 issue
(attached herewith as ANNEX 2), about how we tried and decided the
celebrated case of People vs. Castracion, et. al. when the Supreme Court
assigned us to hear the evidence of the defense and decide the case. We did
our work in that case as best we could as we have done in all cases being tried
and decided by us, mindful of our duty to do our work with faithful diligence,
honesty, and integrity. We do not expect praises from others as we do not also
wish to be criticized or attacked by Radio Bombo station in General Santos City
especially by its manager, Mr. Dante Vicente, without basis or competent proof
and evidence. Atty. Rogelio Garcia, who vouched for our honesty, competence
and integrity is a former assemblyman of South Cotabato and General Santos

Page 50 of 265
 City, and an ex-Assistant Minister of Labor. He has known us in the community
for almost twenty five years;
14. Complainant Dante Vicente is just a newcomer to General Santos and
he and his radio station have a bad and notorious reputation of attacking the
character and good name of some people here as shown by cases for libel filed
in our courts.[3]
In its Report dated March 11, 2002, the Office of the Court Administrator (OCA)
confirmed that Criminal Cases Nos. 9456-9460 were indeed certified by respondent to
this Court.[4] However, this Court in its Resolution of February 19, 2001 in G.R. Nos.
145715-18, resolved to return the records of the consolidated cases to the RTC of
General Santos City, Branch 23, and to order the said court to give due course to
Evelyn Tes notice of appeal from the Order denying her petition for habeas corpus and
from the Order requiring her to post bail in the amount of one million pesos for her
release from detention. This Court made the following pronouncements:
Rule 102, 14 provides:
When person lawfully imprisoned recommitted, and when let to bail.
If it appears that the prisoner was lawfully committed, and is plainly and
specifically charged in the warrant of commitment with an offense
punishable by death, he shall not be released, discharged, or bailed. If
he is lawfully imprisoned or restrained on a charge of having committed
an offense not so punishable, he may be recommitted to imprisonment
or admitted to bail in the discretion of the court or judge. If he be
admitted to bail, he shall forthwith file a bond in such sum as the court
or judge deems reasonable, considering the circumstances of the
prisoner and the nature of the offense charged, conditioned for his
appearance before the court where the offense is properly cognizable
to abide its order or judgment; and the court or judge shall certify the
proceedings, together with the bond, forthwith to the proper court. If
such bond is not so filed, the prisoner shall be recommitted to
confinement.
The foregoing provision, however, applies to cases where the applicant
for the writ of habeas corpus is restrained by virtue of a criminal charge
against him, not where, as here, he is serving sentence by reason of a
final judgment. Indeed, Rule 102, 4 disallows issuance of the writ where
the person alleged to be restrained of his liberty is suffering imprisonment
under lawful judgment.
The certification of a case under Rule 102, 14, moreover, refers to cases
where the habeas corpus court finds that the applicant is charged with the
noncapital offense in another court. Thus, the certification of this case to this
Court is clearly erroneous.[5]
On the basis of the above-quoted Resolution and the provisions of Section 24, Rule
114 of the Rules of Court, the OCA, in its Report in the present case, found respondent

Page 51 of 265
judge guilty of gross ignorance of the law and recommended that he be fined in the
amount of P20,000.00.[6]
The Court agrees with the findings of the OCA except for the recommended
penalty.
Section 24, Rule 114 of the Rules of Court is plain and clear in prohibiting the grant
of bail after conviction by final judgment and after the convict has started to serve
sentence. It provides:
SEC. 24. No bail after final judgment; exception. An accused shall not be
allowed bail after the judgment has become final, unless he has applied
for probation before commencing to serve sentence, the penalty and the
offense being within the purview of the Probation Law. In case the accused
has applied for probation, he may be allowed temporary liberty under his bail,
but if no bail was filed or the accused is incapable of filing one, the court may
allow his release on recognizance to the custody of a responsible member of
the community. In no case shall bail be allowed after the accused has
commenced to serve sentence. (Emphasis supplied)
The only exception to the above-cited provision of the Rules of Court is when the
convict has applied for probation before he commences to serve sentence, provided the
penalty and the offense are within the purview of the Probation Law.
In the case of Evelyn Te, the judgment finding her guilty of violation of B.P. Blg. 22
on four counts and imposing upon her the penalty of imprisonment for two months on
each count has already become final and executory. She did not apply for probation. At
the time respondent judge granted her bail she was already serving her sentence.
From the foregoing, it is evident that Te is not entitled to bail. Respondent judge
contends that under Section 14, Rule 102 of the Rules of Court, he has the discretion to
allow Te to be released on bail. However, the Court reiterates its pronouncement in its
Resolution of February 19, 2001 in G.R. Nos. 145715-18 that Section 14, Rule 102 of
the Rules of Court applies only to cases where the applicant for the writ of habeas
corpus is restrained by virtue of a criminal charge against him and not in an instance, as
in the case involved in the present controversy, where the applicant is serving sentence
by reason of a final judgment.
The Court agrees with the observation of the OCA that respondent judges
ignorance or disregard of the provisions of Section 24, Rule 114 and Section 14, Rule
102 of the Rules of Court is tantamount to gross ignorance of the law and procedure. A
judge is called upon to exhibit more than just a cursory acquaintance with statutes and
procedural rules.[7] It is imperative that he be conversant with basic legal principles and
be aware of well-settled authoritative doctrines.[8] He should strive for excellence
exceeded only by his passion for truth, to the end that he be the personification of
justice and the Rule of Law.[9] When the law is sufficiently basic, a judge owes it to his
office to simply apply it; anything less than that would be gross ignorance of the law. [10]
In the present case, considering that the granting of bail is common in the
litigation of criminal cases before trial courts, we are not impressed with the

Page 52 of 265
explanation of respondent judge in granting bail to Te. Respondent judge contends
that he was caught in a dilemma whether or not to grant bail in favor of Te. However, he
thought that it would be better for him to release Te on bail rather than deny her
application; for if such denial is later found out by the appellate courts to be erroneous,
Te could charge him with gross ignorance of the law and abuse of discretion, or hold
him liable for rendering an unjust order or for damages. Hence, to obviate such
possible move on Tes part, he simply allowed her to be released on bail and
relieved himself of any burden brought about by the case of Te by certifying the
same to this Court contending that, [a]nyway, the Supreme Court has the last say
on (the) matter.
The Court finds respondents reasoning shallow and unjustified. He cannot simply
shirk responsibility by conveniently passing the buck, so to speak, to this Court on the
pretext that we have the final say on the matter. This is hardly the kind of trait expected
of a judge. Rule 3.02, Canon 3 of the Code of Judicial Conduct provides that in every
case, a judge shall endeavor diligently to ascertain the facts and the applicable law
unswayed by partisan interests, public opinion or fear of criticism. In Dimatulac vs.
Villon,[11] we held that:
The judge, on the other hand, should always be imbued with a high sense
of duty and responsibility in the discharge of his obligation to promptly and
properly administer justice. He must view himself as a priest for the
administration of justice is akin to a religious crusade. Thus, exerting the same
devotion as a priest in the performance of the most sacred ceremonies of
religious liturgy, the judge must render service with impartiality commensurate
with public trust and confidence reposed in him.[12]
In the present case, respondent judge fell short of the above-cited ideals expected of a
magistrate.
Complainants allegation that no petition for habeas corpus was filed does not hold
water. As borne by the records, the Certification issued by one Atty. Elmer D.
Lastimosa, Clerk of Court of the Regional Trial Court of General Santos City, shows that
Evelyn Tes petition for habeas corpus was incorporated in the pleadings she filed in
Criminal Cases Nos. 9456-9460, although no docket fees and other charges were
paid.[13] There is no showing that respondent should be held administratively liable for
the non-payment of docket and other lawful fees. At any rate, the matter may be
considered in the appeal taken by Te, as earlier adverted to in G.R. Nos. 145715-18.
Complainant further claims that on several occasions, respondent judge allowed Te
to be released and confined at a local hospital on account of false illnesses. However,
the Court does not find sufficient evidence to prove this charge. On the contrary,
records on hand show that the confinement of Te in the hospital is recommended by a
panel of government doctors and that such confinement is made without the objection of
the public prosecutor.[14] Hence, the Court finds respondent judges act of allowing the
temporary confinement of Te in the hospital as justified. The Court agrees with the
observation of the OCA that in the absence of contradictory evidence, the presumption
of regularity in the performance of official duty should be upheld in favor of respondent
judge.[15]

Page 53 of 265
 The Court likewise finds no sufficient evidence to find respondent judge guilty of the
charge that he uses his clout and power to stifle criticism and dissent. In the present
case, the Court finds nothing irregular or arbitrary in his act of requiring a number of
journalists to show cause why they should not be cited for indirect contempt. Freedom
of speech and of expression, as guaranteed by the Constitution, is not absolute.[16]
Freedom of expression needs on occasion to be adjusted to and accommodated with
the requirements of equally important public interests such as the maintenance of the
integrity of courts and orderly functioning of the administration of justice. [17] In the instant
case, the Court finds nothing whimsical or despotic in respondent judges act of issuing
the subject show-cause order. Instead, respondent is merely exercising his right to
protect his honor and, more importantly, the integrity of the court which he represents.
As to the issue that respondent judge allowed the release of an accused in Criminal
Case No. 14072, entitled People vs. Jhoyce Gersonin-Palma, without the required bail
bond being posted, it is not within the jurisdiction of this Court to resolve the same on
the basis of the OCA Report as it is already the subject of a separate administrative
case against respondent.[18]
Having found respondent guilty of gross ignorance of the law, as discussed earlier,
the Court now determines the proper imposable penalty. Section 8(9), Rule 140 of the
Rules of Court, as amended, classifies gross ignorance of the law or procedure as a
serious charge. Under Section 11(A) of the same Rule, the imposable penalties, in case
the respondent is found culpable of a serious charge, range from a fine of not less than
P20,000.00 but not more than P40,000.00 to dismissal from the service with forfeiture of
all or part of the benefits as the Court may determine, except accrued leaves, and
disqualification from reinstatement or appointment to any public office including
government-owned or controlled corporations.
However, on February 24, 2002, respondent retired upon reaching the compulsory
retirement age of 70.[19] Considering that respondent can no longer be dismissed or
suspended, the Court is left with no recourse but to impose the penalty of fine.
Further, it is noted that on July 8, 2002, the Third Division of this Court, in
Administrative Matter No.10874-Ret., concerning the compulsory retirement of
respondent, resolved to release his retirement benefits but set aside P100,000.00
thereof in view of several administrative cases still pending against him.[20]
In the administrative complaints filed against respondent, two cases have, so far,
resulted in his being fined. In Chan vs. Majaducon,[21] respondent was found guilty of
violating among others, Rules 1.01 and 2.01 and Canon 2 of the Code of Judicial
conduct and was meted the penalty of fine in the amount of P10,000.00. In the more
recent case of Alconera vs. Majaducon,[22] respondent was found guilty of gross
ignorance of procedure and was fined P40,000.00. In view of the foregoing, it is proper
to impose the maximum fine of P40,000.00 to be deducted from the P100,000.00 set
aside from respondents retirement benefits in A.M. No. 10874-Ret.
WHEREFORE, respondent judge is found GUILTY of gross ignorance of the law or
procedure. He is ordered to pay a FINE of P40,000.00 to be deducted from the
P100,000.00 set aside from his retirement benefits in A.M. No. 10874-Ret.

Page 54 of 265
 SO ORDERED.

Habeas corpus as post-conviction remedy

7Andal vs. Peopleof the Philippines, G.R. No. 138268, May 26, 1999

G.R. No. 138268 May 26, 1999

JURRY ANDAL, RICARDO ANDAL and EDWIN MENDOZA, petitioners,

vs.
PEOPLE OF THE PHILIPPINES, REGIONAL TRIAL COURT, BATANGAS BR. 05,
LEMERY, THE DIRECTOR, BUREAU OF CORRECTIONS, and THE HONORABLE,
THE SECRETARY OF JUSTICE, in their official capacities, respondents.

RESOLUTION

PER CURIAM:

The power of judicial review is an aspect of judicial power that allows this Court every
opportunity to review, revise, reverse, modify, or affirm on appeal or certiorari, as the
law or the Rules of Court may provide, final judgments and orders of lower courts and to
determine whether or not there has been a grave abuse of discretion amounting to lack
of or excess of jurisdiction on the part of any branch or instrumentality of the
government.

The case before us is a petition for a writ of habeas corpus filed by Jurry Andal,
Ricardo Andal and Edwin Mendoza, all convicted of rape with homicide In Criminal
Case No. 148-94 and 149-94, Regional Trial Court, Batangas, Branch 05, Lemery,
affirmed by this Court in a decision en banc promulgated on September 25, 1997, and a
resolution promulgated on February 17, 1998. They are scheduled for execution on
June 16, 17, and 18, 1999. Petitioners seek a writ of habeas corpus on the basis of a
claim of mistrial and or that the decision of the Regional Trial Court, Batangas, Branch
05, Lemery, was void. They pray for a temporary restraining order to stay their
execution and/or a preliminary injunction enjoining their execution.

The petitioners rely on the argument that the trial court was "ousted" of jurisdiction to try
their case since the pre-trial identification of the accused was made without the
assistance of counsel and without a valid waiver from the accused. The petitioners cite
the case of Olaguer v. Military Commission
No. 34 2, wherein in a separate opinion, Justice Claudio Teehankee stated that "Once a
deprivation of a constitutional right is shown to exist, the court that rendered the
judgment is deemed ousted of its jurisdiction and habeas corpus is the appropriate
remedy to assail the legality of the detention."

Page 55 of 265
We agree with petitioners that the extra-ordinary writ of habeas corpus is the
appropriate remedy to inquire into questions of violation of the petitioners'
constitutional rights and that this Court has jurisdiction to entertain this review.
Indeed, under the Constitution, the jurisdiction of this Court has been expanded
"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." 3

And under Rule 102, Section 1 of the Revised Rules of Court, it is provided that "Except
as otherwise expressly provided by law, the writ of habeas corpus shall extend to all
cases of illegal confinement or detention by which any person is deprive of his liberty, or
by which the rightful custody of any person is withheld from the person entitled thereto."

He may also avail himself of the writ where as a consequence of a judicial proceeding
(a) there has been a deprivation of a constitutional right resulting in the restraint of a
person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive
penalty has been imposed, as such sentence is void as to such excess. 4

However, in this case, we find that there was no violation of the constitutional
rights of the accused and a resultant deprivation of liberty or due process of law.
In fact, the petition may be viewed as an attempt at a second motion for
reconsideration of a final decision of the Court, disguised as one for habeas
corpus. The accused were sentenced to the supreme penalty of death as a result
of a valid accusation, trial, and judgment by a court of competent jurisdiction,
after a fair and equitable trial.

The factual milieu does not show a mistrial or a violation of the constitutional rights of
the accused. As ruled by this Court, in its decision of September 25, 1997. "the
constitutional infirmity cannot affect the conclusion since accused-appellants did not
make any confessions or admissions in regard to the crime charged. Further the earring
recovered from Jury Andal was not obtained in the course of the investigation itself, but
obtained through a search incident to a lawful arrest." 5

The Court has held in a long line of cases, that "any illegality attendant during the arrest
is deemed cured when the accused voluntarily submitted themselves to the jurisdiction
of the court by entering their plea." 6

The trial court therefore had jurisdiction to try the case. The Court subsequently affirmed
the decision based on a careful consideration of the evidence presented both by the
prosecution and the defense. The absence of the testimony of Rufino Andal due to the
failure of the defense counsel to present him as a witness will not make the judgment of
the lower court invalid or void. The case was decided on the evidence presented, which
this Court considered sufficient to support the judgment of conviction.

The issue of "DNA tests" as a more accurate and authoritative means of identification
than eye-witness identification need not be belabored. The accused were all properly

Page 56 of 265
and duly identified by the prosecution's principal witness. Olimpio Corrales, a brother in
law of accused Jurry and Ricardo Andal. DNA testing proposed by petitioners to have
an objective and scientific basis of identification of "semen samples to compare with
those taken from the vagina of the victim" are thus unnecessary or are forgotten
evidence too late to consider now.

The trial court imposed and this Court affirmed the correct sentence.

The death penalty is what the law prescribes in cases involving rape with homicide. 7

We agree with the accused that they should be afforded every opportunity to prove their
innocence, especially in cases involving the death penalty; in this case, the Court can
state categorically that every opportunity was provided the accused. However painful
the decision may be in this case, we have conscientiously reviewed the case.

Four (4) Justices of the Court maintain their position as to the unconstitutionality of
Republic Act No. 7659 in so far as it prescribes the death penalty for certain heinous
crimes; nevertheless, they submit to the ruling of the majority to the effect that the law is
constitutional and that the death penalty may be imposed in proper cases as the one at
bar.

IN VIEW WHEREFORE, we hereby resolve to DENY the petition for habeas corpus,
and declare valid the judgment rendered by the trial court and affirmed by this Court.
This resolution is final.1âwphi1.nêt

No costs.

8.Evangelista vs. Sistoza, G.R. No. 143881, August 9, 2001

G.R. No. 143881 August 9, 2001

DANILO EVANGELISTA Y SOLOMON, petitioner,

vs.
HON. PEDRO SISTOZA, DIRECTOR, BUREAU OF CORRECTIONS, MUNTINLUPA
CITY, METRO MANILA, respondent.

RESOLUTION

DE LEON, JR., J.:

Petitioner Danilo Evangelista comes to us via the instant Petition for the Issuance of a
Writ of Habeas Corpus to seek his release from imprisonment on the ground that after
giving retroactive application to the provisions of Republic Act No. 8294,1 we shall find
Page 57 of 265
that he has already served more than the maximum imposable penalty for the crimes he
has committed.

Petitioner was indicted for robbery and illegal possession of the firearm used in the
commission of the robbery before Branch 4 of the Regional Trial Court (RTC) of Manila.
After trial, petitioner was convicted of both crimes. In Criminal Case No. 92-109854 for
illegal possession of firearms, petitioner was sentenced to suffer the indeterminate
penalty of imprisonment of eighteen (18) years of reclusion temporal as minimum to
reclusion perpetua as maximum. On the other hand, the indeterminate penalty of
imprisonment of six (6) years of prision correccional as minimum to ten (10) years of
prision mayor as maximum was imposed by the trial court upon the petitioner in
Criminal Case No. 92-109710 for robbery.2

On appeal, the Court of Appeals affirmed the trial court's decision with modification, to
wit:

WHEREFORE, in view of the foregoing, with the modification that the

accused-appellant is hereby sentenced to suffer: (1) an indeterminate
penalty of imprisonment of Four (4) Years, Two (2) Months and One (1)
Day of Prision Correccional as minimum to Six (6) Years and Eight (8)
Months of Prision Mayor as maximum in Criminal Case No. 92-109710,
and (2) an indeterminate penalty of imprisonment of Twelve (12) Years,
Five (5) Months and Eleven (11) days of Prision Mayor as minimum to
Seventeen (17) Years, Four (4) Months and One (1) day of Reclusion
Temporal as maximum in Criminal Case No. 92-109854, the decision
being appealed from is AFFIRMED in all other respects.

SO ORDERED.3

On July 6, 1997, Republic Act No. 8294 took effect. The said law effectively reduced the
imposable penalty for the offense of illegal possession of firearms. Hence, for the illegal
possession of a low powered firearm such as that of the petitioner's, the penalty is now
prision correccional in its maximum period which has a duration of four (4) years, two
(2) months, and one day to six (6) years, and a fine of not less than Fifteen Thousand
Pesos (P15,000.00).4 It is the retroactive application of this provision of law which
petitioner seeks to forward his cause. Thus, petitioner contends that the penalty of
imprisonment imposed upon him by the trial court, as modified by the Court of Appeals,
for the offense of illegal possession of firearms has been lowered to imprisonment of
four (4) years, two (2) months and one day to six (6) years by virtue of Section 1 of
Republic Act No. 8294.

Petitioner is of the mistaken belief that the two terms of imprisonment: [1] four (4) years,
two (2) months and one day of prision correccional as minimum to six (6) years and
eight (8) months of prision mayor as maximum for the crime of robbery, and [2] four (4)
years, two (2) months and one day to six (6) years for the offense of illegal possession
of firearms, are to be served simultaneously.5 Considering that petitioner has already

Page 58 of 265
served a total of nine (9) years and three (3) months (computed with good conduct time
allowance),6 he contends that he has already served the maximum period of the two
prison terms imposed upon him, and he is, therefore, entitled to be restored to his
liberty.

We disagree. Article 70 of the Revised Penal Code is clear on the matter of service of
two or more penalties.7 When the culprit has to serve two or more penalties, he should
serve them simultaneously if the nature of the penalties will so permit; otherwise said
penalties shall be executed successively, following the order of their respective
severity.8 Terms of imprisonment must therefore be served successively. Thus, we have
held that in the service of two prison terms, the second sentence did not commence to
run until the expiration of the first.9

It stands to reason that the penalty for robbery which is imprisonment of four (4) years,
two (2) months and one day of prision correccional as minimum to six (6) years and
eight (8) Months of prision mayor as maximum has to be served by petitioner first before
service of the second sentence for illegal possession of a low powered firearm, which is
imprisonment of four (4) years, two (2) months, and one day to six (6) years, may even
commence. Thus, the maximum period of petitioner's incarceration is twelve (12) years
and eight (8) months. Petitioner's service of nine (9) years and three (3) months of the
prison terms imposed upon him is therefore not sufficient to meet the maximum period
of twelve (12) years and eight (8) months, and he cannot be released from confinement
on this basis.

Fortunately, however, petitioner can and shall be restored to his liberty in light of
recent jurisprudence, specifically this Court's ruling in People vs. Walpan
Ladjaalam y Mihajil alias "Warpan".10 which shed light on the correct interpretation of
the following provisions of Republic Act No. 8294:

"SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is

hereby further amended to read as follows:

"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or

Possession of Firearms or Ammunition or Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. — The penalty of
prision correccional in its maximum period and a fine of not less than
Fifteen Thousand Pesos (P15,000.00) shall be imposed upon any person
who shall unlawfully manufacture, deal in, acquire, dispose, or possess,
any low powered firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or machinery, tool
or instrument used or intended to be used in the manufacture of any
firearm or ammunition: Provided, That no other crime was committed.

"The penalty of prision mayor in its minimum period and a fine of Thirty
Thousand Pesos (P30,000.00) shall be imposed if the firearm is classified
as high powered firearm which includes those with bores bigger in

Page 59 of 265
 diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45
and also lesser calibered firearms but considered powerful such as caliber
.357 and caliber .22 center-fire magnum and other firearms with firing
capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested.

"If homicide or murder is committed with the use of an unlicensed firearm,

such use of an unlicensed firearm shall be considered as an aggravating
circumstance.

"If the violation of this Section is in furtherance of or incident to, or in

connection with the crime of rebellion or insurrection, sedition, or
attempted coup d'etat, such violation shall be absorbed as an element of
the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.

"xxx xxx xxx."

The Office of the Solicitor General which did not interpose any objection to this petition
is correct in pointing out that should petitioner's case be reviewed in light of recent
jurisprudence, he may be found guilty only of the crime of robbery. In other words, he
would be exonerated of the offense of illegal possession of firearm. 11 The reason for this
is our pronouncement in People vs. Walpan Ladjaalam that the accused can be
convicted of simple illegal possession of firearms, provided that no other crime was
committed by the person arrested. Conversely stated, if another crime was committed
by the accused, he cannot be convicted of simple illegal possession of firearms. Thus,
we ratiocinated:

We cannot accept either of these interpretations because they ignore the

plain language of the statute. A simple reading thereof shows that if an
unlicensed firearm is used in the commission of any crime, there can be
no separate offense of simple illegal possession of firearms. Hence, if the
"other crime" is murder or homicide, illegal possession of firearms
becomes merely an aggravating circumstance, not a separate offense.
Since direct assault with multiple attempted homicide was committed in
this case, appellant can no longer be held liable for illegal possession of
firearms.

Moreover, penal laws are construed liberally in favor of the accused. In

this case, the plain meaning of RA 8294's simple language is most
favorable to herein appellant. Verily, no other interpretation is justified, for
the language of the new law demonstrates the legislative intent to favor
the accused. Accordingly, appellant cannot be convicted of two separate
offenses of illegal possession of firearms and direct assault with attempted
homicide. Moreover, since the crime committed was direct assault and not
homicide or murder, illegal possession of firearms cannot be deemed an
aggravating circumstance.

Page 60 of 265
 xxx xxx xxx

Just as unacceptable is the interpretation of the trial court. We find no

justification for limiting the proviso in the second paragraph to murder and
homicide. The law is clear: the accused can be convicted of simple illegal
possession of firearms, provided that "no other crime was committed by
the person arrested." If the intention of the law in the second paragraph
were to refer only to homicide and murder, it should have expressly said
so, as it did in the third paragraph. Verily, where the law does not
distinguish, neither should we.

The Court is aware that this ruling effectively exonerates appellant of

illegal possession of an M-14 rifle, an offense which normally carries a
penalty heavier than that for direct assault. While the penalty for the first is
prision mayor, for the second it is only prision correccional. Indeed, the
accused may evade conviction for illegal possession of firearms by using
such weapons in committing an even lighter offense, like alarm and
scandal or slight physical injuries, both of which are punishable by arresto
menor. This consequence, however, necessarily arises from the language
of RA 8294, whose wisdom is not subject to the Court's review. Any
perception that the result reached here appears unwise should be
addressed to Congress. Indeed, the Court has no discretion to give
statutes a new meaning detached from the manifest intendment and
language of the legislature. Our task is constitutionally confined only to
applying the law and jurisprudence to the proven facts, and we have so in
this case.

xxx xxx xxx

It bears reiterating that this Court's interpretation of laws are as much a part of the law
of the land as the letters of the laws themselves. 12 Meaning, our interpretation of
Republic Act No. 8294 forms part of the said law. In view of the well-entrenched rule
that criminal laws shall be given retroactive effect if favorable to the accused, petitioner
Danilo Evangelista is deemed to have committed only the crime of robbery for which he
has already served more than the maximum period of the penalty imposed upon him.

WHEREFORE, considering that as of October 18, 2000,13 the petitioner has been
incarcerated for nine (9) years and three (3) months already, or for more than the
maximum imposable penalty for the crime of robbery he committed, which is only six (6)
years and eight (8) months, the petition is hereby GRANTED. The Director of the
Bureau of Corrections is hereby ORDERED to immediately RELEASE from confinement
petitioner DANILO EVANGELISTA y SOLOMON unless further detention is justified by
other lawful cause, and to inform this Court of the action taken therein within five (5)
days from receipt hereof.

SO ORDERED.

Page 61 of 265
 Retroactive effect of favorable law
9.People vs. Caco, G.R. No.s. 94994-95, March 7, 1997

G.R. Nos. 94994-95 May 14, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LILIBETH CACO y PALMARIO and TEODORO CACO y LAPADA, accused.

LILIBETH CACO y PALMARIO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Mariano L. Ordoñez III for accused-appellant.

DAVIDE, JR., J.:

Accused spouses Teodoro and Lilibeth Caco were charged with the violation of
Section 4, Article II of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as
amended, in an Information filed on 27 February 1990 with Branch 172 of the Regional
Trial Court of Valenzuela, Metro Manila. The accusatory portion thereof reads:

That on or about the 23rd day of February 1990, in the municipality of

Valenzuela, Metro Manila, Philippines, and within the jurisdiction oof this
Honorable Court, the above-named accused conspiring, confederating
and mutually helping each other, without authority of law, did then and
there wilfully, unlawfully and feloniously sell, deliver, dispatch in transit and
transport ten (10) sticks of marijuana cigarettes, which is a prohibited
drug. 1

The case was docketed as Criminal Case No. 10108-V-90.

On the same date, another information for the violation of Section 27, Article IV of the
said Act was filed with the same court against Mercia Bayonito, Rosemarie Reyes,
Corazon de la Cruz, Annabelle Castillo and Linda Caco. The said persons allegedly
smoked marijuana while gathered as a group in the house of the spouses Teodoro
and Lilibeth Caco. The case was docketed as Criminal Case No. 10106-V-90. 2

Both cases were consolidated and jointly tried.

Page 62 of 265
After all of the accused had entered a plea of not guilty during their arraignment, trial on
the merits ensued. The witnesses presented by the prosecution were Pat. Wilfredo
Quillan, Pat. Rafael Tamayo and Constancia Franco. The witnesses for the defense
were the accused Mercia Bayonito and Corazon de la Cruz in Criminal Case No. 10106-
V-90, accused Lilibeth Caco in Criminal Case No. 10108-V-90, and Barangay Captain
Ruperto Sabile, Jr.

On 13 August 1990, the trial court promulgated a joint decision 3 in the above cases
acquitting all the accused in Criminal Case No. 10106-V-90 and the accused Teodoro
Caco in Criminal Case No. 10108-V-90 but convicting the accused Lilibeth Caco in
the latter. The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing, the Court in Criminal Case No.

10106-V-90 finds all the accused namely Mercia Bayonito y Biazon,
Rosemarie Reyes y Sabayan, Corazon de la Cruz y Cruz, Annabelle
Castillo y Cruz and Linda Caco y Lapada not guilty of the crime charged
on ground of reasonable doubt. In Criminal Case No. 10108-V-90, the
Court finds Teodoro Caco not guilty of the crime charged because of
reasonable doubt. The Court finds Lilibeth Caco y Palmario guilty beyond
reasonable doubt of the crime charged and is hereby sentenced to suffer
the penalty of life imprisonment, and a fine of Twenty Thousand without
subsidiary imprisonment in case of inslovency, and to pay the costs. The
bail bonds posted by all the accused in Civil (sic) Case No. 10106-V-90
are hereby ordered cancelled. The Jail Warden of Valenzuela is hereby
ordered to release Teodoro Caco from confinement unless held for any
lawful cause. All the sticks of marijuana are hereby ordered forfeited in
favor of the government.

SO ORDERED. 4

Said conviction is based on the following findings and conclusion of the trial
court:

Anent Criminal Case No. 10108-V-90 the Court has found the following
facts and arrived at the following conclusions:

The Court heard the testimonies of both police officers and saw their
demeanor, and read the contents of their joint affidavit that Lilibeth Caco
received from Pat. Wilfredo Quillan the P20.00, went inside the house and
when she came out she gave to Pat. Wilfredo Quillan 10 sticks of
marijuana, which were proven by the prosecution to be marijuana. The
testimony and written allegations of Pat. Rafael Tamayo that he peeped
through the hole and saw Lilibeth hand to Teodoro Caco the money and
the latter "may kinuha sa kaning kuarto" cannot be taken against Teodoro
Caco because as stated above said hole was not proven to exist and it is
not categorically proven as to what Teodoro Caco hand (sic) to Lilibeth

Page 63 of 265
 inside the house. It was Lilibeth who was proven to have received the
money and who was proven to have handed to poseur buyer Pat. Quillan
the 10 sticks. Teodoro Caco was not proven successfully by the
prosecution to have participated in the sale.

The Court noted the recent jailbreak of prisoners of the Valenzuela Jail.
The accused Teodoro Caco was one of them (sic) who bolted but he
surrendered thereafter before the authorities gave chase, he, alleging that
he was threatened to be killed if he declined to join the jailbreak. The
Court takes this gesture of his in surrendering to the authority and
returning to jail while this case pends, as an indication of an innocent
person.

Since Lilibeth Caco was apprehended during the illegal act of selling
marijuana the confiscation from her house of the 89 sticks of marijuana
even without search warrant is legal, and said evidence cannot be taken
against him (sic), as pursuant to a legal arrest.

It has been held in our jurisprudence that possession of a large quantity of

such prohibited drug without evidence showing that the accused is a user,
bolsters the charge that he/she is a pusher.

Overwhelming evidence that prove (sic) the guilt of the accused Lilibeth
Caco but innocense (sic) of Teodoro Caco in Criminal Case No. 10108-V-
90 has been presented by the accused (sic). The weak defense of Lilibeth
Caco cannot really prevail over said prosecution evidence. 5

The pertinent facts as established by the prosecution are succinctly and more lucidly
stated by the People in the Brief for the Appellee 6 as follows:

On February 23, 1990, at about 2:30 o'clock in the afternoon, Patrolman

Wilfredo Quillan received information from a civilian informant that
appellant and her husband were selling marijuana in their house at Tanke
Street, Malinta, Valenzuela, Metro Manila (pp. 2-3, tsn, March 23, 1990).

Patrolman Quillan relayed the information to Sergeant Loreto Rodriguez,

head of the Anti-Narcotics Unit. Sgt. Rodriguez formed a team to conduct
a "buy-bust" operation. He designated Patrolman Quillan to act as "poseur
buyer," giving him a marked P20.00 bill forthe purpose (p. 3, ibid.).

The group composed of Patrolman Quillan, Federico Patag, Jose

Villaseñor, Rafael Tamayo and Crisanto Zuriaga proceeded to Tanke
Street, Valenzuela, Metro Manila. The civilian informant showed them the
house of appellant (p. 4, ibid.).

Page 64 of 265
 Patrolman Quillan and Tamayo went to the house of appellant and called
for her. When appellant came out, they asked if her husband, Boy
Andeng, was there. They then told her that they wanted to buy marijuana
worth P20.00 (ibid.).

Appellant got the money and went inside. When she returned, she handed
to them ten sticks of marijuana. Thereupon, Patrolman Quillan and
Tamayo introduced themselves as police officers and signaled their
companions to approach (p. 5, ibid.).

The police went inside the house and found two rouches (sic) of marijuana
on the floor. Appellant's husband, Teodoro Caco, surrendered eighty nine
(89) more sticks of marijuana (p. 6, ibid.).

Patrolman Quillan identified the ten sticks of marijuana appellant sold to

him (Exhibits I-1 to E-10) through his initials (p. 2, tsn, May 23, 1990). He
likewise identified the 89 sticks of marijuana (Exhibit I-11 to I-99) found
inside the house of appellant through his initials on the plastic bag (ibid.).

Exhibits I-1 to I-99 were confirmed to be marijuana through chemical tests

conducted by Constancia Salonga, Supervising Forensic Chemist of the
National Bureau of Investigation (pp. 2-4, tsn, May 4,
1990). 7

Accused Lilibeth Caco, hereinafter referred to as the Appellant, seasonably appealed

from the decision and in the Resolution of 29 April 1991, this Court accepted the appeal.
8

On 28 August 1991, the appellant filed through her new lawyer, Atty. Mariano Ordoñez
II, a seven-page Appeal Brief for Accused 9 wherein she presents and discusses the
following assignment of errors:

I.

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED

WITHOUT GIVING MORE WEIGHT TO THE TESTIMONIES OF THE
PROSECUTION WITNESSES, ESPECIALLY INCONSISTENCIES
EVIDENT.

II.

THE LOWER COURT HAS NOT PROVEN THE GUILT OF THE

ACCUSED BEYOND REASONABLE DOUBT.

The formulation of the assigned errors leaves much to be desired and it is obvious that
it was done with undue haste. As worded, the first suffers from ambiguity with a shade

Page 65 of 265
of self-contradiction while the second proposes a novel rule of evidence by shifting to
the trial court the burden of proving the guilt of the accused beyond reasonable doubt.
This Court, however, will resolve the issues not on the basis of the formulation of the
assignment of errors but on the merits of the arguments proferred in support thereof.

In seeking the reversal of the decision, the appellant points out in the first assigned
errors what she perceives to be inconsistencies between the testimonies of prosecution
witnesses Quillan and Tamayo which the trial court allegedly failed to notice. According
to her, although Tamayo testified that he and Quillan introduced themselves to the
appellant when the latter went inside the house, and that the five (5) women (accused in
Criminal Case No. 10106-V-90) were just sitting down, Quillan declared that the
introduction was made before he went inside the house after the sale was made and
that the five (5) women were dancing. She then concludes that these disparities, taken
in the light of the further declaration of Tamayo that he was only one (1) meter away
from Quillan, show that Tamayo was not within the area of the appellant's house, but
somewhere else. Appellant further claims that the trial court erred in not verifying
whether there was a legitimate buy-bust operation and whether the apprehending
policemen entered the house of the appellant with a search warrant in compliance with
the mandate of the Constitution. 10

Appellant opens her discussion of the second assigned error with a reiteration of her
quaint theory that "the court was not able to prove accused's guilt beyond reasonable
doubt," hence, it committed an error in convincing her. She submits that there are
doubts on the "reasonableness of the search made on accused's house," and on the
"existence of the buy-bust operation for the lower court failed to prove that the front door
of the accused's house was either open or close." 11 As to the latter, she observes that
the prosecution's evidence tends to establish that the door was closed because the
policeman had to knock while the defense was able to prove that it was wide open. 12
Finally, she raises "a question of admissibility in evidence" of the eighty- nine (89) sticks
of marijuana allegedly voluntarily surrendered by Teodoro Caco because there was no
search warrant issued therefor, and describes the alleged surrender thereof as beyond
comprehension because she and her husband had questioned the authority of the
policemen to search their house and had demanded for a search warrant. 13

In its Brief, 14 the Appellee refutes in detail the assigned errors by showing that: (1) the
buy-bust operation was fully established in evidence, (2) the testimonies of Quillan and
Tamayo regarding it are consistent on major points, (3) the inconsistencies pointed out
refer to non-crucial details which do not detract from their overall credibility, 15 and (4)
the search and seizure in this case were made as an incident to a lawful arrest; hence,
pursuant to Section 12, Rule 126 in relation to Section 5(1), Rule 113 of the Rules of
Court, no warrant was required. 16

A thorough examination and evaluation of the records and the evidence adduced by the
prosecution does not sustain the appellant's position. Her appeal is clearly
unmeritorious.

Page 66 of 265
The claimed inconsistencies in the testimonies of Quillan and Tamayo concern minor, if
not trivial, matters. It is doctrinally settled that minor discrepancies or inconsistencies do
not impair the essential integrity of the prosecution's evidence as a whole or reflect on
the witnesses' honesty. 17 Such inconsistencies, which may be caused by the natural
fickleness of memory, even tend to strengthen rather than weaken the credibility of the
prosecution's witnesses because they erase any suspicion of rehearsed testimony. 18
The test is whether the testimonies agree on the essential facts and whether the
respective versions corroborate and substantially coincide with each other to make a
consistent and coherent whole. 19 Appellant does not even attempt to dispute the factual
infrastructure of the successful buy-bust operation as established by the evidence for
the prosecution, viz., that she received the P20.00 buy-bust money in consideration of
which she delivered to the poseur-buyer, Pat. Quillan, ten (10) sticks of marijuana. By
no stretch of the imagination can it be said that these facts were whittled down or
depreciated by the alleged inconsistencies. The "reasonable doubt" she raised
regarding the buy-bust operation is wholly unacceptable for it is based on the
paradoxical statement that "the lower court failed to prove that the front door of the
accused's house was either open or close. 20 It is not, of course, the duty of the trial
court to prove the guilt of the accused. That is the burden of the prosecution. The court's
duty is to weigh the evidence and determine if the quantum of proof required for
conviction — proof beyond reasonable doubt — is met. 21 Besides, the condition of the
door in the instantcase is entirely irrelevant to the issue of whether there was in fact a
buy-bust operation.

With respect to the legality and validity of the search and seizure conducted by the
policemen, this Court notes that no specific assignment of error is devoted to it and that
the appellant merely makes a passing reference to it in her second assigned error. Such
a paramount issue involving a sacred constitutional right certainly deserves more than
just a fleeting mention or a passing interest if indeed the appellant had a valid
grievance. The records of this case yield nothing to support such a plaint. On the
contrary, the legality and validity of the search and seizure is beyond dispute. Appellant
was caught in flagrante selling marijuana to the poseur-buyer. Under Section 5, Rule
113 of the Revised Rules of Court, she could be, as in fact she was, lawfully
arrested without a warrant because she was then committing or has just
committed a crime in the presence of the policemen. Said section provides:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private

person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed
it; and

Page 67 of 265
 (c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another. . . . 22

As an incident to the lawful arrest, the appellant could be, pursuant to Section 12,
Rule 126 of the Revised Rules of Court, "searched for dangerous weapons
or anything which may be used as proof of the commission of an offense,
without a search warrant."

In People vs.Paco, 23 this Court ruled:

Having caught the appellant in flagrante as a result of a buy-bust

operation, the policemen were not only authorized but were also under
obligation to apprehend the drug pusher even without a warrant of arrest.
And since appellant's arrest was lawful, it follows that the search made
incidental to the arrest was also valid. [Rule 126, Sec. 12, Alvero vs.
Dizon, 76 Phil. 637 (1946); People vs. Claudio, G.R. No. 72564, April 15,
1988].

Being the product of a lawful search, the eighty-nine (89) sticks of marijuana are,
therefore, admissible in evidence.

In Our jurisdiction, a buy-bust operation is a recognized means of entrapping drug

pushers. 24 Entrapment is an operation sanctioned by the Revised Penal Code. 25

The decision appealed from must perforce be affirmed as it is fully supported by the
facts and the applicable law and jurisprudence.

We end, however, with a note that We are not exactly happy at seeing a married
woman suffer the penalty of life imprisonment for drug pushing while her husband was
acquitted of the same charge. She would, thus, leave a family deprived of maternal love
and a husband divested of consortium. However, she committed an offense whose
consequences go beyond her immediate victims and in open defiance of the continuing
and relentless campaign of the Government to rid society of the drug menace and its
disastrously harmful social, economic, and even spiritual effects. It has broken the lives,
shattered the hopes and destroyed the future of thousands of our young citizens. 26 Let
her and others of her ilk know that purveyors of drugs are agents of destruction; they
deserve no less than the maximum penalty. 27

WHEREFORE, the challenged Decision of Branch 172 of the Regional Trial Court of
Valenzuela, Metro Manila in Criminal Case No. 10108-V-90 is hereby AFFIRMED in
toto, with costs against accused-appellant LILIBETH CACO y PALMARIO.

Page 68 of 265
 Habeas corpus in custody cases
10.Salientes vs. Abanilla, G.R. No. 162734, August 29, 2006
MARIE ANTONETTE ABIGAIL C. G.R. No. 162734
SALIENTES, ORLANDO B.
SALIENTES, and ROSARIO C.
SALIENTES,
Present:
Petitioners,

QUISUMBING, J., Chairperson,

CARPIO,
- versus -
CARPIO MORALES,

TINGA, and

VELASCO, JR., JJ.

LORAN S.D. ABANILLA,

HONORABLE JUDGE PEDRO
SABUNDAYO, JR., REGIONAL
TRIAL COURT, BRANCH 203,
MUNTINLUPA CITY, Promulgated:

Respondents.

August 29, 2006

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

DECISION

QUISUMBING, J.:

The instant petition assails the Decision69 dated November 10, 2003 of the Court of
Appeals in CA-G.R. SP No. 75680, which dismissed the petition for certiorari against the orders

Page 69 of 265
of the Regional Trial Court in Special Proceedings No. 03-004. Likewise assailed is the Court of
Appeals Resolution70 dated March 19, 2004 denying reconsideration.

The facts of the case are as follows:

Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C.
Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived with Marie
Antonettes parents, petitioners Orlando B. Salientes and Rosario C. Salientes. Due to in-laws
problems, private respondent suggested to his wife that they transfer to their own house, but
Marie Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was
prevented from seeing his son.

Later, Loran S.D. Abanilla in his personal capacity and as the representative of his
son, filed a Petition for Habeas Corpus and Custody,71 docketed as Special Proceedings No.
03-004 before the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial court
issued the following order:

Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the

Respondents Marie Antonette Abigail C. Salientes, Orlando B. Salientes and
Rosario C. Salientes are hereby directed to produce and bring before this Court
the body of minor Lorenzo Emmanuel Salientes Abanilla on January 31, 2003 at
1:00 oclock in the afternoon and to show cause why the said child should not be
discharged from restraint.

Let this Writ be served by the Sheriff or any authorized representative of

this Court, who is directed to immediately make a return.

SO ORDERED.72

Page 70 of 265
 Petitioners moved for reconsideration which the court denied.

Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the
same was dismissed on November 10, 2003. The appellate court affirmed the February 24, 2003
Order of the trial court holding that its January 23, 2003 Order did not award the custody of the
2-year-old child to any one but was simply the standard order issued for the production of
restrained persons. The appellate court held that the trial court was still about to conduct a full
inquiry, in a summary proceeding, on the cause of the minors detention and the matter of his
custody. The Court of Appeals ruled thus:

WHEREFORE, the petition is hereby DISMISSED for lack of merit.

SO ORDERED.73

Petitioners moved for reconsideration, which was denied on March 19, 2004.

Hence, petitioners interposed this appeal by certiorari anchored on the following grounds:

1. The Court of Appeals erred in not pronouncing the respondent judge

gravely abused his discretion, amounting to lack or in excess of
jurisdiction in issuing an order for the petitioner-mother to first show
cause why her own three-year old child in her custody should not be
discharged from a so-called restraint despite no evidence at all of restraint
and no evidence of compelling reasons of maternal unfitness to deprive
the petitioner-mother of her minor son of tender years. The assailed
orders, resolutions and decisions of the lower court and the Court of
Appeals are clearly void;

2. The Court of Appeals erred in not pronouncing that the respondent

judge gravely abused his discretion in issuing a writ of habeas corpus
which clearly is not warranted considering that there is no unlawful
restraint by the mother and considering further that the law presumes the
fitness of the mother, thereby negating any notion of such mother illegally

Page 71 of 265
 restraining or confining her very own son of tender years. The petition is
not even sufficient in substance to warrant the writ. The assailed orders are
clearly void.

3. Contrary to the Court of Appeals decision, the Sombong vs. CA case

supports rather than negates the position of the petitioners.

4. Contrary to the Court of Appeals decision, summary proceeding

does violence to the tender-years-rule

5. The Court of Appeals failed to consider that the private respondent

failed to present prima facie proof of any compelling reason of the
unfitness of the petitioner-mother;

6. The Court of Appeals failed to see that the New Rules on Custody
SUFFICES AS REMEDY.74

Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for
certiorari against the trial courts orders dated January 23, 2003 and February 24, 2003?

Petitioners contend that the order is contrary to Article 21375 of the Family Code, which
provides that no child under seven years of age shall be separated from the mother unless the
court finds compelling reasons to order otherwise. They maintain that herein respondent Loran
had the burden of showing any compelling reason but failed to present even a prima facie proof
thereof.

Petitioners posit that even assuming that there were compelling reasons, the proper
remedy for private respondent was simply an action for custody, but not habeas corpus.
Petitioners assert that habeas corpus is unavailable against the mother who, under the law, has
the right of custody of the minor. They insist there was no illegal or involuntary restraint of the
minor by his own mother. There was no need for the mother to show cause and explain the
custody of her very own child.

Page 72 of 265
 Private respondent counters that petitioners argument based on Article 213 of the Family
Code applies only to the second part of his petition regarding the custody of his son. It does not
address the first part, which pertains to his right as the father to see his son. He asserts that the
writ of habeas corpus is available against any person who restrains the minors right to see his
father and vice versa. He avers that the instant petition is merely filed for delay, for had
petitioners really intended to bring the child before the court in accordance with the new rules on
custody of minors, they would have done so on the dates specified in the January 23, 2003 and
the February 24, 2003 orders of the trial court.

Private respondent maintains that, under the law, he and petitioner Marie Antonette have
shared custody and parental authority over their son. He alleges that at times when petitioner
Marie Antonette is out of the country as required of her job as an international flight stewardess,
he, the father, should have custody of their son and not the maternal grandparents.

As correctly pointed out by the Court of Appeals, the assailed January 23, 2003
Order of the trial court did not grant custody of the minor to any of the parties but merely
directed petitioners to produce the minor in court and explain why they are restraining his
liberty. The assailed order was an interlocutory order precedent to the trial courts full
inquiry into the issue of custody, which was still pending before it.

Under Rule 41, Section 176 of the Rules of Court, an interlocutory order is not
appealable but the aggrieved party may file an appropriate special action under Rule 65. The
aggrieved party must show that the court gravely abused its discretion in issuing the interlocutory

Page 73 of 265
order. In the present case, it is incumbent upon petitioners to show that the trial court gravely
abused its discretion in issuing the order.

Habeas corpus may be resorted to in cases where rightful custody is withheld from a
person entitled thereto.77 Under Article 21178 of the Family Code, respondent Loran and
petitioner Marie Antonette have joint parental authority over their son and consequently
joint custody. Further, although the couple is separated de facto, the issue of custody has yet to
be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both
parents are still entitled to the custody of their child. In the present case, private respondents
cause of action is the deprivation of his right to see his child as alleged in his petition.79 Hence,
the remedy of habeas corpus is available to him.

In a petition for habeas corpus, the childs welfare is the supreme consideration. The
Child and Youth Welfare Code80 unequivocally provides that in all questions regarding the care
and custody, among others, of the child, his welfare shall be the paramount consideration.81

Again, it bears stressing that the order did not grant custody of the minor to any of
the parties but merely directed petitioners to produce the minor in court and explain why
private respondent is prevented from seeing his child. This is in line with the directive in

Page 74 of 265
Section 982 of A.M. 03-04-04-SC83 that within fifteen days after the filing of the answer or the
expiration of the period to file answer, the court shall issue an order requiring the respondent
(herein petitioners) to present the minor before the court. This was exactly what the court did.

Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody
and serves as a guideline for the proper award of custody by the court. Petitioners can raise it as a
counter argument for private respondents petition for custody. But it is not a basis for preventing
the father to see his own child. Nothing in the said provision disallows a father from seeing or
visiting his child under seven years of age.

In sum, the trial court did not err in issuing the orders dated January 23, 2003 and
February 24, 2003. Hence, the Court of Appeals properly dismissed the petition for certiorari
against the said orders of the trial court.

WHEREFORE, the petition is DENIED. The Decision dated November 10, 2003 and
the Resolution dated March 19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 are
AFFIRMED. Costs against petitioners.

SO ORDERED.

11.Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009

Page 75 of 265
G.R. No. 166470 August 7, 2009

CECILIO C. HERNANDEZ, MA. VICTORIA C. HERNANDEZ-1 and NATIVIDAD

CRUZ-HERNANDEZ, Petitioners,
vs.
JOVITA SAN JUAN-SANTOS, Respondent.

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

G.R. No. 169217

CECILIO C. HERNANDEZ, MA. VICTORIA C. HERNANDEZ-SAGUN and TERESA C.

HERNANDEZ-VILLA ABRILLE, Petitioners,
vs.
JOVITA SAN JUAN-SANTOS,2 Respondent.

DECISION

CORONA, J.:

Maria Lourdes San Juan Hernandez (or Lulu) was born on February 14, 1947 to the
spouses Felix Hernandez and Maria San Juan Hernandez. Unfortunately, the latter died
due to complications during childbirth. After Maria's death, Felix left Lulu in the care of
her maternal uncle, Sotero C. San Juan.

On December 16, 1951, Felix married Natividad Cruz. The union produced three
children, petitioners Cecilio C. Hernandez, Ma. Victoria C. Hernandez-Sagun and
Teresa C. Hernandez-Villa Abrille.

Meanwhile, as the only child of Maria and the sole testate heir of Sotero, Lulu inherited
valuable real properties from the San Juan family (conservatively estimated at P50
million in 1997).

Sometime in 1957, Lulu went to live with her father and his new family. She was then 10
years old and studying at La Consolacion College. However, due to her "violent
personality," Lulu stopped schooling when she reached Grade 5.

In 1968, upon reaching the age of majority, Lulu was given full control of her estate. 3
Nevertheless, because Lulu did not even finish her elementary education, Felix
continued to exercise actual administration of Lulu’s properties. Upon Felix's death in
1993, petitioners took over the task of administering Lulu's properties.

During the period of their informal administration (from 1968 until 1993), Felix and
petitioners undertook various "projects" involving Lulu’s real properties. In 1974, Felix
allegedly purchased one of Lulu’s properties for an undisclosed amount to develop the
Marilou Subdivision.4 In 1995, Ma. Victoria informed Lulu that her 11-hectare

Page 76 of 265
Montalban, Rizal property5 was under litigation. Thus, Lulu signed a special power of
attorney6 (SPA) believing that she was authorizing Ma. Victoria to appear in court on her
behalf when she was in fact unknowingly authorizing her half-sister to sell the said
property to the Manila Electric Company for P18,206,400.7 Thereafter, Cecilio asked
Lulu to authorize him to lease her 45-hectare property in Montalban, Rizal to Oxford
Concrete Aggregates for P58,500 per month so that she could have a car and driver at
her disposal.

In September 1998, Lulu sought the assistance of her maternal first cousin, respondent
Jovita San Juan-Santos, after learning that petitioners had been dissipating her estate.
She confided to Jovita that she was made to live in the basement of petitioners’
Montalban, Rizal home and was receiving a measly daily allowance of P400 for her food
and medication.

Respondent was appalled as Lulu was severely overweight, unkempt and smelled of
urine. She later found out that Lulu was occupying a cramped room lit by a single
fluorescent lamp without running water. Since she had not been given a proper toilet,
Lulu urinated and defecated in the garden. Due to Lulu's poor hygiene, respondent
brought her to several physicians for medical examination. Lulu was found to be
afflicted with tuberculosis, rheumatism and diabetes from which she was suffering
several complications.8

Thereafter, the San Juan family demanded an inventory and accounting of Lulu’s estate
from petitioners.9 However, the demand was ignored.

On October 2, 1998, respondent filed a petition for guardianship10 in the Regional

Trial Court (RTC) of San Mateo, Rizal, Branch 76. She alleged that Lulu was
incapable of taking care of herself and managing her estate because she was of weak
mind.

Subsequently, petitioners moved to intervene in the proceedings to oppose the same.

Natividad denied that Marilou Subdivision belonged to Lulu. Since she and her late
husband were the registered owners of the said property, it was allegedly part of their
conjugal partnership.

Cecilio, Teresa and Ma. Victoria, for their part, claimed that the issue of Lulu’s
competency had been settled in 1968 (upon her emancipation) when the court ordered
her legal guardian and maternal uncle, Ciriaco San Juan, to deliver the properties for
her to manage.

They likewise asserted that Lulu was literate and, for that reason, aware of the
consequences of executing an SPA. Furthermore, whether or not Cecilio and Ma.
Victoria acted within the scope of their respective authorities could not be determined in
a guardianship proceeding, such matter being the proper subject of an ordinary civil
action.

Page 77 of 265
Petitioners also admitted that the property developed into the Marilou Subdivision was
among those parcels of land Lulu inherited from the San Juan family. However,
because the "sale" between Felix and Lulu had taken place in 1974, questions
regarding its legality were already barred by the statute of limitations. Thus, its validity
could no longer be impugned, or so they claimed.

During the hearing, Lulu was presented and asked to testify on her genealogy and
experiences with the San Juan and Hernandez families. Lulu identified and described
her parents, stepmother, half-siblings and maternal relatives. She claimed inheriting
tracts of land from the San Juan family. However, these properties were dissipated by
the Hernandez family as they lived a "luxurious" lifestyle. When asked to explain this
allegation, Lulu said that her stepmother and half-siblings rode in cars while she was
made to ride a tricycle.

Medical specialists testified to explain the results of Lulu’s examinations which revealed
the alarming state of her health.11 Not only was Lulu severely afflicted with diabetes
mellitus and suffering from its complications,12 she also had an existing artheroselorotic
cardiovascular disease (which was aggravated by her obesity). Furthermore, they
unanimously opined that in view of Lulu’s intelligence level (which was below average)
and fragile mental state, she would not be able to care for herself and self-administer
her medications.

In a decision dated September 25, 2001,13 the RTC concluded that, due to her weak
physical and mental condition, there was a need to appoint a legal guardian over
the person and property of Lulu. Thus, it declared Lulu an incompetent and appointed
respondent as guardian over the person and property of Lulu on a P1 million bond.

Petitioners moved for reconsideration asserting that the P1 million bond was grossly
insufficient to secure Lulu’s P50-million estate against fraudulent loss or dissipation. 14
The motion, however, was denied.15

On July 2, 2002, petitioners appealed the September 25, 2001 decision of the RTC to
the Court of Appeals (CA).16 The appeal was docketed as CA-G.R. CV No. 75760.

On December 29, 2004, the CA issued a decision affirming the September 25, 2001
decision of the RTC (in the petition for guardianship) in toto.17 It held that respondent
presented sufficient evidence to prove that Lulu, because of her illnesses and low
educational attainment, needed assistance in taking care of herself and managing her
affairs considering the extent of her estate. With regard to the respondent’s appointment
as the legal guardian, the CA found that, since Lulu did not trust petitioners, none of
them was qualified to be her legal guardian.1avvphi1 Because guardianship was a trust
relationship, the RTC was bound to appoint someone Lulu clearly trusted.

Petitioners now assail the December 29, 2004 decision of the CA in this Court in a
petition for review on certiorari docketed as G.R. No. 166470.18

Page 78 of 265
Meanwhile, Lulu moved into 8 R. Santos St., Marikina City (Marikina apartment) and
was provided with two housemaids tasked to care for her. Sometime in November 2003,
Lulu was abducted from her Marikina apartment. Jovita immediately sought the
assistance of the Police Anti-Crime Emergency Response (PACER) division of the
Philippine National Police.

The PACER subsequently discovered that petitioners were keeping Lulu somewhere in
Rodriguez, Rizal. Despite their initial hostility to the investigation, Ma. Victoria and
Cecilio subsequently contacted the PACER to inform them that Lulu voluntarily left with
Natividad because her guardian had allegedly been maltreating her.19

On December 15, 2003, respondent filed a petition for habeas corpus20 in the CA
alleging that petitioners abducted Lulu and were holding her captive in an
undisclosed location in Rodriguez, Rizal.

On April 26, 2005, the CA granted the petition for habeas corpus, ruling that Jovita,
as her legal guardian, was entitled to her custody. 21

Petitioners moved for the reconsideration of the said decision but it was denied in a
resolution dated July 12, 2005.22 Aggrieved, they filed this petition for review on
certiorari docketed as G.R. No. 169217. This was consolidated with G.R. No. 166470.

The basic issue in petitions of this nature is whether the person is an incompetent who
requires the appointment of a judicial guardian over her person and property.

Petitioners claim that the opinions of Lulu's attending physicians 23 regarding her mental
state were inadmissible in evidence as they were not experts in psychiatry. Respondent
therefore failed to prove that Lulu's illnesses rendered her an incompetent. She should
have been presumed to be of sound mind and/or in full possession of her mental
capacity. For this reason, Lulu should be allowed to live with them since under Articles
194 to 196 of the Family Code,24 legitimate brothers and sisters, whether half-blood or
full-blood are required to support each other fully.

Respondent, on the other hand, reiterated her arguments before the courts a quo. She
disclosed that Lulu had been confined in Recovery.com, a psychosocial rehabilitation
center and convalescent home care facility in Quezon City, since 2004 due to violent
and destructive behavior. She also had delusions of being physically and sexually
abused by "Boy Negro" and imaginary pets she called "Michael" and "Madonna." 25 The
November 21, 2005 medical report26 stated Lulu had unspecified mental retardation with
psychosis but claimed significant improvements in her behavior.

We find the petition to be without merit.

Under Section 50, Rule 103 of the Rules of Court, an ordinary witness may give his
opinion on the mental sanity of a person with whom he is sufficiently acquainted. 27
Lulu's attending physicians spoke and interacted with her. Such occasions allowed them

Page 79 of 265
to thoroughly observe her behavior and conclude that her intelligence level was below
average and her mental stage below normal. Their opinions were admissible in
evidence.

Furthermore, where the sanity of a person is at issue, expert opinion is not necessary. 28
The observations of the trial judge coupled with evidence 29 establishing the person's
state of mental sanity will suffice.30 Here, the trial judge was given ample opportunity to
observe Lulu personally when she testified before the RTC.

Under Section 2, Rule 92 of the Rules of Court,31 persons who, though of sound mind
but by reason of age, disease, weak mind or other similar causes are incapable of
taking care of themselves and their property without outside aid, are considered as
incompetents who may properly be placed under guardianship. The RTC and the CA
both found that Lulu was incapable of taking care of herself and her properties without
outside aid due to her ailments and weak mind. Thus, since determining whether or not
Lulu is in fact an incompetent would require a reexamination of the evidence presented
in the courts a quo, it undoubtedly involves questions of fact.

As a general rule, this Court only resolves questions of law in a petition for review. We
only take cognizance of questions of fact in exceptional circumstances, none of which is
present in this case.32 We thus adopt the factual findings of the RTC as affirmed by the
CA.1avvph!1

Similarly, we see no compelling reason to reverse the trial and appellate courts’
finding as to the propriety of respondent's appointment as the judicial guardian of
Lulu.33 We therefore affirm her appointment as such. Consequently, respondent is
tasked to care for and take full custody of Lulu, and manage her estate as well. 34

Inasmuch as respondent’s appointment as the judicial guardian of Lulu was

proper, the issuance of a writ of habeas corpus in her favor was also in order.

A writ of habeas corpus extends to all cases of illegal confinement or detention or by

which the rightful custody of person is withheld from the one entitled thereto. 35
Respondent, as the judicial guardian of Lulu, was duty-bound to care for and protect her
ward. For her to perform her obligation, respondent must have custody of Lulu. Thus,
she was entitled to a writ of habeas corpus after she was unduly deprived of the custody
of her ward.36

WHEREFORE, the petitions are hereby DENIED.

Petitioners are furthermore ordered to render to respondent, Lulu’s legal guardian, an

accurate and faithful accounting of all the properties and funds they unlawfully
appropriated for themselves from the estate of Maria Lourdes San Juan Hernandez,
within thirty (30) days from receipt of this decision. If warranted, the proper complaints
should also be filed against them for any criminal liability in connection with the

Page 80 of 265
dissipation of Maria Lourdes San Juan Hernandez’s estate and her unlawful abduction
from the custody of her legal guardian.

Treble costs against petitioners.

SO ORDERED.

A.M No. 03-04-04-SC

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUSIN
RELATION TO CUSTODY OF MINORS

Who may file petition for custody of a minor

Protection Order:
12.Araneta vs. Araneta, G.r. No. 190814, October 9, 2013

G.R. No. 190814 October 9, 2013

MICHELLE LANA BROWN- ARANETA, for herself and representing her minor
daughters, ARABELLA MARGARITA B. ARANET A and A V ANGELINAMYKAELA
B. ARANETA, Petitioners,
vs.
JUAN IGNACIO ARANETA, Respondent.

DECISION

VELASCO, J.:

The Case

Assailed and sought to be set aside in this Petition for Review on Certiorari under Rule
45 are the May 11, 2009 Decision1 of the Court of Appeals (CA) in CA-G .R. SP No.
105442 and its Resolution2 of December28, 2009 denying petitioner's motion for
reconsideration of said decision.

The assailed decision ordered the dismissal of Civil Case No. 08-023 of the Regional
Trial Court (RTC), Branch 207 in Muntinlupa City and nullified all the issuances it made
in that case, a petition for protection order under Republic Act No. (RA) 9262, otherwise
known as the Anti-Violence Against Women and Their Children Act of 2004,
commenced by petitioner Michelle Lana Brown-Araneta (Michelle) against respondent
Juan Ignacio Araneta (Juan Ignacio) before that court.

The facts

Page 81 of 265
On April 14, 2000, Juan Ignacio and Michelle were married in Las Vegas, Nevada, USA.
The union produced two (2) children, namely: Arabella Margarita (Ara) and Avangelina
Mykaela (Ava), born on February 22, 2003 and April 15, 2005, respectively. After a little
over seven years of disharmonious relationship, husband and wife separated. Since the
couple’s estrangement and de facto separation, Ara and Ava have remained in
Michelle’s custody.

In November 2007 before the RTC of Makati City, Juan Ignacio filed, pursuant to
A.M. No. 03-04-04-SC3 or The Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors (Rule on Custody of Minors), a Petition
for the Custody of the Minors Arabella Margarita Araneta and Avangelina Mykaela
Araneta (Petition for Custody), with prayer for visitation rights against Michelle
and her mother, Glenda B. Santos (Santos). Docketed as SP PROC. Case No. M-
6543, this petition was eventually raffled to Branch 60 of the Makati City RTC (Makati
RTC), presided over by Judge Marissa Macaraig-Guillen (Judge Macaraig-Guillen).

1. Immediately issue a Provisional Order granting [him]visitation rights with

respect to the minors [Ava and Ara] x x x during the pendency of these
proceedings;

2. Immediately issue an ex parte Hold Departure Order preventing the

departure of [both] minors x x x from the country; and

3. After appropriate proceedings, render judgment granting him joint

custody, or alternatively, granting him permanent visitation rights, over
both his legitimate children x x x.4

To facilitate service of summons, Juan Ignacio, via a Motion and Urgent Manifestation
of November 27, 2007, would inform the Makati RTC that Michelle and Santos may
have transferred to No. 408 Anonas Street, Ayala Alabang Village, Muntinlupa City
(Anonas residence), an address different from what he provided in his basic petition,
referring to the Molave Drive residence in the same village. In her Officer’s Return dated
December 10, 2007,5 process server Linda Fallorin stated the following: (1) she initially
attempted to serve the summons upon Michelle and Santos on December 7,2007 at the
Anonas residence, only to be told by one Roberto Anonas, who refused to receive the
summons, that both were out at that time; and (2) on December 10, 2007, she was
finally able to serve the summons upon Michelle and Santos by substituted service
through the driver of Santos’ husband.

On December 18, 2007, Juan Ignacio moved for the issuance of provisional visitorial
order. After a hearing on this motion, the Makati RTC issued on December 21, 2007 an
Order7 allowing Juan Ignacio to visit her daughters on Christmas Day and New Year’s
Day. The visiting grant came after the court, taking stock of the Officer’s Return,
declared that it has acquired jurisdiction over the person of Michelle, but despite being
given the opportunity to file a responsive pleading, she has failed to do so.

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Christmas and New Year’s Day 2008 came and went, but Juan Ignacio was unable to
see his little girls in those days for reasons of little materiality to this narration.

On January 2, 2008, Michelle filed in SP PROC. Case No. M-6543 a Motion to Admit
Answer and an Answer (with Affirmative Defenses and With Very Urgent Ex-Parte
Motion for Issuance of Protection Order).8

In her Motion to Admit Answer, Michelle acknowledged learning from her mother about
the delivery of the summons and a copy of the petition for custody to their Anonas
Residence. She, however, disregarded said summons thinking, so she claimed, that it
was improperly served upon her person. It was, she added, only upon learning of the
issuance of the provisional order of visitation rights that she gathered enough courage
to come out to present her side.9

In her Answer, on the other hand, Michelle owned up sole responsibility for the decision
not to allow her husband to see their daughters. In support of her plea for the dismissal
of his petition for custody, the denial of visitation rights pendente lite, and in the
meanwhile the ex parte issuance in her favor of a temporary protection order (TPO), 10
she recounted in lurid details incidents characterizing the painful life she and her
children allegedly had to endure from her husband whom she tagged as a drug user,
sexual pervert, emotionally unstable and temperamental, among other names. In her
words, Juan Ignacio’s "wild, decadent, irresponsible lifestyle makes him unfit to exercise
parental authority and even enjoy visitation rights."11

During the January 4, 2008 hearing on Michelle’s prayer for a TPO, Judge Macaraig-
Guillen expressed her bent to maintain her jurisdiction over SP PROC. Case No. M-
6543 and her disinclination to issue the desired TPO. In her Order of even date, she
directed that the ensuing observations she earlier made be entered into the records:

1. She is not inclined to issue a [TPO] in favor of respondent at this time

because she initially questioned the jurisdiction of this Court over her
person and only resorted to this Urgent Ex-Parte Motion for a Protective
Order after she realized that the Court had every intention of maintaining
jurisdiction over this case x x x. It was emphasized that the Court does not
issue Protective Orders over a person who has not bothered to appear in
Court x x x. Until the respondent herself shows up in order to recognize
the jurisdiction of this Court over her and in order to substantiate the
allegations in her Urgent Motion, there is no basis for this Court to address
the matters contained in the said Urgent Ex-Parte Motion.

2. Secondly, x x x even assuming for the sake of argument that the

petitioner is, as respondent described him to be, temperamental, violent, a
habitual drug user and a womanizer, these qualities cannot, per se,
prevent him from exercising visitation rights over his children because
these are rights due to him inherently, he being their biological father. 12

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During the same hearing, the Makati RTC granted Juan Ignacio visitation rights on
one (1) Saturday and Sunday in January 2008 considering that he was unable to
see his children on the days granted under the December 21, 2007 Order.

Subsequently, by its Order of January 21, 2008, as would later be effectively reiterated
by another Order 13 of March 7, 2008, the Makati RTC resolved to deny admission of
Michelle’s answer to the petition for custody and declared her in default, pertinently
disposing thusly:

WHEREFORE, in view of the foregoing, respondent Araneta’s Motion to Admit Answer

of January 2, 2008 is herein DENIED for lack of merit.

Because of respondent Araneta’s failure to file her responsive pleading within the
reglementary period, x x x respondent Araneta isherein declared in DEFAULT in this
proceedings.

As a consequence of this ruling, x x x the petitioner is allowed to present evidence ex-

parte to substantiate the allegation in his Petition x x x.14

On January 21, 2008 also, Michelle interposed a Motion to Withdraw Urgent Ex-Parte
Motion for Protective Order, there pointing out that no right of Juan Ignacio, if any, will
be affected if the said urgent motion is withdrawn or expunged from her answer. And
obviously to sway the Makati RTC’s mind of the resulting insignificance of such
withdrawal, if approved, Michelle cited the ensuing observation thus made by the court
during the hearing on January 4, 2008:

COURT:

Well, I agree, she should really appear but whether or not she should really appear here
and substantiate her allegations for the issuance of a protective order as far as I am
concerned is irrelevant insofar as the enforcement of petitioner’s visitation rights are
concerned, this case is for custody, this is not a case for the issuance of protective
orders that is only a counter manifestation that she is seeking.15

It is upon the foregoing set of events and proceedings that Michelle, on March 25, 2008,
instituted, pursuant to RA 9262, a Petition For Temporary and Permanent Protection
Order16 (Petition for Protection Order) before the RTC in Muntinlupa City, docketed as
Civil Case No. 08-023.Thereat, Michelle claimed, among other things, that in the course
of their marriage, Juan Ignacio made her and their children engage in sexual acts
inimical to their emotional, physical and psychological development and well-being; that
he engaged in perverted sexual acts with friends, victimizing her and the children; that
he has consistently failed and refused to support their family; and that he has a violent
temper and was consistently harassing and threatening her to get sole custody of the
children. Michelle volunteered the information that, per her therapist, she is suffering
from Battered Woman’s Syndrome.17

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In the verification portion of her petition for protection order, Michelle stated that "there
is x x x a pending petition for the custody of our children in the [RTC] Br. 60, Makati
City, x x x Civil Case No. M-6543."18

The following events and proceedings then transpired:

1. On March 31, 2008, the Muntinlupa RTC granted Michelle’s prayer for a
TPO which, at its most basic, ordered Juan Ignacio (1) to stay away at a
specified distance from Michelle and the children, inclusive of their present
residence and other places they frequent; and (2) to desist from calling or
otherwise communicating with Michelle.

(2) On April 14, 2008, Juan Ignacio filed in Civil Case No. M-6543 a
"Motion to Dismiss Petition with Prayer to Lift [TPO]" 19 anchored on
several grounds, foremost of which are the following: (a) litis pendentia,
Juan Ignacio noting in this regard that the Makati RTC is competent to
grant in its SP PROC. Case No. M-6543 the very same reliefs Michelle
seeks in Civil Case No. M-6543, pursuant to Sections 17 and 18 of the
Rule on Custody of Minors;20 (b) in view of item (a) above, the Makati
RTC, having first assumed jurisdiction over identical subject matters,
issues and parties, does so to the exclusion of the Muntinlupa RTC; and
(c) Michelle’s act of filing her petition for protection order before the
Muntinlupa RTC constitutes, under the premises, forum shopping, a
practice proscribed owing to the possibility of different courts arriving at
conflicting decisions. Juan Ignacio would in fact stress that the TPO thus
issued by the Muntinlupa RTC directing him to stay at least a kilometer
away from his children already conflicted with the Makati RTC-issued
provisional orders granting him visitation rights over them.

(3) By Order of May 12, 2008, the Muntinlupa RTC, conceding the
exclusionary effect of the assumption at the first instance by the Makati
RTC of jurisdiction on the issue of custody on Ava and Ara and the
likelihood of the issuance by either court of clashing decisions, partially
granted Juan Ignacio’s motion to dismiss and accordingly modified the
TPO issued on March 31, 2008. As thus modified, the protection order, or
to be precise, the reliefs provided in favor of Michelle in said TPO shall
exclude from its coverage the orders issued by the Makati RTC in the
exercise of its jurisdiction on the pending custody case.

In another Order of June 30, 2008, the Muntinlupa RTC denied Juan
Ignacio’s Motion for Reconsideration of the earlier May 12, 2008 Order on
the ground that such a motion is a prohibited pleading.21

(4) Meanwhile, Michelle, in connection with certain orders of the Makati

RTC in the custody case, denying her motion to admit answer and its

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 jurisdictional issue pronouncements, went to the CA on certiorari via a
petition docketed as CA-G.R. SP No. 103392.

On August 28, 2008, in CA-G.R. SP No. 103392, the CA rendered a judgment finding
partly for Michelle, as petitioner, it being the appellate court’s determination that
the substituted service of summons upon her in the custody suit was defective
and irregular. Accordingly, the period within which Michelle was to file an answer, so
the CA declared, did not start to run and, hence, the denial by the Makati RTC of her
motion to admit answer in the custody case and corollarily, its holding that she is in
default, by virtue of its Orders dated January 21, 2008 and March 7, 2008, were
unwarranted and ought to be nullified. Neither of the parties appealed the foregoing
Decision. The CA Decision, thus, became final. The fallo of the said CA Decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby PARTLY

GRANTED. Accordingly, the assailed Orders of 21January 2008 and 7 March 2008 are
REVERSED and SET ASIDE while the Orders of 29 February 2008 and 31 March 2008,
in so far as the denial of petitioner’s Motion for Inhibition is concerned, are AFFIRMED.
No costs.

SO ORDERED.22

Partly, the CA wrote:

x x x The pivotal issue x x x is whether the Makati RTC had acquired jurisdiction over
the person of the petitioner, and if so, whether the disposition of the respondent Makati
RTC judge in declaring her in default has factual and legal basis. Admittedly, the
summons and the copy of the petition were not personally served upon the petitioner as
explicitly required under Section 5 of A.M. No. 03-04-04-SC x x x.

Indeed, the records would show that the summons and the petition were served upon
the petitioner x x x by substituted service as they were received by x x x a certain Nilo
Santos at said Anonas residence, an address belatedly supplied by private respondent
himself. However, x x x petitioner had actually been informed of such substituted
service sometime in the second week of December 2007 and that she had opted to
simply disregard the same since she had thought that such service is invalid x x x.

Despite the fact that she had known of the existence of the petition a quo and the fact
that the service of summons had been made upon her by substituted service, petitioner
made a decision whether it be an informed one or not, not to move for its dismissal on
the ground of lack of jurisdiction over her person x x x. It was only upon the issuance of
the Provisional Order that she had opted to participate in the proceeding by filing her
responsive pleading to the petition. Unfortunately though, the respondent Makati RTC
judge denied her motion to admit and declared her in default on the basis of its
disquisition that the failure of the petitioner to file her responsive pleading is not due to
excusable negligence or other circumstances beyond her control.

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Still and all, it cannot be denied that the trial court, previous to or at the time the
petitioner had filed her responsive pleading, has yet to acquire jurisdiction over the
person of the latter. The Rule on Custody of Minors specifically requires that service of
summons be made personally on the respondent and yet the trial court served the same
upon the person of the petitioner by substituted service without proof of exhaustion of
means to personally serve the same or the impossibility thereof to warrant the
extraordinary method of substituted service.

Surely, while the Rule on Custody of Minors provides that the Rules of Court shall apply
suppletorily in custody proceedings, the express provision requiring personal service
and the very nature of custody cases should have caused the respondent judge x x x to
adhere to the evident intention of the rules, that is to have both parties in a custody case
participate therein.

Regrettably, the respondent judge, relying on the Officer’s Return x x x, precipitately

declared x x x that the trial court had already acquired jurisdiction over the person of the
petitioner. x x x

Sadly though, respondent judge, in grave abuse of discretion, assumed jurisdiction over
the person of the petitioner and proceeded to act on the petition. Worse, x x x the
respondent judge denied the motion to admit filed by the petitioner and declared the
latter in default. While the petitioner had already submitted herself to the jurisdiction of
the trial court by way of her voluntary act of filing a responsive pleading to the petition a
quo, the period to file said responsive pleading, as already stated, in so far as the
petitioner is concerned has yet to commence, and thus, the filing of her motion to admit
answer cannot plausibly be considered as to have been filed beyond the reglementary
period. In this light, the denial of said motion and the issuance of the default order are
unwarranted and are reversible errors of jurisdiction x x x.23 (Emphasis added.)

(5) From the adverse May 12, 2008 and June 30, 2008 Orders of the Muntinlupa RTC in
Civil Case No. M-6543, Juan Ignacio also repaired to the CA on a petition for certiorari.
Docketed as CA-G.R. SP. No. 105442, the petition prayed that the Muntinlupa RTC be
enjoined from further taking cognizance of Michelle’s protection order petition as the
said case will infringe or intrude upon the Makati RTC’s disposition of the custody
case.24

Michelle opposed and sought the dismissal of the certiorari petition on the ground that it
is a prohibited pleading under Sec. 22(j) of RA 9262.

Eventually, the CA issued, on May 11, 2009, the assailed Decision which, on one hand,
found Michelle guilty of forum shopping, a sufficient cause for summary dismissal of a
case, but viewed, on the other, Juan Ignacio’s petition for certiorari as a prohibited
pleading which, ordinarily, would then render it dismissible. In the veritable clash under
the premises of the effects of forum shopping and the rule on prohibited pleading, the
CA nonetheless ruled for Juan Ignacio, as petitioner, pertinently disposing as follows:

Page 87 of 265
ACCORDINGLY, the petition is GIVEN DUE COURSE. Civil Case No. 08-023 is
ORDERED DISMISSED and all issuances made by RTC, Branch 207, Muntinlupa City,
are declared void. The RTC Branch 60, Makati City is DIRECTED to proceed with the
case with dispatch.25

The CA extricated itself from the foregoing legal bind on the basis of the following
ratiocination and the plausible suppositions interjected thereat:

In resolving the present petition, the Court had to consider two (2) things. First, pursuant
to Section 22 (j) of A.M. No. 04-10-11-SC, a petition for certiorari against any
interlocutory order issued by a family court is a prohibited pleading. Accordingly, if this
Court were to strictly follow [said] Section 22 (j) x x x, then the present petition for
certiorari must be dismissed. Second, the Private Respondent had first moved that the
Makati RTC issue a TPO and that when her motion was denied, she filed a petition
before the Muntinlupa RTC asking that the said court issue a TPO. In short, the Private
Respondent committed forum-shopping. And when forum-shopping is committed, the
case(s) must be dismissed with prejudice.

Thus, it falls upon this Court to balance the conflict.

This Court notes that the Muntinlupa RTC tried to balance out the conflicting
jurisdictional issues with the Makati RTC by stating in its first assailed Order that the
reliefs provided in favor of herein private respondent in the TPO x x x are modified, to
exclude from its coverage those Orders issued by the Makati Court in the exercise of its
jurisdiction on the pending custody case. Be that as it may, the Muntinlupa RTC itself
recognized the jurisdiction of the Makati RTC and that the case before it would, in fact,
impinge upon the jurisdiction of the latter court when it stated that the disposition on the
matter by this Court may result in the possibility of conflicting decisions/orders. In short,
the Muntinlupa RTC itself acknowledges the fact that any future issuances, including its
eventual decision on the petition before it, would affect the custody case pending before
the Makati RTC and might even result to conflicting decisions.

Thus, in the interest of judicial stability, it is incumbent upon this Court to ensure that
this eventuality will not come to pass.

xxxx

To test the argument that a petition for certiorari is an absolutely prohibited pleading, let
us push the present case to its logical extreme.

What if a woman claiming to be a battered wife leaves one of her children with her
parents and another with a sibling of hers? She then went to another place, transferred
residency, and filed a petition for TPO. Her parents and sibling, who reside in another
locality, likewise files a petition for TPO in behalf of the grandchild and nephew/niece
entrusted]in their custody. x x x What if the family courts refuse consolidation? Is the

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man devoid of any remedy and would have to spend his time shuttling between three
(3) localities since a petition for certiorari is a prohibited pleading?

What if the woman went to another locality purposely in order to find a friendly venue x x
x? Again, if we are to strictly construe Section22 (j) of A.M. No. 04-10-11-SC that man
would just have to bear the consequences since he cannot seek the extraordinary writ
of certiorari. Or, what if both of the spouses do not reside within the court’s jurisdiction,
but the judge refuses to grant a motion to dismiss due to his zeal? What remedy would
a man have since he cannot resort to a petition for certiorari?

The rules are not sacrosanct. If they go in the way of the smooth and orderly
administration of justice, then magistrates should apply their best judgment. If not,
courts would be so hideously bound or captives to the stern and literal provisions of the
law that they themselves would, wittingly or otherwise, become administrators of
injustice.

On the one hand, this Court hereby notes that Private Respondent herself recognizes
the jurisdiction of the Makati RTC to issue a TPO. It was only after the Makati RTC
denied her prayer for a TPO when she filed a petition before the Muntinlupa RTC asking
for the issuance of a TPO. It is thus highly disturbing that the Private Respondent
sought another forum in order to try to obtain a favorable judgment. Thus, as aptly
pointed out by the Petitioner, some sort of forum-shopping was committed.

On the other hand, if the Court were to dismiss the present petition on the ground that a
petition for certiorari is a prohibited pleading, it would have to close its eyes to the fact
that the Private Respondent willfully committed forum-shopping. To dismiss the present
petition would, in effect, "reward" her for this negative act. This, the Court cannot
countenance.

xxxx

Accordingly, x x x Civil Case No. 08-023 must not be allowed to proceed any further.
Imperatively, to ensure that the jurisdiction of the Makati RTC remains unshackled, all of
the issuances of the Muntinlupa RTC should, by all means, be nullified. 26 (Emphasis
added.)

The CA denied Michelle’s motion for reconsideration per its equally assailed Resolution
of December 28, 2009.

Aggrieved, Michelle, for herself and for her minor daughters, filed the instant recourse,
her submissions revolving on the twin issues of forum shopping and the prohibition
under Sec. 22 of the Rule on Violence Against Women and Children 27 against the filing
of petitions for certiorari to defeat TPOs issued to promote the protection of victims of
violence against women and their children.

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Michelle presently argues that the assailed Decision of the CA is based on an
erroneous appreciation of the facts of the case. To her, there was no forum shopping
when she filed her Petition for Protection Order in the Muntinlupa RTC while the custody
case was pending in the Makati RTC. Her stated reason: the absence in both cases of
identity of parties and rights asserted, on top of which the reliefs sought and prayed for
are different and not founded on the same set of facts.

To downplay the application of the litis pendentia principle, she argues that it was
impossible for her to apply for and secure a protective order under RA 9262 in the
custody case before the Makati RTC being, first, a respondent, not a petitioner in the
Makati case; and second, the venue for an application for protection order is, under RA
9262, the place where the woman or the offended party resides, which in her case is
Muntinlupa.28

Michelle would invite attention to her having withdrawn her motion for protective order in
the custody case before the Makati RTC before she filed her Petition for Protective
Order with the Muntinlupa RTC. Additionally, she points to the CA’s Decision of August
28, 2008 in CA-G.R. SP No. 103392 (2008 CA Decision), which held that the Makati
RTC did not acquire jurisdiction over her so that all issuances of the Makati RTC were
void. All these, Michelle claims, argue against the existence of litis pendentia.

The Issue

The issue to be resolved in this case is whether or not petitioner, in filing her Petition for
Protection Order before the Muntinlupa RTC, violated the rule on forum shopping, given
the pendency of the respondent’s Petition for Custody before the Makati RTC and
considering incidentally that she filed said petition for protection order after the Makati
RTC had denied her application for protection order in the custody case.

The Court’s Ruling

Before anything else, however, the Court wishes to point out disturbing developments in
this proceeding which ought not to be swept under the rug on the simplistic pretext that
they may not be determinative of the outcome of this case. But first, some basic
premises on record.

First, as correctly stated in this petition, Michelle withdrew her Ex Parte Motion for
Issuance of Protective Order in the custody case prior to her filing of her Petition for
Protection Order with the Muntinlupa RTC. It should be made clear, however, that
she filed said motion to withdraw on January 21, 2008, or after the Makati RTC, in
its Order dated January 4,2008, had, for all intents and purposes, denied the said
ex parte motion. To recapitulate, the Makati RTC judge made it of record that she
was not inclined to issue a protective order in favor of a person, i.e., petitioner
Michelle, who has not bothered to appear in court, even assuming, she adds, that the
person against whom the protection order is directed, i.e., Juan Ignacio, is prone to
violence, a drug user and a womanizer.

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Second, there is absolutely nothing in the 2008 CA Decision declaring that all issuances
of the Makati RTC were void. In order to bolster her position that the rule against forum
shopping was not breached in this case, Michelle matter-of-factly alleged in this
recourse that since in the 2008 CA Decision it was ruled that the Makati RTC did not
acquire jurisdiction over her person due to the irregularity in the service of summons,
then "all the issuances or orders of the Makati RTC in the custody case were void;" 29
and "therefore, there was no litis pendentia to begin with since the RTC of Makati City
Branch 60 had no jurisdiction from the start."30

For perspective, the 2008 CA Decision did not rule that the Makati RTC did not acquire
jurisdiction over Michelle. Quite the contrary. As a matter of record, the CA in that
disposition found and thus declared Michelle to have voluntarily submitted herself to the
jurisdiction of the Makati RTC when she filed her Answer in SP. PROC. Case No. 6543
on January 2, 2008.But to be precise about things, the CA in that 2008 Decision found,
as having been tainted with of grave abuse of discretion, only that part of the Makati
RTC’s disposition denying Michelle’s motion to admit answer for belated filing and the
consequent default order. Along this line, the CA merely nullified the Makati RTC’s
Orders dated January 21, 2008 and March 7, 2008 which declared Michelle in default
and denied her motion for reconsideration, respectively. The ensuing excerpts of the
2008 CA Decision speak for themselves:

Sadly though, respondent judge, in grave abuse of discretion, assumed jurisdiction over
the person of the petitioner and proceeded to act on the petition. Worse, without due
regard to the plain intention of the rule in ensuring the adjudication of the
controversy surrounding a custody case based on its merits, the respondent
judge denied the motion to admit filed by the petitioner and declared the latter in
default. While the petitioner had already submitted herself to the jurisdiction of the trial
court by way of her voluntary act of filing a responsive pleading to the petition a quo, the
period to file said responsive pleading, as already stated, in so far as the petitioner is
concerned has yet to commence, and thus, the filing of her motion to admit answer
cannot plausibly be considered as to have been filed beyond the reglementary period.
In this light, the denial of said motion and the issuance of the default order are
unwarranted and are reversible errors of jurisdiction, therefore correctible by a writ of
certiorari. (Emphasis supplied.)

xxxx

WHEREFORE, the foregoing considered, the instant petition is hereby PARTLY

GRANTED. Accordingly, the assailed Orders of 21January 2008 and 7 March 2008 are
REVERSED and SET ASIDE while the Orders of 29 February 2008 and 31 March 2008,
in so far as the denial of petitioner’s Motion for Inhibition is concerned, are AFFIRMED.
No costs.

SO ORDERED.31

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Withal, the Court finds it downright offensive and utterly distasteful that petitioner raised
the following as one of the issues in this appellate proceeding:

Whether or not the petitioners are guilty of forum-shopping when the Petition for
Custody of private respondent Araneta was dismissed by the Court of Appeals on the
ground that the RTC of Makati City Branch60 did not acquire jurisdiction because the
summons was not served personally upon herein Petitioner Michelle Lana Brown
Araneta.32 (Emphasis supplied.)

Petitioner’s above posture smacks of bad faith, taken doubtless to deceive and
mislead the Court. Indeed, nothing in either the body or the fallo of the 2008 CA
Decision would yield the conclusion that the petition for custody is being
dismissed, as petitioner unabashedly would have the Court believe.

Was there forum shopping? Did petitioner forum shop?

A circumstance of forum shopping occurs when, as a result or in anticipation of an

adverse decision in one forum, a party seeks a favorable opinion in another forum
through means other than appeal or certiorari by raising identical causes of action,
subject matter and issues. Stated a bit differently, forum shopping is the institution of
two or more actions involving the same parties for the same cause of action, either
simultaneously or successively, on the supposition that one or the other court would
come out with a favorable disposition.33 An indicium of the presence of, or the test for
determining whether a litigant violated the rule against, forum shopping is where the
elements of litis pendentia are present or where a final judgment in one case will
amount to res judicata in the other case.34

Litis pendentia,35 as a ground for the dismissal of a civil suit, refers to that situation
wherein another action is pending between the same parties for the same cause of
action, such that the second action becomes vexatious and unnecessary. 36 For the bar
of litis pendentia to be invoked, the concurring requisites must be present: (1) identity of
parties, or at least such parties as represent the same interests in both actions; (2)
identity of rights asserted and relief prayed for, the relief being founded on the same
facts; and (3) the identity of the two preceding particulars is such that any judgment
rendered in the pending case, regardless of which party is successful would amount to
res judicata in the other.37

Thus, it has been held that there is forum shopping (1) whenever as a result of an
adverse decision in one forum, a party seeks a favorable decision (other than by appeal
or certiorari) in another; or (2) if, after he has filed a petition before the Supreme Court,
a party files another before the CA since in such case said party deliberately splits
appeals "in the hope that even as one case in which a particular remedy is sought is
dismissed, another case(offering a similar remedy) would still be open"; or (3) where a
party attempts to obtain a preliminary injunction in another court after failing to obtain it
from the original court.38

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The evil sought to be avoided by the rule against forum shopping is the rendition by two
competent tribunals of two separate and contradictory decisions. Unscrupulous party
litigants, taking advantage of a variety of competent tribunals, may repeatedly try their
luck in several different fora until a favorable result is reached. To avoid the resultant
confusion, the Court adheres to the rules against forum shopping, and a breach of these
rules results in the dismissal of the case.39

Considering the above doctrinal pronouncements on forum shopping, We find all the
badges of this deplorable, docket-clogging practice present in this case.

As a result or in anticipation of an adverse ruling of the Makati RTC,

petitioner sought the favorable opinion of the Muntinlupa RTC

As discussed above, the presiding judge of the Makati RTC, in the custody case, made
of record that she was not inclined to issue a protection order in favor of Michelle
because she did not bother to appear in Court and that the allegations against Juan
Ignacio cannot, per se, prevent him from exercising visitation rights over his children.
After this adverse ruling, Michelle sought the favorable opinion of the Muntinlupa RTC
by filing an independent Petition for Protection Order.

The cases have identical parties

Clearly, the Petition for Custody and the Petition for Protection Order have the same
parties who represent the same interests. The fact that Avaand Ara, who are parties in
the Petition for Protection Order, are not impleaded in the Petition for Custody is of no
moment because they are precisely the very subjects of the Petition for Custody and
their respective rights are represented by their mother, Michelle. In a long line of cases
on forum shopping, the Court has held that absolute identity of the parties is not
required, it being enough that there is substantial identity of the parties 40 or at least such
parties represent the same interests in both actions. It does not matter, as here, that in
the Petition for Custody, Juan Ignacio is the petitioner and Michelle is the respondent
while in the Petition for Protection Order, their roles are reversed. That a party is the
petitioner in one case and at the same time, the respondent in the other case does not,
without more, remove the said cases from the ambit of the rules on forum shopping. So
did the Court hold, for example in First Philippine International Bank v. Court of Appeals,
that forum shopping exists even in cases like this where petitioners or plaintiffs in one
case were impleaded as respondents or defendants in another. 41 Moreover, this Court
has constantly held that the fact that the positions of the parties are reversed, i.e., the
plaintiffs in the first case are the defendants in the second case or vice versa, does not
negate the identity of parties for purposes of determining whether the case is
dismissible on the ground of litis pendentia.42

The rights asserted and reliefs prayed for are based on the same facts

Further, the rights asserted and reliefs prayed for in Civil Case No. 08-023 are
practically based on the same facts and are so intertwined with that in SP. PROC. Case

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No. 6543, such that any judgment rendered in the pending cases, regardless of which
party is successful, will amount to res judicata.

In the custody case, Juan Ignacio mainly asserted his right, as father, to visit his
children and enjoy joint custody over them. He prayed for a judgment granting him joint
custody, or alternatively, permanent visitation rights over Ava and Ara.

In disposing of the custody case, the Makati RTC is expected, following the rationale
behind the issuance of the Rule on Custody of Minors, to consider, among others, the
best interest of the children,43 any threat or danger of physical, mental, sexual or
emotional violence which endangers their safety and best interest, their health, safety
and welfare,44 any history of child or spousal abuse by the person seeking custody, 45
habitual use of alcohol, dangerous drugs or regulated substances, 46 marital
misconduct,47 and the most suitable physical, emotional, spiritual, psychological and
educational environment for the holistic development and growth of the minor. 48

Michelle’s answer and motion for issuance of protection order in the custody case
contained allegations of psychological, sexual, emotional and economic abuse she and
her children suffered at the hands of Juan Ignacio to defeat his asserted right to have
joint custody over Ava and Ara and as argument that the grant of visitation rights in his
favor will not be in the best interest of the children. These allegations of abuse were in
substance the very same ones she made in her Petition for Protection Order.

Juan Ignacio’s rights and reliefs prayed for are dependent on and, to be sure, would be
predicated on the question of whether or not granting him the desired custody or at least
visitations rights over the children are in their best interest. In deciding this issue, the
Makati RTC will definitely have to reckon with and make a finding on Michelle’s
allegations of psychological, sexual, emotional and economic abuse.

Similarly, the Muntinlupa RTC must necessarily consider and make a determination
based on the very same facts and allegations on whether or not Michelle shall be
entitled to the relief she prayed for in her own petition, in particular, a permanent
protection order against Juan Ignacio.

Elements of litis pendentia are present and any judgment

in the pending cases would amount to res judicata

Any judgment rendered in the pending cases, regardless of which party is successful,
would amount to res judicata. Consider: If the Makati RTC were to grant Juan Ignacio’s
petition for custody, this would necessarily mean that it would be in the best interest of
the children if he were allowed to visit and spend time with them and that granting Juan
Ignacio visitation rights would not pose any danger or threat to the children.

On the other hand, a grant by the Muntinlupa RTC of Michelle’s prayer for a permanent
protection order would presuppose at the minimum that it would be to the children’s best
interest if Juan Ignacio is directed to keep away from them, necessary implying that he

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is unfit even to visit Araand Ava. Conversely, if Juan Ignacio’s Petition for Custody were
denied, then it would mean that the Makati RTC gave weight and credence to Michelle’s
allegations of abuse and found them to be in the best interest of the children to bar Juan
Ignacio from visiting them. Thus, the Muntinlupa RTC should have no ground to deny
Michelle’s Petition for Protection Order pending before it.

The evil sought to be avoided by the rule against

forum shopping is present in this case

The grave mischief sought to be avoided by the rule against forum shopping, i.e., the
rendition by two competent tribunals of two separate and contradictory decisions, is
well-nigh palpable in this case. If the Muntinlupa RTC were to rule that Michelle was
entitled to a Protection Order, this would necessarily conflict with any order or decision
from the Makati RTC granting Juan Ignacio visitation rights over Ava and Ara. As aptly
pointed out by Juan Ignacio in his Comment such a conflict had already occurred, as
the TPO issued by the Muntinlupa RTC actually conflicted with the Orders issued by the
Makati RTC granting Juan Ignacio temporary visitation rights over his children. There
now exists an Order from the Muntinlupa RTC which, among others, directed Juan
Ignacio to stay at least one (1) kilometer away from Ava and Ara, even as the Makati
RTC recognized, in two (2) separate Orders, that he had the right, albeit temporarily to
see his children.49

In fact, Michelle was very much aware of the possible conflicts between the orders of
Makati RTC and Muntinlupa RTC. In her Opposition (to Urgent Motion for Immediate
Enforcement of Visitation Orders dated December 21, 2007 and January 4, 2008), she
recognized that the granting of visitation rights in favor of Juan Ignacio would conflict the
TPO and, therefore, the Makati Court would be rendering a conflicting decision with that
of the Muntinlupa RTC, viz:

x x x There is therefore, no conflict of jurisdiction in this case but since the petitioner
filed a Petition for Certiorari in the Court of Appeals, which includes the issue of
custody, we submit that the matter of custody pendente lite including visitation, should
not and can not be resolved by this Honorable Court without conflicting with the
Temporary Protection Order of a co-equal court, the RTC of Muntinlupa City. x x xx

xxx

If the petitioner is granted visitation rights, the Honorable Court, with due respect would
be allowing him to violate the TPO against him; the Honorable Court would then be
rendering a conflicting decision.50 (Emphasis supplied.)

No less than the Muntinlupa RTC itself recognized the resulting aberration of its orders
conflicting with that/those of the Makati RTC. As it were, the former, in its Order of May
12, 2008, resolving Juan Ignacio’s Motion to Dismiss with Prayer to Lift Temporary
Protection Order, categorically stated that there may be orders in the protection order
case that would possibly conflict with the orders issued by the Makati RTC in the

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custody case. So it was that to address these possible conflicts, the Muntinlupa RTC
partially granted Juan Ignacio’s Motion to Dismiss by modifying the reliefs provided
under the TPO by excluding from its coverage those orders issued by the Makati RTC in
the exercise of its jurisdiction over the custody case. Pursuant to the foregoing Order of
the Muntinlupa RTC, the December 21, 2007 and January 4, 2008 Orders of the Makati
RTC, granting Juan Ignacio visitation rights on Christmas Day and New Year’s Day and
one (1) Saturday and Sunday in January 2008, are not covered by the reliefs under the
TPO. Hence, despite the TPO directing Juan Ignacio to stay at least one (1) kilometer
away from Ava and Ara, Juan Ignacio would still have the right to see his children by
virtue of the orders issued by the Makati RTC granting him temporary visitation rights.
The said Muntinlupa RTC Order reads:

Based on the pleadings filed, this (Muntinlupa) Court holds that since the Makati Court
first acquired jurisdiction over the issue of custody, the latter continues to exercise it, so
that any disposition on the matter by this Court may result in the possibility of conflicting
decisions/orders.

Wherefore, this Court partially grants respondent’s Motion to Dismiss insofar as those
matters covered by A.M. No. 03-04-04-SC, Rule on Custody of Minors and Writ of
Habeas corpus in Relation to Custody of Minors are concerned, which are within the
jurisdiction of the Makati Court, but continues to take cognizance on matters not
included therein (A.M. No. 03-04-04-SC) but within the protective mantle of R.A. No.
9262.

Consequently, the reliefs provided in favor of the petitioner in the Temporary Protection
Order dated March 31, 2008 are modified, to exclude from its coverage those Orders
issued by the Makati Court in the exercise of its jurisdiction on the pending custody
case.

The motions to lift the temporary protection order (except on those matter stated above)
and to cite petitioner in contempt of court are denied for lack of merit. 51 (Emphasis
supplied.)

Verily, the Muntinlupa RTC was aware that its issuances and its eventual final
disposition on the Petition for Protection Order would affect the custody case before the
Makati RTC, if not totally clash with the latter court’s decision. We agree with the CA’s
ensuing observation:

This Court notes that the Muntinlupa RTC tried to balance out the conflicting
jurisdictional issues with the Makati RTC by stating in its first assailed Order that the
reliefs provided in favor of herein private respondent in the TPO dated March 31, 2008
are modified, to exclude from its coverage those Orders issued by the Makati Court in
the exercise of its jurisdiction on the pending custody case. Be that as it may, the
Muntinlupa RTC itself recognized the jurisdiction of the Makati RTC and that the case
before it would, in fact, impinge upon the jurisdiction of the latter court when it stated
that the disposition on the matter by this Court may result in the possibility of conflicting

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decisions/orders. In short, the Muntinlupa RTC itself acknowledges the fact that any
future issuances, including its eventual decision on the petition before it, would affect
the custody case pending before the Makati RTC and might even result to conflicting
decisions. Thus, in the interest of judicial stability, it is incumbent upon this Court to
ensure that this eventuality will not come to pass.52

Civil Case No. 08-023 should, thus, be dismissed with prejudice for being a clear case
of forum shopping.

WHEREFORE, premises considered, the appealed May 11, 2009Decision and the
December 28, 2009 Resolution of the Court of Appeals in C A-G.R. SP. No. 105442,
particularly insofar as these ordered the dismissal or subject Civil Case No. 08-023 and
the nullification of the orders made in that case, are hereby AFFIRMED.

No costs.

SO ORDERED.

Mother given custody of child below seven years old

13.Pablo-Gualberto vs. Gualberto, G.R. 154994, June 28, 2005

G.R. No. 154994 June 28, 2005

JOYCELYN PABLO-GUALBERTO, petitioner,

vs.
CRISANTO RAFAELITO GUALBERTO V, respondent.

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

G.R. No. 156254 June 28, 2005

CRISANTO RAFAELITO G. GUALBERTO V, petitioner,

vs.
COURT OF APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge, Regional Trial
Court Parañaque City, Branch 260; and JOYCELYN D. PABLO-GUALBERTO,
respondents.

DECISION

PANGANIBAN, J.:

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When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The
Court is now tasked to settle the opposing claims of the parents for custody pendente
lite of their child who is less than seven years of age. There being no sufficient proof of
any compelling reason to separate the minor from his mother, custody should remain
with her.

The Case

Before us are two consolidated petitions. The first is a Petition for Review1 filed by
Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30,
2002 Decision2 of the Court of Appeals (CA) in CA-GR SP No. 70878. The assailed
Decision disposed as follows:

"WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED.

The assailed Order of May 17, 2002 is hereby SET ASIDE and ANNULLED. The
custody of the child is hereby ordered returned to [Crisanto Rafaelito G. Gualberto V].

"The [respondent] court/Judge is hereby directed to consider, hear and resolve

[petitioner’s] motion to lift the award of custody pendente lite of the child to
[respondent]."3

The second is a Petition for Certiorari4 filed by Crisanto Rafaelito Gualberto V under
Rule 65 of the Rules of Court, charging the appellate court with grave abuse of
discretion for denying his Motion for Partial Reconsideration of the August 30, 2002
Decision. The denial was contained in the CA’s November 27, 2002 Resolution, which
we quote:

"We could not find any cogent reason why the [last part of the dispositive portion of our
Decision of August 30, 2002] should be deleted, hence, subject motion is hereby
DENIED."5

The Facts

The CA narrated the antecedents as follows:

"x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the
Regional Trial Court of Parañaque City] a petition for declaration of nullity of his
marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for
custody pendente lite of their almost 4-year-old son, minor Rafaello (the child, for
brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and his
school (Infant Toddler’s Discovery Center in Parañaque City) when [she] decided to
abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2, 2002, [RTC
Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody pendente
lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a
certain Col. Renato Santos, and Ms. Cherry Batistel, testified before the x x x Judge; x x

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x documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x x [the]
Judge awarded custody pendente lite of the child to [Crisanto.] [T]he Order partly read x
x x:

‘x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor
child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the minor was
enrolled at B.F. Homes, Parañaque City. Despite effort[s] exerted by him, he has failed
to see his child. [Joycelyn] and the child are at present staying with the former’s step-
father at the latter’s [residence] at Caminawit, San Jose, Occidental Mindoro.

‘Renato Santos, President of United Security Logistic testified that he was

commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with the
conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano in
Cebu City.

‘The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper
of the spouses who stated that [the mother] does not care for the child as she very often
goes out of the house and on one occasion, she saw [Joycelyn] slapping the child.

‘Art. 211 of the Family Code provides as follows:

‘The father and the mother shall jointly exercise parental authority over the persons of
their children. In the case of disagreement, the father’s decision shall prevail, unless
there is a judicial order to the contrary.’

‘The authority of the father and mother over their children is exercised jointly. This
recognition, however, does not place her in exactly the same place as the father; her
authority is subordinated to that of the father.

‘In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child, taking
into account the respective resources and social and moral situations of the contending
parties.

‘The Court believes that [Joycelyn] had no reason to take the child with her. Moreover,
per Sheriff returns, she is not with him at Caminawit, San Jose, Occidental
Mindoro.

‘WHEREFORE, pendente lite, the Court hereby awards custody of the minor,
Crisanto Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.’

"x x x [O]n April 16, 2002, the hearing of [Joycelyn’s] motion to lift the award of custody
pendente lite of the child to [Crisanto] was set but the former did not allegedly present
any evidence to support her motion. However, on May 17, 2002, [the] Judge allegedly
issued the assailed Order reversing her Order of April 3, 2002 and this time awarding

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custody of the child to [Joycelyn]. [T]he entire text of the Order [is] herein reproduced, to
wit:

‘Submitted is [Crisanto’s] Motion to Resolve Prayer for Custody Pendente Lite and
[Joycelyn’s] Motion to Dismiss and the respective Oppositions thereto.

‘[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to
in the caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo
Gualberto. [Joycelyn] knows she is the person referred to in the Complaint. As a matter
of fact, the body of the Complaint states her name correct[ly]. The law is intended to
facilitate and promote the administration of justice, not to hinder or delay it. Litigation
should be practicable and convenient. The error in the name of Joycelyn does not
involve public policy and has not prejudiced [her].

‘This case was filed on March 12, 2002. Several attempts were made to serve
summons on [Joycelyn] as shown by the Sheriff’s returns. It appears that on the 4th
attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyn’s
mother and stepfather, respectively,] read the contents of the documents presented
after which they returned the same.lawphil.net

‘The Court believes that on that day, summons was duly served and this Court acquired
jurisdiction over [Joycelyn].

‘The filing of [Joycelyn’s annulment] case on March 26, 2002 was an after thought,
perforce the Motion to [D]ismiss should be denied.

‘The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years
old. Under Article 213 of the Family Code, he shall not be separated from his mother
unless the Court finds compelling reasons to order otherwise. The Court finds the
reason stated by [Crisanto] not [to] be compelling reasons.1avvphil.zw+ The father
should however be entitled to spend time with the minor. These do not appear
compelling reasons to deprive him of the company of his child.

‘When [Joycelyn] appeared before this Court, she stated that she has no
objection to the father visiting the child even everyday provided it is in Mindoro.

‘The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello
P. Gualberto, with [the] right of [Crisanto] to have the child with him every other
weekend.

‘WHEREFORE:

1. The [M]otion to Dismiss is hereby DENIED;

Page 100 of 265

 2. Custody pendente lite is hereby given to the mother Joycelyn Pablo
Gualberto with the right of the father, x x x [Crisanto], to have him every
other week-end.

3. Parties are admonished not to use any other agencies of the

government like the CIDG to interfere in this case and to harass the
parties.’"6

In a Petition for Certiorari7 before the CA, Crisanto charged the Regional Trial
Court (Branch 260) of Parañaque City with grave abuse of discretion for issuing
its aforequoted May 17, 2002 Order. He alleged that this Order superseded,
without any factual or legal basis, the still valid and subsisting April 3, 2002 Order
awarding him custody pendente lite of his minor son; and that it violated Section 14
of Article VII of the 1987 Constitution.

Ruling of the Court of Appeals

Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion had been
committed by the trial court in reversing the latter court’s previous Order dated
April 3, 2002, by issuing the assailed May 17, 2002 Order. The appellate court
explained that the only incident to resolve was Joycelyn’s Motion to Dismiss, not
the issuance of the earlier Order. According to the CA, the prior Order awarding
provisional custody to the father should prevail, not only because it was issued after
a hearing, but also because the trial court did not resolve the correct incident in the later
Order.

Nonetheless, the CA stressed that the trial court judge was not precluded from
considering and resolving Joycelyn’s Motion to lift the award of custody pendente lite to
Crisanto, as that Motion had yet to be properly considered and ruled upon. However, it
directed that the child be turned over to him until the issue was resolved.

Hence, these Petitions.8

Issues

In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:

"1. Whether or not the Respondent Court of Appeals, when it awarded the
custody of the child to the father, violated Art. 213 of the Family Code,
which mandates that ‘no child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to
order otherwise.’

"2. Is it Article 213 or Article 211 which applies in this case involving four-
year old Rafaello?"9

Page 101 of 265

On the other hand, Crisanto raises the following issues:

"A. Did Respondent Court commit grave abuse of discretion amounting to

or in excess of jurisdiction when, in its August 30, 2002 Decision, it
ordered respondent court/Judge ‘to consider, hear and resolve the motion
to lift award of custody pendente lite of the child to petitioner and x x x
denied the motion for reconsideration thereof in its November 27, 2002
Resolution, considering that: (1) there is no such motion ever, then or now
pending, with the court a quo; (2) the November 27, 2002 Resolution is
unconstitutional; and (3) the April 3, 2002 Order of respondent Judge, the
validity of which has been upheld in the August 30, 2002 Decision of the
respondent Court, has become final and executory; and

"B. Ought not the ancillary remedies [o]f habeas corpus, because the
whereabouts, physical and mental condition of the illegally detained Minor
Rafaello is now unknown to petitioner and preliminary mandatory
injunction with urgent prayer for immediate issuance of preliminary
[injunction], petitioner having a clear and settled right to custody of Minor
Rafaello which has been violated and still is being continuously violated by
[petitioner Joycelyn], be granted by this Honorable Court?"10

Being interrelated, the procedural challenges and the substantive issues in the two
Petitions will be addressed jointly.

The Court’s Ruling

There is merit in the Petition in GR No. 154994, but not in GR No. 156254.

Preliminary Issue:

The Alleged Prematurity of the Petition in GR No. 154994

Before going into the merits of the present controversy, the Court shall first dispose of a
threshold issue. In GR No. 154994, therein Respondent Crisanto contends that the
Petition for Review was filed beyond the deadline (October 24, 2002) allowed by the
Rules of Court and by this Court. He claims that Registry Bill No. 88 shows that the
Petition was sent by speed mail, only on November 4, 2002. Furthermore, he assails
the Petition for its prematurity, since his Motion for Partial Reconsideration of the August
30, 2002 CA Decision was still pending before the appellate court. Thus, he argues that
the Supreme Court has no jurisdiction over Joycelyn’s Petition.

Timeliness of the Petition

The manner of filing and service Joycelyn’s Petition by mail is governed by Sections 3
and 7 of Rule 13 of the Rules of Court, which we quote:

Page 102 of 265

"SEC. 3. Manner of filing. – The filing of pleadings, appearances, motions, notices,
orders, judgments and all other papers shall be made by presenting the original copies
thereof, plainly indicated as such personally to the clerk of court or by sending them by
registered mail. xxx In the second case, the date of mailing of motions, pleadings and
other papers or payments or deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered as the date of their filing, payment,
or deposit in court. The envelope shall be attached to the records of the case.

"x x x x x x x x x

"SEC. 7. Service by mail. – Service by registered mail shall be made by depositing the
copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at
his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and
with instructions to the postmaster to return the mail to the sender after ten (10) days if
undelivered. If no registry service is available in the locality of either the sender of the
addressee, service may be done by ordinary mail. (Italics supplied)

The records disclose that Joycelyn received the CA’s August 30, 2002 Decision on
September 9, 2002. On September 17, she filed before this Court a Motion for a 30-day
extension of time to file a petition for review on certiorari. This Motion was granted, 11
and the deadline was thus extended until October 24, 2002.

A further perusal of the records reveals that copies of the Petition were sent to this
Court and to the parties by registered mail12 at the Biñan, Laguna Post Office on
October 24, 2002. This is the date clearly stamped on the face of the envelope 13 and
attested to in the Affidavit of Service14 accompanying the Petition. Petitioner Joycelyn
explained that the filing and the service had been made by registered mail due to the
"volume of delivery assignments and the lack of a regular messenger." 15

The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing
date as shown by the post office stamp on the envelope. The last sentence of Section 3
of Rule 13 of the Rules provides that the date of filing may be shown either by the post
office stamp on the envelope or by the registry receipt. Proof of its filing, on the other
hand, is shown by the existence of the petition in the record, pursuant to Section 12 of
Rule 13.16

The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date
November 2, 2002, merely discloses when the mail matters received by the Biñan Post
Office on October 24, 2002, were dispatched or sent to the Central Mail Exchange for
distribution to their final destinations.17 The Registry Bill does not reflect the actual
mailing date. Instead, it is the postal Registration Book18 that shows the list of mail
matters that have been registered for mailing on a particular day, along with the names
of the senders and the addressees. That book shows that Registry Receipt Nos. 2832-A
and 2832-B, pertaining to the mailed matters for the Supreme Court, were issued on
October 24, 2002.

Page 103 of 265

Prematurity of the Petition

As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his
Urgent Motion for Partial Reconsideration19 was still awaiting resolution by the CA when
she filed her Petition before this Court on October 24, 2002. The CA ruled on the Motion
only on November 27, 2002.

The records show, however, that the Motion of Crisanto was mailed only on September
12, 2002. Thus, on September 17, 2002, when Joycelyn filed her Motion for Extension
of Time to file her Petition for Review, she might have still been unaware that he had
moved for a partial reconsideration of the August 20, 2002 CA Decision. Nevertheless,
upon being notified of the filing of his Motion, she should have manifested that fact to
this Court.

With the CA’s final denial of Crisanto’s Motion for Reconsideration, Joycelyn’s lapse
may be excused in the interest of resolving the substantive issues raised by the parties.

First Issue:

Grave Abuse of Discretion

In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when it
ordered the trial court judge to "consider, hear and resolve the motion to lift the award of
custody pendente lite" without any proper motion by Joycelyn and after the April 3, 2002
Order of the trial court had become final and executory. The CA is also charged with
grave abuse of discretion for denying his Motion for Partial Reconsideration without
stating the reasons for the denial, allegedly in contravention of Section 1 of Rule 36 of
the Rules of Court.

The Order to Hear the Motion to Lift the Award of Custody Pendente Lite Proper

To begin with, grave abuse of discretion is committed when an act is 1) done contrary to
the Constitution, the law or jurisprudence;20 or 2) executed "whimsically or arbitrarily" in
a manner "so patent and so gross as to amount to an evasion of a positive duty, or to a
virtual refusal to perform the duty enjoined." 21 What constitutes grave abuse of
discretion is such capricious and arbitrary exercise of judgment as that which is
equivalent, in the eyes of the law, to lack of jurisdiction.22

On the basis of these criteria, we hold that the CA did not commit grave abuse of
discretion.

First, there can be no question that a court of competent jurisdiction is vested with the
authority to resolve even unassigned issues. It can do so when such a step is
indispensable or necessary to a just resolution of issues raised in a particular pleading
or when the unassigned issues are inextricably linked or germane to those that have

Page 104 of 265

been pleaded.23 This truism applies with more force when the relief granted has been
specifically prayed for, as in this case.

Explicit in the Motion to Dismiss24 filed by Joycelyn before the RTC is her ancillary
prayer for the court to lift and set aside its April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son. Indeed, the necessary consequence of
granting her Motion to Dismiss would have been the setting aside of the Order
awarding Crisanto provisional custody of the child. Besides, even if the Motion to
Dismiss was denied -- as indeed it was -- the trial court, in its discretion and if
warranted, could still have granted the ancillary prayer as an alternative relief.

Parenthetically, Joycelyn’s Motion need not have been verified because of the
provisional nature of the April 3, 2002 Order. Under Rule 38 25 of the Rules of Court,
verification is required only when relief is sought from a final and executory Order.
Accordingly, the court may set aside its own orders even without a proper motion,
whenever such action is warranted by the Rules and to prevent a miscarriage of
justice.26

Denial of the Motion for Reconsideration Proper

Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and
distinctly the reasons for their dispositions) refers only to decisions and final orders on
the merits, not to those resolving incidental matters.27 The provision reads:

"SECTION 1. Rendition of judgments and final orders. – A judgment or final order

determining the merits of the case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law on which it is based, signed
by him, and filed with the clerk of court." (Italics supplied)

Here, the declaration of the nullity of marriage is the subject of the main case, in
which the issue of custody pendente lite is an incident. That custody and support
of common children may be ruled upon by the court while the action is pending is
provided in Article 49 of the Family Code, which we quote :

"Art. 49. During the pendency of the action28 and in the absence of adequate provisions
in a written agreement between the spouses, the Court shall provide for the support of
the spouses and the custody and support of their common children. x x x."

Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its
questioned Resolution, the CA clearly stated that it "could not find any cogent reason" to
reconsider and set aside the assailed portion of its August 30, 2002 Decision.

The April 3, 2002 Order Not Final and Executory

Third, the award of temporary custody, as the term implies, is provisional and subject to
change as circumstances may warrant. In this connection, there is no need for a lengthy

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discussion of the alleged finality of the April 3, 2002 RTC Order granting Crisanto
temporary custody of his son. For that matter, even the award of child custody after a
judgment on a marriage annulment is not permanent; it may be reexamined and
adjusted if and when the parent who was given custody becomes unfit.29

Second Issue:

Custody of a Minor Child

When love is lost between spouses and the marriage inevitably results in separation,
the bitterest tussle is often over the custody of their children. The Court is now tasked to
settle the opposing claims of the parents for custody pendente lite of their child who is
less than seven years old.30 On the one hand, the mother insists that, based on Article
213 of the Family Code, her minor child cannot be separated from her. On the other
hand, the father argues that she is "unfit" to take care of their son; hence, for
"compelling reasons," he must be awarded custody of the child.

Article 213 of the Family Code31 provides:

"ART. 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the court. The court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise."

This Court has held that when the parents are separated, legally or otherwise, the
foregoing provision governs the custody of their child.32 Article 213 takes its bearing
from Article 363 of the Civil Code, which reads:

"Art. 363. In all questions on the care, custody, education and property of children, the
latter’s welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure."(Italics
supplied)

The general rule that children under seven years of age shall not be separated from
their mother finds its raison d’etre in the basic need of minor children for their mother’s
loving care.33 In explaining the rationale for Article 363 of the Civil Code, the Code
Commission stressed thus:

"The general rule is recommended in order to avoid a tragedy where a mother has seen
her baby torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the rule has to be for
‘compelling reasons’ for the good of the child: those cases must indeed be rare, if the
mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the

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penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect upon the
baby who is as yet unable to understand the situation." (Report of the Code
Commission, p. 12)

A similar provision is embodied in Article 8 of the Child and Youth Welfare Code
(Presidential Decree No. 603).34 Article 17 of the same Code is even more explicit in
providing for the child’s custody under various circumstances, specifically in case the
parents are separated. It clearly mandates that "no child under five years of age shall be
separated from his mother, unless the court finds compelling reasons to do so." The
provision is reproduced in its entirety as follows:

"Art. 17. Joint Parental Authority. – The father and the mother shall exercise jointly just
and reasonable parental authority and responsibility over their legitimate or adopted
children. In case of disagreement, the father’s decision shall prevail unless there is a
judicial order to the contrary.

"In case of the absence or death of either parent, the present or surviving parent shall
continue to exercise parental authority over such children, unless in case of the
surviving parent’s remarriage, the court for justifiable reasons, appoints another person
as guardian.

"In case of separation of his parents, no child under five years of age shall be separated
from his mother, unless the court finds compelling reasons to do so." (Italics supplied)

The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is
unmistakable from the language of these provisions that Article 21135 was derived from
the first sentence of the aforequoted Article 17; Article 212, 36 from the second sentence;
and Article 213,37 save for a few additions, from the third sentence. It should be noted
that the Family Code has reverted to the Civil Code provision mandating that a child
below seven years should not be separated from the mother.38

Mandatory Character of Article 213 of the Family Code

In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in Article 363 of
the Civil Code and the observations made by the Code Commission underscore the
mandatory character of the word.40 Holding in that case that it was a mistake to deprive
the mother of custody of her two children, both then below the age of seven, the Court
stressed:

"[Article 363] prohibits in no uncertain terms the separation of a mother and her child
below seven years, unless such a separation is grounded upon compelling reasons as
determined by a court."41

In like manner, the word "shall" in Article 213 of the Family Code and Section 642 of
Rule 99 of the Rules of Court has been held to connote a mandatory character. 43 Article

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213 and Rule 99 similarly contemplate a situation in which the parents of the minor are
married to each other, but are separated by virtue of either a decree of legal separation
or a de facto separation.44 In the present case, the parents are living separately as a
matter of fact.

The Best Interest of the Child a Primary Consideration

The Convention on the Rights of the Child provides that "[i]n all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best interests of the child shall
be a primary consideration."45

The principle of "best interest of the child" pervades Philippine cases involving adoption,
guardianship, support, personal status, minors in conflict with the law, and child
custody. In these cases, it has long been recognized that in choosing the parent to
whom custody is given, the welfare of the minors should always be the paramount
consideration.46 Courts are mandated to take into account all relevant circumstances
that would have a bearing on the children’s well-being and development. Aside from the
material resources and the moral and social situations of each parent, other factors may
also be considered to ascertain which one has the capability to attend to the physical,
educational, social and moral welfare of the children.47 Among these factors are the
previous care and devotion shown by each of the parents; their religious background,
moral uprightness, home environment and time availability; as well as the children’s
emotional and educational needs

Tender-Age Presumption

As pointed out earlier, there is express statutory recognition that, as a general rule, a
mother is to be preferred in awarding custody of children under the age of seven. The
caveat in Article 213 of the Family Code cannot be ignored, except when the court finds
cause to order otherwise.48

The so-called "tender-age presumption" under Article 213 of the Family Code may be
overcome only by compelling evidence of the mother’s unfitness. The mother has been
declared unsuitable to have custody of her children in one or more of the following
instances: neglect, abandonment, unemployment, immorality, habitual drunkenness,
drug addiction, maltreatment of the child, insanity or affliction with a communicable
disease.49

Here, Crisanto cites immorality due to alleged lesbian relations as the compelling
reason to deprive Joycelyn of custody. It has indeed been held that under certain
circumstances, the mother’s immoral conduct may constitute a compelling reason to
deprive her of custody.50

But sexual preference or moral laxity alone does not prove parental neglect or
incompetence. Not even the fact that a mother is a prostitute or has been unfaithful to

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her husband would render her unfit to have custody of her minor child. 51 To deprive the
wife of custody, the husband must clearly establish that her moral lapses have had an
adverse effect on the welfare of the child or have distracted the offending spouse from
exercising proper parental care.52

To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was
openly living with her brother-in-law, the child’s uncle. Under that circumstance, the
Court deemed it in the nine-year-old child’s best interest to free her "from the obviously
unwholesome, not to say immoral influence, that the situation in which the mother ha[d]
placed herself might create in [the child’s] moral and social outlook."54

In Espiritu v. CA,55 the Court took into account psychological and case study reports on
the child, whose feelings of insecurity and anxiety had been traced to strong conflicts
with the mother. To the psychologist the child revealed, among other things, that the
latter was disturbed upon seeing "her mother hugging and kissing a ‘bad’ man who lived
in their house and worked for her father." The Court held that the "illicit or immoral
activities of the mother had already caused the child emotional disturbances, personality
conflicts, and exposure to conflicting moral values x x x."

Based on the above jurisprudence, it is therefore not enough for Crisanto to show
merely that Joycelyn was a lesbian. He must also demonstrate that she carried on her
purported relationship with a person of the same sex in the presence of their son or
under circumstances not conducive to the child’s proper moral development. Such a
fact has not been shown here. There is no evidence that the son was exposed to the
mother’s alleged sexual proclivities or that his proper moral and psychological
development suffered as a result.

Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in
her May 17, 2002 Order that she had found the "reason stated by [Crisanto] not to be
compelling"56 as to suffice as a ground for separating the child from his mother. The
judge made this conclusion after personally observing the two of them, both in the
courtroom and in her chambers on April 16, 2002, and after a chance to talk to the boy
and to observe him firsthand. This assessment, based on her unique opportunity to
witness the child’s behavior in the presence of each parent, sh ould carry more weight
than a mere reliance on the records. All told, no compelling reason has been adduced
to wrench the child from the mother’s custody.

No Grant of Habeas Corpus and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her
custody, the writ of habeas corpus and the preliminary mandatory injunction
prayed for by Crisanto have no leg to stand on. A writ of habeas corpus may be
issued only when the "rightful custody of any person is withheld from the person
entitled thereto,"57 a situation that does not apply here.

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On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be
granted, because Crisanto’s right to custody has not been proven to be "clear and
unmistakable."58 Unlike an ordinary preliminary injunction, the writ of preliminary
mandatory injunction is more cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond the maintenance of the status
quo.59 Besides, such an injunction would serve no purpose, now that the case has been
decided on its merits.60

WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of

the Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court
Order REINSTATED. The Petition in GR No. 156254 is DISMISSED. Costs against
Petitioner Crisanto Rafaelito Gualberto V.

SO ORDERED.

Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.

Writ of habeas corpus enforceable within the court’s judicial region

14.Tujan-Militante vs. Cada-Deapera, G.R. No. 210636, July 28, 2014

G.R. No. 210636 July 28, 2014

MA. HAZELINA A. TUJANMILITANTE IN BEHALF OF THE MINOR CRISELDA M.

CADA, Petitioner,
vs.
RAQUEL M. CADA-DEAPERA, Respondent.

DECISION

VELASCO, JR., J.:

Nature of the Case

Before Us is a petition for review on certiorari under Rule 45 of the Rules of Court with
prayer for injunctive relief seeking the reversal of the Court of Appeals (CA) Decision1
dated May 17, 2013 as well as its Resolution dated December 27, 2013 in CA-G.R. SP
No. 123759. In the main, petitioner questions the jurisdiction of the Regional Trial Court,
Branch 130 in Caloocan City (RTC-Caloocan) to hear and decide a special civil action
for habeas corpus in relation to the custody of a minor residing in Quezon City.

The Facts

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On March 24, 2011, respondent Raquel M. Cada-Deapera filed before the R TC-
Caloocan a verified petition for writ of habeas corpus, docketed as Special Civil
Action Case No. C-4344. In the said petition, respondent demanded the immediate
issuance of the special writ, directing petitioner Ma. Hazelina Tujan-Militante to
produce before the court respondent's biological daughter, minor Criselda M.
Cada (Criselda), and to return to her the custody over the child. Additionally,
respondent indicated that petitioner has three (3) known addresses where she can be
served with summons and other court processes, to wit: (1) 24 Bangkal St., Amparo
Village, Novaliches, Caloocan City; (2) 118B K9Street, Kamias, Quezon City; and (3)
her office at the Ombudsman-Office of the Special Prosecutor, 5th Floor,
Sandiganbayan, Centennial Building, Commonwealth Avenue cor. Batasan Road,
Quezon City.2

The next day, on March 25, 2011, the RTC-Caloocan issued a writ of habeas
corpus, ordering petitioner to bring the child to court on March 28, 2011. Despite
diligent efforts and several attempts, however, the Sheriff was unsuccessful in
personally serving petitioner copies of the habeas corpus petition and of the writ.
Instead, on March 29, 2011, the Sheriff left copies of the court processes at petitioner’s
Caloocan residence, as witnessed by respondent’s counsel and barangay officials. 3
Nevertheless, petitioner failed to appear at the scheduled hearings before the RTC-
Caloocan.

Meanwhile, on March 31, 2011, petitioner filed a Petition for Guardianship over the
person of Criselda before the RTC, Branch 89 in Quezon City (RTC-Quezon City).
Respondent filed a Motion to Dismiss the petition for guardianship on the ground of litis
pendentia, among others. Thereafter, or on June 3, 2011, respondent filed a criminal
case for kidnapping before the Office of the City Prosecutor – Quezon City against
petitioner and her counsel.

On July 12, 2011, the RTC-Quezon City granted respondent’s motion and dismissed the
guardianship case due to the pendency of the habeas corpuspetition before RTC-
Caloocan.4

The falloof the Order reads:

WHEREFORE, in view of the foregoing,the subject motion is hereby

GRANTED.Accordingly, the case is hereby DISMISSED.

SO ORDERED.5

Then, on August 4, 2011, Raquel moved for the ex parte issuance of an alias writ of
habeas corpus before the RTC-Caloocan, which was granted by the trial court on
August 8, 2011. On even date, the court directed the Sheriff to serve the alias writ upon
petitioner at the Office of the As sistant City Prosecutor of Quezon City on August 10,
2011.6 In compliance, the Sheriff served petitioner the August 8, 2011 Order as well as
the Alias Writ during the preliminary investigation of the kidnapping case. 7

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Following this development, petitioner, by way of special appearance, moved for the
quashal of the writ and prayed before the RTC Caloocan for the dismissal of the habeas
corpus petition,8 claiming, among others, that she was not personally served with
summons. Thus, as argued by petitioner, jurisdiction over her and Criselda’sperson was
not acquired by the RTCCaloocan.

Ruling of the Trial Court

On January 20, 2012, the RTC-Caloocan issued an Order denying petitioner’s

omnibus motion, citing Saulo v. Brig. Gen. Cruz,9 where the Court held that a writ
of habeas corpus, being an extraordinary process requiring immediate
proceeding and action, plays a role somewhat comparable to a summons in ordinary
civil actions, in that, by service of said writ, the Court acquires jurisdiction over the
person of the respondent, as petitioner herein.10

Moreover, personal service, the RTC said, does not necessarily require that service be
made exclusively at petitioner’s given address, for service may be made elsewhere or
wherever she may be found for as long as she was handed a copy of the court process
in person by anyone authorized by law. Since the sheriff was able to personally serve
petitioner a copy of the writ, albeit in Quezon City, the RTC-Caloocan validly acquired
jurisdiction over her person.11 The dispositive portion of the Order reads:

WHEREFORE, premises considered, the Very Urgent Motion (Motion to Quash Alias
Writ; Motion to Dismiss)filed by respondent Ma. Hazelina Tujan-Militante dated August
11, 2011 is hereby DENIED for lack of merit.

In the meantime, respondent Ma. Hazelina Tujan-Militante is hereby directed to appear

and bring Criselda Martinez Cada before this Court on February 10, 2012 at 8:30
o’clock in the morning.

SO ORDERED.12

Aggrieved, petitioner, via certiorari to the CA, assailed the issued Order.

Ruling of the Court of Appeals

Over a year later, the CA, in the challenged Decision dated May 17, 2013,13
dismissed the petition for certiorari in the following wise:

WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. The
Regional Trial Court, Branch 130 of Caloocan City is DIRECTED to proceed with due
dispatch in Spec. Proc. Case No. C-4344 for Habeas Corpus, giving utmost
consideration tothe best interest of the now nearly 14-year old child.

SO ORDERED.14

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In so ruling, the CA held that jurisdiction was properly laid when respondent filed the
habeas corpus petition before the designated Family Court in Caloocan City. 15 It also
relied on the certification issued by the punong barangay of Brgy. 179, Caloocan City,
stating that petitioner is a bona fide resident thereof, as well as the medical certificate
issued by Criselda’s doctor on April 1, 2011, indicating that her address is "Amparo
Village, KC."16 Anent the RTC-Caloocan’s jurisdiction, the appellate court ruled that
service of summons is not required under Section 20 of A.M. No. 03-04-04-SC,
otherwise known as the Rules on Custody of Minors and Habeas Corpus in Relation to
Custody of Minors. According tothe CA, the rules on summons contemplated in ordinary
civil actions have no place in petitions for the issuance of a writ of habeas corpus, it
being a special proceeding.17

Petitioner sought reconsideration ofthe above Decision but the same was denied by the
CA in its December 27, 2013 Resolution.1âwphi1

Hence, this Petition.

The Issues

At the core of this controversy isthe issue of whether or not the RTC Caloocan has
jurisdiction over the habeascorpus petition filed by respondent and, assuming arguendo
it does, whether or not it validly acquired jurisdiction over petitioner and the person of
Criselda. Likewise pivotal is the enforce ability of the writ issued by RTC-Caloocan in
Quezon City where petitioner was served a copy thereof.

The Court’s Ruling

The petition lacks merit. The RTC-Caloocan correctly took cognizance of the habeas
corpus petition. Subsequently, it acquired jurisdiction over petitioner when the latter was
served with a copy of the writ in Quezon City.

The RTC-Caloocan has jurisdiction over the habeas corpus proceeding

Arguing that the RTC-Caloocan lacked jurisdiction over the case, petitioner relies on
Section 3 of A.M. No. 03-04-04-SC and maintains that the habeas corpus petition
should have been filed before the family court that has jurisdiction over her place
of residence or that of the minor or wherever the minor may be found.18 As to
respondent, she asserts, among others, that the applicable rule is not Section 3 but
Section 20 of A.M. No. 03-04-04-SC.19

We find for respondent.

In the case at bar, what respondent filed was a petition for the issuance of a writ of
habeas corpus under Section 20 of A.M. No. 03-04-04-SC and Rule 102 of the Rules of
Court.20 As provided:

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Section 20. Petition for writ of habeas corpus.- A verified petition for a writ of habeas
corpus involving custody of minors shall be filed with the Family Court. The writ shall
beenforceable within its judicial region to which the Family Court belongs.

However, the petition may be filed with the regular court in the absence of the presiding
judge of the Family Court, provided, however, that the regular court shall refer the case
tothe Family Court as soon as its presiding judge returns to duty.

The petition may also be filed with the appropriate regular courts in places where there
are no Family Courts.

The writ issued by the Family Court or the regular court shall be enforceable in the
judicial region where they belong.

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any
of its members and, if so granted,the writ shall be enforceable anywhere in the
Philippines. The writ may be made returnable to a Family Court or to any regular court
within the region where the petitioner resides or where the minor may be found for
hearing and decision on the merits.

Upon return of the writ, the court shall decide the issue on custody of minors. The
appellate court, or the member thereof, issuing the writ shall be furnished a copy of the
decision. (emphasis added)

Considering that the writ is made enforceable within a judicial region, petitions
for the issuance of the writ of habeas corpus, whether they be filed under Rule
102 of the Rules of Court orpursuant to Section 20 of A.M. No. 03-04-04-SC, may
therefore be filed withany of the proper RTCs within the judicial region where
enforcement thereof is sought.21

On this point, Section 13 of Batas Pambansa Blg. 129 (BP 129), otherwise known as
the Judiciary Reorganization Act of 1980, finds relevance. Said provision, which
contains the enumeration of judicial regions in the country, states:

Section 13. Creation of Regional Trial Courts. – There are hereby created thirteen
Regional Trial Courts, one for each of the following judicial regions:

xxxx

The National Capital Judicial Region, consisting of the cities of Manila, Quezon, Pasay,
Caloocan and Mandaluyong, and the municipalities of Navotas, Malabon, San Juan,
Makati, Pasig, Pateros, Taguig, Marikina, Parañaque, Las Piñas, Muntinlupa, and
Valenzuela. (emphasis ours)

In view of the afore-quoted provision,it is indubitable that the filing of a petition

for the issuance of a writ of habeas corpus before a family court in any of the

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cities enumerated is proper as long as the writ is sought to be enforced within the
National Capital Judicial Region, as here.

In the case at bar, respondent filed the petition before the family court of
Caloocan City. Since Caloocan City and Quezon City both belong to the same
judicial region, the writ issued by the RTC-Caloocan can still be implemented in
Quezon City. Whether petitioner resides in the former or the latter is immaterial in
view of the above rule.

Anent petitioner’s insistence on the application of Section 3 of A.M. No. 03-04-04-SC, a

plain reading of said provision reveals that the provision invoked only applies to
petitions for custody of minors, and not to habeas corpus petitions. Thus:

Section 3. Where to file petition.- The petition for custody of minors shall be filed with
the Family Court of the province or city where the petitioner resides or where the
minormay be found. (emphasis added)

Lastly, as regards petitioner’s assertion that the summons was improperly served,
suffice it to state thatservice of summons, to begin with, is not required in a habeas
corpus petition, be it under Rule 102 of the Rules of Court or A.M. No. 03-04-04-SC. As
held in Saulo v. Cruz, a writ of habeas corpus plays a role somewhat comparable to a
summons, in ordinary civil actions, in that, by service of said writ, the court acquires
jurisdiction over the person of the respondent.22

In view of the foregoing, We need not belabor the other issues raised.

WHEREFORE, the instant petition is DENIED. The Court of Appeals Decision dated
May 1 7, 2013 and its Resolution dated December 27, 2013 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Writ issued by Supreme Court and Court of Appeals enforceable anywhere in the
Philippines
15.Thorton vs. Thorton, G.R. No. 154598, August 16, 2004

.R. No. 154598 August 16, 2004

IN THE MATTER OF APPLICATION FOR THE ISSUANCE OF A WRIT OF HABEAS

CORPUS
RICHARD BRIAN THORNTON for and in behalf of the minor child SEQUEIRA

Page 115 of 265

JENNIFER DELLE FRANCISCO THORNTON, petitioner,
vs.
ADELFA FRANCISCO THORNTON, respondent.

DECISION

CORONA, J.:

This is a petition to review, under Rule 45 of the Rules of Court, the July 5, 2002
resolution1 of the Court of Appeals, Sixteenth Division, in CA G.R. SP No. 70501
dismissing the petition for habeas corpus on the grounds of lack of jurisdiction and lack
of substance. The dispositive portion2 read:

WHEREFORE, the Court DISMISSES the petition for habeas corpus on

the grounds that: a) this Court has no jurisdiction over the subject matter
of the petition; and b) the petition is not sufficient in substance.

Petitioner, an American, and respondent, a Filipino, were married on August 28, 1998 in
the Catholic Evangelical Church at United Nations Avenue, Manila. A year later,
respondent gave birth to a baby girl whom they named Sequeira Jennifer Delle
Francisco Thornton.

However, after three years, respondent grew restless and bored as a plain housewife.
She wanted to return to her old job as a "guest relations officer" in a nightclub, with the
freedom to go out with her friends. In fact, whenever petitioner was out of the country,
respondent was also often out with her friends, leaving her daughter in the care of the
househelp.

Petitioner admonished respondent about her irresponsibility but she continued her
carefree ways. On December 7, 2001, respondent left the family home with her
daughter Sequiera without notifying her husband. She told the servants that she was
bringing Sequiera to Purok Marikit, Sta. Clara, Lamitan, Basilan Province.

Petitioner filed a petition for habeas corpus in the designated Family Court in Makati
City but this was dismissed, presumably because of the allegation that the child was in
Basilan. Petitioner then went to Basilan to ascertain the whereabouts of respondent and
their daughter. However, he did not find them there and the barangay office of Sta.
Clara, Lamitan, Basilan, issued a certification3 that respondent was no longer residing
there.

Petitioner gave up his search when he got hold of respondent’s cellular phone bills
showing calls from different places such as Cavite, Nueva Ecija, Metro Manila and other

Page 116 of 265

provinces. Petitioner then filed another petition for habeas corpus, this time in the Court
of Appeals which could issue a writ of habeas corpus enforceable in the entire country.

However, the petition was denied by the Court of Appeals on the ground that it did not
have jurisdiction over the case. It ruled that since RA 8369 (The Family Courts Act of
1997) gave family courts exclusive original jurisdiction over petitions for habeas corpus,
it impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the Court of
Appeals) and Batas Pambansa 129 (The Judiciary Reorganization Act of 1980):

Under Sec. 9 (1), BP 129 (1981) the Intermediate Appellate Court (now
Court of Appeals) has jurisdiction to issue a writ of habeas corpus whether
or not in aid of its appellate jurisdiction. This conferment of jurisdiction was
re-stated in Sec. 1, RA 7902 (1995), an act expanding the jurisdiction of
this Court. This jurisdiction finds its procedural expression in Sec. 1, Rule
102 of the Rules of Court.

In 1997, RA 8369 otherwise known as Family Courts Act was enacted. It

provides:

Sec. 5. Jurisdiction of Family Court. – The Family Courts shall have

exclusive original jurisdiction to hear and decide the following
cases:

xxx xxx xxx

b. Petition for guardianship, custody of children, habeas

corpus in relation to the latter.

The vital question is, did RA 8369 impliedly repeal BP 129 and RA 7902
insofar as the jurisdiction of this Court to issue writ of habeas corpus in
custody of minor cases is concerned? The simple answer is, yes, it did,
because there is no other meaning of the word "exclusive" than to
constitute the Family Court as the sole court which can issue said writ. If a
court other than the Family Court also possesses the same competence,
then the jurisdiction of the former is not exclusive but concurrent – and
such an interpretation is contrary to the simple and clear wording of RA
8369.

Petitioner argues that unless this Court assumes jurisdiction over a

petition for habeas corpus involving custody of minors, a respondent can
easily evade the service of a writ of habeas corpus on him or her by just
moving out of the region over which the Regional Trial Court issuing the
writ has territorial jurisdiction. That may be so but then jurisdiction is
conferred by law. In the absence of a law conferring such jurisdiction in
this Court, it cannot exercise it even if it is demanded by expediency or
necessity.

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 Whether RA 8369 is a good or unwise law is not within the authority of this
Court – or any court for that matter – to determine. The enactment of a law
on jurisdiction is within the exclusive domain of the legislature. When there
is a perceived defect in the law, the remedy is not to be sought form the
courts but only from the legislature.

The only issue before us therefore is whether the Court of Appeals has jurisdiction to
issue writs of habeas corpus in cases involving custody of minors in the light of the
provision in RA 8369 giving family courts exclusive original jurisdiction over such
petitions.

In his comment, the Solicitor General points out that Section 20 of the Rule on Custody
of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-
04-SC, effective May 15, 2003) has rendered the issue moot. Section 20 of the rule
provides that a petition for habeas corpus may be filed in the Supreme Court,4 Court of
Appeals, or with any of its members and, if so granted, the writ shall be enforceable
anywhere in the Philippines.5

The petition is granted.

The Court of Appeals should take cognizance of the case since there is nothing in RA
8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of
minors.

The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and BP 129
since, by giving family courts exclusive jurisdiction over habeas corpus cases, the
lawmakers intended it to be the sole court which can issue writs of habeas corpus. To
the court a quo, the word "exclusive" apparently cannot be construed any other way.

We disagree with the CA’s reasoning because it will result in an iniquitous situation,
leaving individuals like petitioner without legal recourse in obtaining custody of their
children. Individuals who do not know the whereabouts of minors they are looking for
would be helpless since they cannot seek redress from family courts whose writs are
enforceable only in their respective territorial jurisdictions. Thus, if a minor is being
transferred from one place to another, which seems to be the case here, the petitioner
in a habeas corpus case will be left without legal remedy. This lack of recourse could
not have been the intention of the lawmakers when they passed the Family Courts Act
of 1997. As observed by the Solicitor General:

Under the Family Courts Act of 1997, the avowed policy of the State is to
"protect the rights and promote the welfare of children." The creation of
the Family Court is geared towards addressing three major issues
regarding children’s welfare cases, as expressed by the legislators during
the deliberations for the law. The legislative intent behind giving Family
Courts exclusive and original jurisdiction over such cases was to avoid
further clogging of regular court dockets, ensure greater sensitivity and

Page 118 of 265

 specialization in view of the nature of the case and the parties, as well as
to guarantee that the privacy of the children party to the case remains
protected.

The primordial consideration is the welfare and best interests of the child. We rule
therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of
their jurisdiction over habeas corpus cases involving the custody of minors. Again, to
quote the Solicitor General:

To allow the Court of Appeals to exercise jurisdiction over the petition for
habeas corpus involving a minor child whose whereabouts are uncertain
and transient will not result in one of the situations that the legislature
seeks to avoid. First, the welfare of the child is paramount. Second, the ex
parte nature of habeas corpus proceedings will not result in disruption of
the child’s privacy and emotional well-being; whereas to deprive the
appellate court of jurisdiction will result in the evil sought to be avoided by
the legislature: the child’s welfare and well being will be prejudiced.

This is not the first time that this Court construed the word "exclusive" as not foreclosing
resort to another jurisdiction. As correctly cited by the Solicitor General, in Floresca vs.
Philex Mining Corporation,6 the heirs of miners killed in a work-related accident were
allowed to file suit in the regular courts even if, under the Workmen’s Compensation
Act, the Workmen’s Compensation Commissioner had exclusive jurisdiction over such
cases.

We agree with the observations of the Solicitor General that:

While Floresca involved a cause of action different from the case at bar. it
supports petitioner’s submission that the word "exclusive" in the Family
Courts Act of 1997 may not connote automatic foreclosure of the
jurisdiction of other courts over habeas corpus cases involving minors. In
the same manner that the remedies in the Floresca case were selective,
the jurisdiction of the Court of Appeals and Family Court in the case at bar
is concurrent. The Family Court can issue writs of habeas corpus
enforceable only within its territorial jurisdiction. On the other hand, in
cases where the territorial jurisdiction for the enforcement of the writ
cannot be determined with certainty, the Court of Appeals can issue the
same writ enforceable throughout the Philippines, as provided in Sec. 2,
Rule 102 of the Revised Rules of Court, thus:

The Writ of Habeas Corpus may be granted by the Supreme Court,

or any member thereof, on any day and at any time, or by the Court
of Appeals or any member thereof in the instances authorized by
law, and if so granted it shall be enforceable anywhere in the
Philippines, and may be made returnable before the court or any
member thereof, or before a Court of First Instance, or any judge

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 thereof for hearing and decision on the merits. It may also be
granted by a Court of First Instance, or a judge thereof, on any day
and at any time, and returnable before himself, enforceable only
within his judicial district. (Emphasis supplied)

In ruling that the Commissioner’s "exclusive" jurisdiction did not foreclose resort to the
regular courts for damages, this Court, in the same Floresca case, said that it was
merely applying and giving effect to the constitutional guarantees of social justice in the
1935 and 1973 Constitutions and implemented by the Civil Code. It also applied the
well-established rule that what is controlling is the spirit and intent, not the letter, of the
law:

"Idolatrous reverence" for the law sacrifices the human being. The spirit of
the law insures man’s survival and ennobles him. In the words of
Shakespeare, "the letter of the law killeth; its spirit giveth life."

xxx xxx xxx

It is therefore patent that giving effect to the social justice guarantees of

the Constitution, as implemented by the provisions of the New Civil Code,
is not an exercise of the power of law-making, but is rendering obedience
to the mandates of the fundamental law and the implementing legislation
aforementioned.

Language is rarely so free from ambiguity as to be incapable of being used in more than
one sense. Sometimes, what the legislature actually had in mind is not accurately
reflected in the language of a statute, and its literal interpretation may render it
meaningless, lead to absurdity, injustice or contradiction.7 In the case at bar, a literal
interpretation of the word "exclusive" will result in grave injustice and negate the policy
"to protect the rights and promote the welfare of children" 8 under the Constitution and
the United Nations Convention on the Rights of the Child. This mandate must prevail
over legal technicalities and serve as the guiding principle in construing the provisions
of RA 8369.

Moreover, settled is the rule in statutory construction that implied repeals are not
favored:

The two laws must be absolutely incompatible, and a clear finding thereof
must surface, before the inference of implied repeal may be drawn. The
rule is expressed in the maxim, interpretare et concordare leqibus est
optimus interpretendi, i.e., every statute must be so interpreted and
brought into accord with other laws as to form a uniform system of
jurisprudence. The fundament is that the legislature should be presumed
to have known the existing laws on the subject and not have enacted
conflicting statutes. Hence, all doubts must be resolved against any

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 implied repeal, and all efforts should be exerted in order to harmonize and
give effect to all laws on the subject."9

The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the
Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the
custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092
and BP 129 are absolutely incompatible since RA 8369 does not prohibit the Court of
Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving
the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with
RA 7029 and BP 129 ― that family courts have concurrent jurisdiction with the Court of
Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at
issue.

In any case, whatever uncertainty there was has been settled with the adoption of A.M.
No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation
to Custody of Minors. Section 20 of the rule provides that:

Section 20. Petition for writ of habeas corpus.- A verified petition for a writ
of habeas corpus involving custody of minors shall be filed with the Family
Court. The writ shall be enforceable within its judicial region to which the
Family Court belongs.

xxx xxx xxx

The petition may likewise be filed with the Supreme Court, Court of
Appeals, or with any of its members and, if so granted, the writ shall be
enforceable anywhere in the Philippines. The writ may be made returnable
to a Family Court or to any regular court within the region where the
petitioner resides or where the minor may be found for hearing and
decision on the merits. (Emphasis Ours)

From the foregoing, there is no doubt that the Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in habeas corpus cases where the
custody of minors is involved.

One final note. Requiring the serving officer to search for the child all over the country is
not an unreasonable availment of a remedy which the Court of Appeals cited as a
ground for dismissing the petition. As explained by the Solicitor General: 10

That the serving officer will have to "search for the child all over the
country" does not represent an insurmountable or unreasonable obstacle,
since such a task is no more different from or difficult than the duty of the
peace officer in effecting a warrant of arrest, since the latter is likewise
enforceable anywhere within the Philippines.

Page 121 of 265

WHEREFORE, the petition is hereby GRANTED. The petition for habeas corpus in CA-
G.R.-SP-No. 70501 is hereby REINSTATED and REMANDED to the Court of Appeals,
Sixteenth Division.

SO ORDERED.

Latest Jurisprudence:
16.In the Matter of the Application for the Writ of Habeas Corpus Reclassifying
Sentence to R.A. No. 8353 in behalf of Rogelio Ormilla, et al. vs. The Director, Bureau
of Corrections, G.R. No. 170497, January 22, 2007

G.R. No. 170497 January 22, 2007

IN THE MATTER OF THE APPLICATION FOR THE WRIT OF HABEAS CORPUS

RECLASSIFYING SENTENCE TO R.A. NO. 8353 IN BEHALF OF, ROGELIO
ORMILLA, ROGELIO RIVERA, ALFREDO NAVARRO, Petitioners,
vs.
THE DIRECTOR, BUREAU OF CORRECTIONS, AND THE PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition1 for the issuance of a writ of habeas corpus filed for and in
behalf of Rogelio Ormilla, Rogelio Rivera and Alfredo Navarro, praying for their
release from confinement on the ground that an excessive penalty was imposed
on them.

At the outset, we note that only Ormilla signed his conformity to the petition while Rivera
and Navarro failed to manifest their conformity or sign the verification. Hence, the
instant petition pertains only to petitioner Ormilla.

Petitioner, together with Rivera and Navarro, was convicted of two counts of rape and
sentenced to reclusion perpetua for each count. He is presently confined at the National
Penitentiary in Muntinlupa and has served approximately 17 years of his sentence. 2

In the instant petition, Ormilla alleged that he should be released from

confinement by virtue of Republic Act No. 8353 (R.A. No. 8353), otherwise known
as "The Anti-Rape Law of 1997." He claimed that under the new rape law, the
penalty for rape committed by two or more persons was downgraded to prision
mayor to reclusion temporal. Thus, the penalty of reclusion perpetua imposed on him

Page 122 of 265

is excessive and should be modified in accordance with R.A. No. 8353. He prayed that
he be released so he could apply for pardon or parole.

In their Comment,3 respondents, represented herein by the Office of the Solicitor-

General, contended that the penalty imposed under R.A. No. 8353 for rape committed
by two or more persons is reclusion perpetua to death. Under Article 704 of the Revised
Penal Code, the duration of perpetual penalties is 30 years. Since petitioner was
sentenced to reclusion perpetua for each count of rape, the aggregate of the two
penalties is 60 years. Respondents argued that petitioner has yet to complete the
service of his first sentence, as he has been in confinement for only 17 years.
Respondents further argued that petitioner is ineligible for parole, because Section 2 of
the Indeterminate Sentence Law prohibits its application to persons convicted of
offenses punished by life imprisonment.

The sole issue for resolution is whether the writ may be granted in favor of petitioner.

The petition lacks merit.

Section 1, Rule 102 of the Rules of Court provides that a petition for the issuance of a
writ of habeas corpus may be availed of in cases of illegal confinement by which any
person is deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto. In Feria v. Court of Appeals,5 the Court held
that the writ may also be issued where, as a consequence of a judicial proceeding, (a)
there has been a deprivation of a constitutional right resulting in the restraint of a
person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive
penalty has been imposed, as such sentence is void as to such excess. 6

None of the above circumstances is present in the instant case.

Recall that petitioner was charged and convicted under Article 335 of the Revised Penal
Code which states:

Art. 335. When and how rape is committed. – Rape is committed by having carnal
knowledge of a woman under any of the following circumstances.

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by
two or more persons, the penalty shall be reclusion perpetua to death. (Emphasis
added)

Page 123 of 265

With the enactment of R.A. No. 8353, petitioner claims that the penalty of reclusion
perpetua has become excessive, as the new law now punishes rape with prision mayor,
citing Article 266-B as follows:7

Article 266-B. Penalties. --- x x x

Rape under paragraph 2 of the next preceding article shall be punished by prision
mayor.

Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be prision mayor to reclusion temporal.

x x x x. (Emphasis added)

Petitioner’s reliance on the above-mentioned portion of Article 266-B is misplaced. Note

that the penalty of prision mayor is imposed for rape committed under paragraph 2 of
Article 266-A which is committed by any person who inserts his penis into another
person’s mouth or anal orifice; or any instrument or object, into the genital or anal orifice
of another person. It bears stressing that petitioner, together with Rivera and Navarro,
was charged with and convicted of rape by having carnal knowledge of a woman using
force and intimidation under Article 335, which is now embodied in paragraph 1 of
Article 266-A.

The full text of Article 266-A reads:

Art. 266-A. Rape; When and How Committed. – Rape is committed –

1) By a man who shall have carnal knowledge of a woman under any

of the following circumstances:

a) Through force, threat or intimidation;lavvphil.net

b) When the offended party is deprived of reason or is otherwise

unconscious;

c) By means of fraudulent machination or grave abuse of authority;

d) When the offended party is under twelve (12) years of age or is

demented, even though none of the circumstances above be
present;

2) By any person who, under any of the circumstances mentioned in

paragraph 1 hereof, shall commit an act of sexual assault by
inserting his penis into another person’s mouth or anal orifice, or
any instrument or object, into the genital or anal orifice of another
person. (Emphasis added)

Page 124 of 265

Under Article 266-B of the Revised Penal Code, as amended by R.A. No. 8353, the
penalty for rape committed by two or more persons, using force, threat or intimidation is
reclusion perpetua to death, to wit:

Art. 266-B. Penalties. – Rape under paragraph 1 of the next preceding article shall be
punished by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

xxxx

It must be emphasized that the same penalties were imposed under Article 335 of
the Revised Penal Code prior to the enactment of R.A. No. 8353. It is clear
therefore that R.A. No. 8353 did not downgrade the applicable penalties to
petitioner’s case.

Considering that the penalty of reclusion perpetua was properly imposed and that
petitioner is confined under authority of law, the petition for the issuance of a writ
of habeas corpus is hereby DENIED.

SO ORDERED.

17.Barredo vs. Vinarao., G.R. No. 168728, August 2, 2007

G.R. No. 168728 August 2, 2007

SAMUEL BARREDO y GOLANI, Petitioner,

vs.
HON. VICENTE VINARAO, Director, Bureau of Corrections, Respondent.

DECISION

CORONA, J.:

This is a petition for the issuance of a writ of habeas corpus. Petitioner Samuel Barredo
y Golani prays for his release from the maximum security compound of the New Bilibid
Prison in Muntinlupa City on the ground that he has already served the sentence
imposed on him in Criminal Case Nos. Q-92-38559 and Q-92-38560.

Criminal Case No. Q-92-385591 was for carnapping2 while Criminal Case No. Q-92-
38560 was for illegal possession of firearms.3 Both cases were filed in the Regional
Trial Court (RTC) of Quezon City, Branch 103.4

Page 125 of 265

The cases were tried jointly. After trial, the court rendered a joint decision finding
petitioner guilty of both charges. Relevant parts of the dispositive portion read:

ACCORDINGLY, judgment is hereby rendered in Q-92-38559 finding Samuel Barredo,5

xxx GUILTY beyond reasonable doubt xxx of the crime of Carnapping aggravated and
qualified by the frustrated killing of Ciriaco Rosales and [he is] hereby sentenced to
undergo an imprisonment term of THIRTY (30) YEARS;

xxx xxx xxx

In Q-92-38560, Samuel Barredo is hereby found GUILTY as principal beyond

reasonable doubt of the crime of violation of P.D. 1866 and he is hereby sentenced to
an imprisonment term of EIGHTEEN (18) YEARS and ONE (1) DAY of Reclusion
Temporal.

xxx xxx xxx

SO ORDERED.6

No appeal was made, hence, the decision became final and executory.

Petitioner was committed to the custody of the Quezon City Jail (as detention prisoner)
on March 15, 1993.7 After conviction, he was transferred to and confined at the
maximum security compound of the New Bilibid Prison in Muntinlupa City on July 23,
19948 where he is now still detained.

According to petitioner, as of August 2, 2004, he already served a total of 18 years. He

claims that, on October 9, 2001, the Board of Pardons and Parole passed a resolution
recommending the commutation of his sentence to a period of from 15 to 20 years. He
further points out that, based on the Bureau of Corrections’ revised computation table
for determining the time to be credited prisoners for good conduct while serving
sentence, he should only serve 14 years, 9 months and 18 days. Thus, this petition.

Is petitioner entitled to the writ of habeas corpus? No.

Writ of Habeas Corpus Will Not Issue If Detention Is By Virtue Of Valid Judgment

The writ of habeas corpus applies to all cases of illegal confinement, detention or
deprivation of liberty.9 It was devised as a speedy and effective remedy to relieve
persons from unlawful restraint.10 More specifically, it is a remedy to obtain immediate
relief for those who may have been illegally confined or imprisoned without sufficient
cause and thus deliver them from unlawful custody. 11 It is therefore a writ of inquiry
intended to test the circumstances under which a person is detained.12

The writ may not be availed of when the person in custody is under a judicial process or
by virtue of a valid judgment.13 However, the writ may be allowed as a post-conviction

Page 126 of 265

remedy when the proceedings leading to the conviction were attended by any of the
following exceptional circumstances:

(1) there was a deprivation of a constitutional right resulting in the restraint

of a person;

(2) the court had no jurisdiction to impose the sentence or

(3) the imposed penalty was excessive, thus voiding the sentence as to
such excess.14

The rule is that if a person alleged to be restrained of his liberty is in custody of an

officer under process issued by a court or judge or by virtue of a judgment or order of a
court of record the writ of habeas corpus will not be allowed. 15 Thus, Section 4, Rule
102 of the Rules of Court provides:

Sec. 4. When writ not allowed or discharge authorized. – If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule
be held to authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment under lawful
judgment. (emphasis supplied)

Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting
him for the crimes of carnapping and illegal possession of firearms. He is therefore not
entitled to the writ of habeas corpus.

Sentence is Void Insofar As It Failed to Impose an Indeterminate Sentence

As correctly pointed out by the Solicitor General, however, the trial court erred in
imposing a straight penalty of imprisonment for 30 years in the carnapping case. The
sentence imposed by the trial court deprived petitioner of the benefits of the
Indeterminate Sentence Law.16 Hence, it was void insofar as it failed to impose an
indeterminate sentence.

Since the crime was committed by means of violence against or intimidation of persons,
the imposable penalty under the Anti-Carnapping Act of 1972 was imprisonment for not
less than 17 years and 4 months and not more than 30 years. 17 Furthermore, pursuant
to the Indeterminate Sentence Law, the court should have imposed an indeterminate
sentence with a maximum term not exceeding the maximum fixed by the special penal
law and a minimum term not less than the minimum term prescribed by the same law.18
Therefore, the proper imposable penalty is imprisonment not for 30 years but for an

Page 127 of 265

indeterminate sentence of 17 years and 4 months as minimum to 30 years as
maximum.19

Reduction of Penalty Under Amendatory Law Should be Applied Retroactively

Petitioner is likewise entitled to a reduction of the penalty imposed upon him in the
illegal possession of firearms case in view of the passage of RA 8294. The law reduced
the penalty for simple illegal possession of firearms to prision correccional in its
maximum period and a fine of not less than P15,000. Being favorable to petitioner, RA
8294 should be applied retroactively to benefit him.20 Further applying the Indeterminate
Sentence Law, the proper imposable penalty is imprisonment for 4 years, 2 months and
1 day as minimum to 6 years as maximum.21

Petitioner Has Not Yet Served The Penalties Imposed on Him

Petitioner has to serve the penalties imposed on him successively in the order of their
severity.22 Hence, he has to first serve the more severe penalty, i.e., that imposed in the
carnapping case: imprisonment for 17 years and 4 months as minimum to 30 years as
maximum. Only after he has served this will he commence serving the less severe
penalty imposed in the illegal possession of firearms case: imprisonment for 4 years, 2
months and 1 day as minimum to 6 years as maximum.23

Per the certification issued by the Bureau of Corrections,24 as of April 3, 2007, petitioner
has served a total of 18 years, 4 months and 26 days, inclusive of his good conduct
time allowance and preventive imprisonment. Thus, while he has already served the
minimum penalty in the carnapping case, he has not yet served the minimum penalty in
the illegal possession of firearms case. Consequently, petitioner is not entitled to the
issuance of a writ of habeas corpus. Neither is he eligible for parole because only
prisoners who have served the minimum penalty imposed on them may be released on
parole on such terms and conditions as may be prescribed by the Board of Pardons and
Parole.25

Petitioner’s claim that the Board of Pardons and Parole passed a resolution
recommending the commutation of his sentence does not justify the issuance of the writ
of habeas corpus. Commutation of sentence is a prerogative of the Chief Executive.26
Hence, even if petitioner’s claim were true, the recommendation of the Bureau of
Pardons and Parole was just that, a mere recommendation. Until and unless approved
by the President, there is no commutation to speak of.

Accordingly, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Page 128 of 265

18.Office of the Solicitor General vs. Judge de Castro, A.M. No. RTJ-062018 (Formerly
Adm. Matter OCA-IPI No. 05-2360-RTJ, August 3, 2007

A.M. NO. RTJ-06-2018 August 3, 2007

(Formerly Adm. Matter OCA-IPI No. 05-2360-RTJ)

OFFICE OF THE SOLICITOR GENERAL, complainant,

vs.
JUDGE ANTONIO I. DE CASTRO Presiding Judge, Regional Trial Court, Branch 3,
Manila, respondent.

RESOLUTION

TINGA, J.:

On 30 September 2005, the Office of the Solicitor General (OSG), through Solicitor
General Alfredo Benipayo, filed an administrative complaint1 against Executive
Judge Antonio Eugenio, Jr. and Judge Antonio I. De Castro (respondent), for (a)
knowingly rendering an unjust judgment; (b) grossly disregarding the law and
prevailing jurisprudence; and (c) dishonesty and abuse of authority.

The complaint stemmed from the Order dated 9 September 2005 2 issued by
respondent in the habeas corpus proceedings docketed as Special Proceedings
No. 05-113455 and raffled to respondent's sala. Said order temporarily restrained
the deportation of a Chinese national, Gao Yuan, for 17 days. Complainant alleges
that the order was in blatant disregard of Commonwealth Act (C.A.) No. 613 or the
Philippine Immigration Act of 1940, as amended, the pertinent provisions of the Rules of
Court on habeas corpus, and prevailing jurisprudence thereon. As to Judge Eugenio,
Jr., he had earlier, on 8 September 2005, issued an order3 restraining Gao Yuan's
deportation for 72 hours.

Gao Yuan is a national of the People's Republic of China (PROC) and holder of a
special non-immigrant visa to the Philippines and an immigrant visa to Canada. On 6
September 2005, Gao Yuan, her husband James Mahshi, a U.S. national, and their two
young children were on their way to a vacation in Canada when Philippine immigration
officers arrested Gao Yuan and prevented her from boarding her flight. Gao Yuan's
arrest was by virtue of an order issued by Bureau of Immigration (BI) Commissioner
Alipio Fernandez, Jr., which, in turn, was a response to a letter4 dated 9 August 2004
from the Consul General of the PROC which alleged that Gao Yuan was a fugitive from
justice and charged with embezzlement by Chinese police and requested her arrest and
deportation to China. Gao Yuan was detained at the BI Detention Center.

James Mahshi filed on 8 September 2005 before the Regional Trial Court (RTC) of
Manila the Petition for the writ of Habeas Corpus with Application for Temporary
Restraining Order (TRO) and Writ of Preliminary Injunction,5 impleading

Page 129 of 265

Commissioner Fernandez as respondent. It was alleged that Gao Yuan was illegally
detained since she "is not a fugitive from justice as in fact, she was not charged with
any crime at the time she left China in 2001" and "[a]t such time, no case had been filed
against her, no process to compel her testimony had been issued and no travel
restrictions had been imposed on her by Chinese authorities." 6 It was also alleged that
Gao Yuan had filed with the Department of Justice a petition for asylum as a political
refugee. James Mahshi also filed a Supplement to Application for TRO and Writ of
Preliminary Injunction7 praying for the amendment of the 8 September 2005 order to
include restraining Commissioner Fernandez from enforcing any order of commitment of
Gao Yuan and directing her immediate release.

On the same day, Executive Judge Eugenio, Jr. of the RTC of Manila issued a 72-
hour TRO8 enjoining the Commissioner from initiating any deportation
proceeding and/or directing the suspension of any such proceedings against Gao
Yuan. The case was then raffled to Branch 3 of the Manila RTC presided by
respondent.

Commissioner Fernandez, through the OSG, filed a Return of the Writ 9 on 8 September
2005. The Return informed the RTC that Gao Yuan's passport had been cancelled on
18 November 200410 by the PROC and her apprehension had been expressly
requested by the Embassy of the PROC. Gao Yuan's summary deportation was already
ordered11 upon prior filing of a charge sheet12 for being an undocumented and
undesirable alien by the BI Board of Commissioners.

On 9 September 2005, a summary hearing on the issue of injunction was held and the
parties, upon the suggestion of respondent, agreed to the extension of the 72-hour TRO
by 17 days or up to 28 September 2005. The parties were required to file their
memoranda or position papers until 19 September 2005. The Commissioner was then
given until 12 September 2005 to comment on the Supplement to Application for TRO
filed by James Mahshi which prayed for the release of Gao Yuan.13

On 13 September 2005, respondent promulgated an Order of Release14 directing

Commissioner Fernandez to immediately discharge the custody of Gao Yuan, she
having filed her cash bond in the amount of P250,000.00. However, upon service of the
order, the BI refused to release Gao Yuan as there was no BI clearance. Commissioner
Fernandez filed an Urgent Motion for Reconsideration 15 of the said order on 16
September 2005.

During the hearing for clarificatory questioning on 16 September 2005, where Gao Yuan
was presented, respondent insisted on releasing Gao Yuan from custody. Through an
interlocutory order,16 the RTC took custody of Gao Yuan. The RTC clarified that it was
only a provisional release for the duration of the TRO or up to 28 September 2005,
subject to certain conditions: the posting of an additional cash bond of P100,000.00; (2)
her movements were to be monitored by the court; (3) the issuance of a warrant of
arrest against her should she try to hide; and (4) the signing by Gao Yuan and her
husband of an undertaking that she will come to court at any given time she is called.

Page 130 of 265

Respondent based the provisional release on humanitarian reasons, considering that
Gao Yuan was merely wanted as a witness in a case in the PROC and she is a nursing
mother to a 17-month old child.

Commissioner Fernandez was compelled to file a Notice of Appeal upon Gao Yuan's
release from the BI's custody.

On 19 September 2005, respondent issued an Order17 reiterating that Gao Yuan's

release was only temporary, thus making the Commissioner's Notice of Appeal
premature. The Commissioner was then given additional time to file his memorandum.

On 23 September 2005, respondent ordered the issuance of a warrant of arrest 18

against Gao Yuan for failing to appear before the trial court after having been directed to
do so and denied James Mahshi's prayer for issuance of a writ of injunction. 19

Complainant OSG contends that Gao Yuan's release on bail is illegal since such falls
within the exclusive jurisdiction of the Bureau of Immigration and not in the regular
courts pursuant to Section 37(e) of C.A. No. 613. Citing Commissioner Rodriguez v.
Judge Bonifacio,20 complainant contends that the RTC has no power to release the
alien on bail even in habeas corpus proceedings.

Complainant also points out that the grant of injunction embodied in the 13 September
2005 Order was invalid for the release was only prayed for in an unverified Supplement
to Application for TRO and Writ of Preliminary Injunction. In addition, the duly verified
petition for habeas corpus did not include such prayer. There being no verified
application for the issuance of a writ of mandatory injunction, respondent openly
disregarded Sec. 4(a), Rule 58 of the 1997 Rules of Civil Procedure in issuing the 13
September 2005 Order.

Complainant insists that the Notice of Appeal it filed is proper since respondent already
ordered the release of Gao Yuan, which was the very action in the petition for habeas
corpus, notwithstanding respondent's reasoning that the release was merely provisional
or temporary. Respondent already decided the habeas corpus suit on the merits and his
declaration of the notice of appeal as premature is also illegal.

Lastly, complainant argues that respondent is guilty of dishonesty for making it appear
that Solicitor Danilo Leyva agreed to the extension of the TRO and did not oppose the
release of Gao Yuan when the contrary is true.

Both Judge Eugenio, Jr. and respondent were required to comment.

Judge Eugenio, Jr. submitted his Comment21 dated 9 December 2005 and
Supplemental Comment22 dated 20 December 2005. Respondent submitted his
Comment23 and Letter-Comment,24 both dated 17 January 2006.

Page 131 of 265

The case against Judge Eugenio, Jr. was dismissed per Resolution 25 dated 30 August
2006, as it was found that even though Judge Eugenio, Jr. erred in issuing the TRO, it
was a mere judgment error not meriting administrative sanction. The same resolution
also resolved to re-docket the complaint against respondent as a regular administrative
matter and refer it to a Court of Appeals Justice for investigation, report and
recommendation. The case was eventually raffled to Justice Arcangelita Romilla-
Lontok.

After a hearing on 26 October 2006 and the submission of written offer of evidence of
both parties, Justice Romilla-Lontok submitted her Report and Recommendation.

As summarized in the Report and Recommendation, respondent averred in his

comments that: (a) the RTC had jurisdiction to take cognizance of the petition for
habeas corpus; (b) he acted in accordance with law in issuing the Orders dated 9, 13
and 16 September 2005; and (c) the proper remedy of a party aggrieved by the decision
of a court is to elevate the matter by appeal or certiorari and not to file an administrative
case against the judge.

On the issue of jurisdiction, respondent argues that under Sec. 21 of Batas Pambansa
Blg. 129, RTCs have original jurisdiction in the issuance of writs of habeas corpus which
may be enforced in any part of their respective regions, and the material averments in
James Mahshi's petition for habeas corpus sufficiently raised the issue of legality of Gao
Yuan's detention. The remedy of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived of his liberty, and the prayer
for injunctive relief enjoining the deportation of Gao Yuan is merely incidental to the
question of legality of her detention. Respondent also points out that the Summary
Deportation Order came after the filing of the habeas corpus petition, so that the
jurisdiction of the RTC was already vested upon service of summons on respondent,
and the BI cannot remove such jurisdiction by issuing a Summary Deportation Order.

Justice Romilla-Lontok agrees that the RTC, and in this particular case, Branch 3 with
respondent presiding, had clearly been vested with jurisdiction over the petition for
habeas corpus, based on the allegations in the petition that Gao Yuan had been
detained even without a judicial writ or order for her commitment. 26

As to the issuance of the Orders dated 9, 13 and 16 September 2005, respondent

observes that these were all in the nature of TROs or injunctive reliefs, so issued after
careful study and deliberation of the facts of the case and the clear presence of the
requisite elements for the grant of such reliefs. Respondent believes that the factual
milieu showed that Gao Yuan's right to due process of law was whimsically disregarded.
He also insists that there is no rule requiring that James Mahshi's Supplement to the
application for TRO and Writ of Preliminary Injunction be verified. He adds that there
was sufficient showing of grave injustice and irreparable injury to Gao Yuan if her
release was not immediately effected.

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On this point, Justice Romilla-Lontok disagrees with respondent. She points out that the
return of the writ filed by the Commissioner of Immigration formally informed respondent
about a deportation case against Gao Yuan with the BI Board of Commissioners,
supported by attachments consisting of the Charge Sheet and Summary Deportation
Order. From the time said return was filed, respondent's actions should have been
governed by Section 4, Rule 102 of the Revised Rules of Civil Procedure. Pursuant
thereto, the orders releasing Gao Yuan upon posting of a cash bond and placing her
under the custody of the RTC are devoid of legal basis. According to Commissioner
Rodriguez v. Judge Bonifacio,27 cited in the Report, habeas corpus proceedings are
premature and should be dismissed where the BID has not yet completed its hearing
and investigation with respect to an alien and there is no showing that it is unduly
delaying its decision. When an alien is detained by the BID pursuant to an order of
deportation, RTCs have no power to release said alien on bail even in habeas corpus
proceedings, because there is no law authorizing it.

Respondent finally argues that the proper remedy of a party aggrieved by a decision of
a court is to elevate the matter by appeal or certiorari and not to file an administrative
case against the judge. He insists that his acts were in accordance with law and
jurisprudence and were justified by the circumstances of the case. He views the case as
harassment and prays for its dismissal.

Justice Romilla-Lontok concedes that respondent issued the assailed orders without
any ill-will, but rather was motivated by humanitarian considerations. Thus, she
concludes that his error was not due to any conscious and deliberate effort to commit an
injustice. However, she emphasized the duty of members of the judiciary to keep
abreast of the laws, rulings and jurisprudence affecting their jurisdiction. A judge owes it
to the public and the administration of justice to know the law he is supposed to apply to
a given controversy and to exhibit more than just a cursory acquaintance of such laws
and procedures. Finding that respondent fell short of the conduct expected of a judge,
she recommends the imposition of a two (2)-month suspension with admonishment that
similar conduct in the future will be dealt with more severely.28

The Court agrees with Justice Romilla-Lontok's finding that respondent's conduct has
proven inadequate to satisfy the required standards, but deems it proper to increase the
period of suspension to three (3) months and one (1) day without pay.

A petition for the issuance of a writ of habeas corpus is a special proceeding governed
by Rule 102 of the Revised Rules of Court. The objective of the writ is to determine
whether the confinement or detention is valid or lawful. If it is, the writ cannot be
issued.29 What is to be inquired into is the legality of his detention as of, at the earliest,
the filing of the application for the writ of habeas corpus, for even if the detention is at its
inception illegal, it may, by reason of some supervening events, such as the instances
mentioned in Sec. 4 of Rule 102, be no longer illegal at the time of the filing of the
application.30 Section 4, Rule 102 provides:

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 SEC. 4. When writ not allowed or discharge authorized. —If it appears that
the person to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or
order of a court of record, and that court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment under
lawful judgment.

Thus, once a person detained is duly charged in court, he may no longer question his
detention through a petition for issuance of a writ of habeas corpus. His remedy would
be to quash the information and/or the warrant of arrest duly issued. The writ of habeas
corpus should not be allowed after the party sought to be released had been charged
before any court. The term "court" includes quasi-judicial bodies or governmental
agencies authorized to order the person's confinement, 31 like the Deportation Board of
the Bureau of Immigration.32

In the case at bar, the petition for habeas corpus was filed on 8 September 2005 and
was raffled on the same day to respondent's sala. The Return of the Writ was filed on 9
September 2004, accompanied by the Charge Sheet dated 7 September 2005 and the
Summary Deportation Order also dated 7 September 2005. When the petition was
filed by James Mahshi, a charge sheet and deportation order had already been
filed against Gao Yuan. By then, the restraint of Gao Yuan's liberty was already by
virtue of a lawful process. Clearly, respondent's court no longer had jurisdiction
over the petition for habeas corpus and it was error for respondent to order Gao
Yuan's release upon the filing of a cash bond and take full responsibility for the
release and custody of Gao Yuan.

Respondent's acts also disregarded the rule on burden of proof after the writ has been
returned as laid down in Sec. 13 of Rule 102. If the detention is by reason of or in
pursuance of law, the return is considered prima facie evidence of the validity of the
restraint and the petitioner therein has the burden of proof to show that the restraint is
illegal.33 The reason for this is the presumption that official duty has been regularly
performed.34 The transcript of stenographic notes of the hearing on 16 September 2005
shows that the allegations in the return that Gao Yuan had a pending deportation case
with the BI Board of Commissioners, as shown by the Charge Sheet, and that a
Summary Deportation Order was already issued against her and that she used an
expired Chinese passport in her attempt to leave the Philippines, were not controverted
by James Mahshi. It seems that respondent merely confirmed from Gao Yuan the
allegations in the petition for habeas corpus that she was not a fugitive from justice but
was merely wanted as a witness in a case and that she was a nursing mother to a 17-
month old baby.35 Believing that Gao Yuan's detention was without due process of law,

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respondent ordered that the court take custody of her and that she be not returned to
the BI Detention Center.36

The provisional or temporary release of Gao Yuan also effectively granted the petition
for habeas corpus insofar as the discharge of the detainee is concerned, since the main
prayer in a petition for habeas corpus relates to the release or discharge of the
detainee. The general rule is that the release, whether permanent or temporary, of a
detained person renders the petition for habeas corpus moot and academic. Such
release must be one which is free from involuntary restraints. 37 Gao Yuan's release,
while still subject to certain conditions, did not unduly restrain her movements or deprive
her of her constitutional freedoms. The conditions were deemed necessary by the court
below to ensure her attendance in the subsequent hearings on the case. Said
conditions did not at all restrict her freedom of movement as she was able to elude the
authorities who tried to arrest her for her failure to appear before the trial court on 23
September 2005.38

Respondent may also have been under the impression that the case before him was
one for extradition, particularly because Gao Yuan's arrest and detention were pursuant
to a request from the PROC to hold and deport her in connection with an embezzlement
case in China. If that were so, his acts of ordering Gao Yuan's release upon the filing of
a bond would have been sanctioned by this Court's ruling in Government of Hong Kong
Special Administrative Region, represented by the Philippine Department of Justice v.
Hon. Felixberto T. Olalia and Juan Antonio Muñoz39 which allows the prospective
extraditee to apply for bail, provided that he presents clear and convincing evidence that
he is not a flight risk and will abide with all the orders and processes of the extradition
court. However, the petition filed before respondent was one for habeas corpus which
raised the simple issue of whether Gao Yuan was held under lawful authority. The
Return filed by the Commissioner sufficiently established the basis of Gao Yuan's
detention, which were the Charge Sheet and Summary Deportation Order. By the time
the petition for habeas corpus was filed, there was already a legal basis to detain Gao
Yuan. Her confinement was not illegal. It was thus error for respondent to continue with
the proceeding and thereafter order her release upon posting of a cash bond.

It may be argued that in Government of Hong Kong Special Administrative Region v.

Olalia, the Court relied on three deportation cases40 which allowed bail to persons in
detention during the pendency of their cases, stating that if bail can be granted in
deportation cases, there is no justification why it should not also be allowed in
extradition cases. However, circumstances peculiar to the three deportation cases
existed that warranted admission to bail. In US v. Go-Sioco, where a Chinese facing
deportation for failure to secure the necessary certificate of registration was granted bail
pending his appeal, it was noted that said Chinese had committed no crime, was born in
the Philippines and lived here for more than 35 years, and at the time of the case was
living here with his mother, a Filipina. Said case was also brought under Act No. 702
which falls, by provision of said law, under the jurisdiction of the courts of justice. In
Mejoff v. Director of Prisons and Chirskoff v. Commissioner of Immigration, the
proposed deportees were stateless foreign nationals, not enemies, against whom no

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criminal charges had been formally made and who had been under detention for over
two years after attempts at having them deported failed. No such extraordinary
circumstances appear in the case at bar.

It should be noted too that Section 37 (9) (e) of the Philippine Immigration Act of 1940,
as amended, provides that "[a]ny alien under arrest in a deportation proceeding may be
released under bond or under such other conditions as may be imposed by the
Commissioner of Immigration." This provision confers upon the Commissioner the
power and discretion to grant bail in deportation proceedings, but does not grant to
aliens the right to be released on bail. The exercise by the Commissioner of such power
is discretionary. So too, the determination of the propriety of allowing the temporary
release on bail of the alien, subject to deportation under the Immigration Act, as well as
the conditions of such release falls within the exclusive jurisdiction of the Commissioner,
not the courts of justice. The reason for this is that the courts do not administer
immigration laws. The power of the Commissioner to grant bail in deportation
proceedings should be exercised when the alien is still under investigation, and not after
the order of deportation has been issued by the BI. 41 When an alien is detained by the
BI for deportation pursuant to an order of deportation by the Deportation Board, the
courts of first instance, now RTCs, have no power to release such alien on bail, even in
habeas corpus proceedings because there is no law authorizing it.42

Thus, we find respondent's failure to observe the law and procedure on petitions for
habeas corpus inexcusable, albeit done in good faith for humanitarian considerations
and in the honest belief that Gao Yuan's detention was in violation of due process.
Accordingly, respondent is administratively liable for gross ignorance of the law.

Ordinarily, to constitute gross ignorance of the law, the subject decision, order, or
actuation of the judge in the performance of his official duties should be contrary to
existing law and jurisprudence, and most importantly, he must be moved by bad faith,
fraud, dishonesty or corruption.43 In the present case, there is no finding of bad faith or
malice, but this does not excuse respondent. When the law is sufficiently basic, a judge
owes it to his office to simply apply it, and anything less than that would be constitutive
of gross ignorance of the law. In short, when the law is so elementary, not to be aware
of it constitutes gross ignorance of the law.44 While judges should not be held
accountable for every erroneous judgment rendered in good faith, such good faith is no
defense where the basic issues are simple and the applicable legal principle evident
and basic as to be beyond permissible margins of error.45

A judge is called upon to exhibit more than just a cursory acquaintance with statutes
and procedural rules; it is imperative that he be conversant with basic legal principles
and aware of well-settled authoritative doctrines.46 Competence and diligence are
prerequisites to the due performance of judicial office.47 When a judge displays an utter
unfamiliarity with the law and the rules, he erodes the confidence of the public in the
courts.48 There will be great faith in the administration of justice only if the party litigants
believe that the occupants of the bench cannot justly be accused of apparent deficiency

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in their grasp of legal principles.49 For disregarding jurisprudential pronouncements and
basic legal principles, respondent should be held liable.

Under Section 8 of A.M. No. 01-8-10-SC, amending Rule 140 of the Rules of Court on
the Discipline of Justices and Judges, which took effect on October 1, 2001, gross
ignorance of the law is classified as a serious charge which carries with it a penalty of
either dismissal from service, suspension from office without salary and other benefits
for more than three (3) but not exceeding six (6) months, or a fine of more than
P20,000.00 but not exceeding P40,000.00. Since it has not been established that the
infraction was motivated by malice or bad

faith, and in the absence of a showing that respondent had earlier been found to have
committed an administrative offense, it is just and reasonable to impose upon him the
penalty of suspension of three (3) months and one (1) day.

WHEREFORE, the Court finds respondent Judge Antonio I. De Castro of the Regional
Trial Court, Branch 3, City of Manila, guilty of gross ignorance of the law and is hereby
SUSPENDED for a period of THREE (3) MONTHS AND ONE (1) DAY without pay, with
a WARNING that commission of a similar offense will be dealt with more severely.

SO ORDERED.

19.Office of the Court Administrator vs. Judge Perello, A.M. No. RTJ-051952,
December 24, 2008

A.M. No. RTJ-05-1952 December 24, 2008

OFFICE OF THE COURT ADMINISTRATOR, complainant,

vs.
JUDGE NORMA C. PERELLO, former Clerk of Court LUIS C. BUCAYON II, Court
Stenographers THELMA A. MANGILIT, CECILIO B. ARGAME, MARICAR N.
EUGENIO, and RADIGUNDA R. LAMAN and Interpreter PAUL M. RESURRECCION,
all of the Regional Trial Court, Branch 276, Muntinlupa City, respondents.

DECISION

LEONARDO-DE CASTRO, J.:

The instant case stemmed from the judicial audit conducted by the Office of the Court
Administrator (OCA) in all seven (7) branches of the Regional Trial Court in Muntinlupa
City, including Branch 276 then presided by herein respondent Judge Norma C. Perello

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(Judge Perello). The audit was prompted by reports of perceived irregular disposition of
petitions for habeas corpus by the said court.

In its Memorandum1 dated January 25, 2004 and submitted to the OCA, the audit team
reported that for the period 1998-2004, a total of 219 petitions for habeas corpus
were assigned to Branch 276, the subject matters of which are classified into (a)
hospitalization; (b) custody of minors; (c) illegal possession of firearms; and (d)
violation of Republic Act (R.A.) No. 6425, otherwise known as the Dangerous Drugs
Act of 1972. The records for 22 of these cases were not presented to the audit team,
while the case folders of about a hundred cases did not contain copies of the decisions
of conviction. The audit team also noted a huge disparity in the number of petitions for
habeas corpus raffled in Branch 276 as against those raffled in the other branches,
which led the team to doubt if the raffle had been conducted with strict regularity
considering the fact that Judge Perello was the Executive Judge that time.

The audit team likewise reported several substantive and procedural lapses relative to
the disposition of habeas corpus cases in Branch 276, such as (a) failure of the branch
clerk of court to present to the audit team the case folders of 22 petitions and to send
notices/summons to the Office of the Solicitor General or the Office of the City
Prosecutor; (b) lack of return of the writs issued to the officials of the Bureau of
Corrections; (c) absence of certificate of detention/confinement from the Bureau of
Corrections; (d) absence of copies of the judgment of conviction; (e) failure of the court
stenographer to transcribe the stenographic notes and attach the transcript to the
records of each case; and (f) failure on the part of the court interpreter to prepare the
Minutes of the court sessions or hearings.

Finally, the audit team observed that in some of the petitions for habeas corpus,
respondent Judge Perello erred in ordering the release of the prisoners before they
have served the full term of their sentence.

Thus, the audit team recommended to the OCA to consider the judicial audit report as
an administrative complaint against (a) Judge Perello and Clerk of Court Atty. Luis
Bucayon II for gross ignorance of the law, grave abuse of discretion and grave
misconduct; and (b) Court Stenographers Thelma Mangilit, Cecilio Argame, Maricar
Eugenio and Radigunda Laman, and Court Interpreter Paul Resurreccion for gross
inefficiency.

In its Resolution dated March 2, 2005, the Court adopted the aforesaid
recommendation.2

The OCA, through its 1st Indorsement dated September 9, 2005, directed the herein
respondents to comment on the audit team's recommendations.3

In her Comment4 dated October 10, 2005, Judge Perello opined that "the Audit Team
that evaluated these Habeas corpus cases filed with this Court are probably not
lawyers, hence, are not conversant with the Constitution, with jurisprudence, and the

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Rules on the grant of the Writ of Habeas corpus and the retroactivity of laws." She
insisted that her decisions ordering the release of the prisoners who were serving their
sentence for illegal possession of firearms and violation of the Dangerous Drugs Act
were in accordance with law and jurisprudence. For those convicted of illegal
possession of firearms under the old law (Presidential Decree No. 1866), she applied
retroactively the provisions of the amendatory law or R.A. No. 8294, 5 pursuant to Article
22 of the Revised Penal Code which provides for the retroactive application of laws that
are favorable to the accused even to those already convicted and serving sentence.
Inasmuch as R.A. No. 8294 imposed the penalty of six (6) years only, it was incumbent
upon her to grant the writs to those prisoners who have been imprisoned for eight (8)
years already. For those convicted for violation of R.A. No. 6425, she applied the said
law and not the amendatory law or R.A. No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, mainly because it aggravated the
penalty and is therefore not favorable to them.

To refute the accusations against her, Judge Perello enumerated her credentials and
qualifications and alleged that most of her decisions were upheld by the Court attesting
to her competence in applying the law. She claimed that in all the petitions she
granted, the prisoners therein were all cleared by the National Bureau of
Investigation to have no pending cases. The Bureau of Corrections was always
directed to produce the records and reason for the confinement of the concerned
prisoners. If from the records, the prisoner was found to have already served more than
the maximum of the imposable penalty, then she would order the release of the prisoner
in open court, without fear or favor. Judge Perello asserted that she had served with
utmost dedication and honesty in all her more than 40 years of government service.

For his part, Atty. Luis Bucayon II, Branch Clerk of Court, explained in his Comment6
that while he failed to present the case folders and records of 22 petitions to the audit
team at the time the audit was conducted at their branch, there was an agreement
between him and the audit team that the latter could pick up these folders and records
before the end of their audit. However, the audit team failed to return to get these case
records. He claimed to be baffled as to how his alleged failure to make the records
available to the audit team could constitute gross ignorance of the law, grave abuse of
discretion and grave misconduct. Atty. Bucayon likewise manifested that he had
transferred to the Public Attorney's Office of the Department of Justice as of July 26,
2004 and was issued a clearance by the OCA.

On the other hand, Court Interpreter Paul Resurreccion averred in his Comment 7 that all
petitions for habeas corpus have their corresponding Minutes but these were not
attached to the records because the Branch Clerk of Court refused to put his remarks
and findings thereon. He further claims that he always made it a point to prepare the
Minutes and his co-employees could attest to this fact.

Finally, Thelma Mangilit, Cecilio Argame, Maricar Eugenio and Radigunda Laman, all
Stenographers of Branch 276, submitted their Joint Comment8 dated October 12, 2005
and Joint Supplemental Comment9 dated October 19, 2005. According to them, Branch

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276 had the heaviest case load among all the branches in Muntinlupa City. Despite this,
they allegedly religiously attended the hearings and transcribed their notes thereafter.
With respect to the petitions for habeas corpus, they saw no need to transcribe their
stenographic notes as the proceedings therein were non-adversarial in nature. They
prioritized those cases which were adversarial and on appeal.

In the Agenda Report10 dated March 9, 2006, then Court Administrator Presbitero J.
Velasco, Jr. submitted the following recommendations:

1. respondent Judge Norma C. Perello be FOUND GUILTY of GROSS

IGNORANCE OF THE LAW AND JURISPRUDENCE and be meted the
penalty of SUSPENSION for three (3) months without salary and benefit;

2. the complaint against Atty. Luis Bucayon be DISMISSED for being moot
and academic;

3. respondents Court Stenographers Thelma Mangilit, Cecilio Argame,

Maricar Eugenio and Radigunda Laman and respondent Court Interpreter
Paul Resurreccion be FOUND GUILTY of SIMPLE NEGLECT OF DUTY
and be FINED in the amount of Five Thousand Pesos (P5,000.00).11

The Court thereafter referred the administrative matter to Justice Conrado Molina,
Consultant of OCA, for investigation, report and recommendation.12

On August 1, 2007, the Court required the parties to manifest their willingness to submit
the case for decision on the basis of the pleadings filed.13 All the respondents
manifested that they were submitting the case for decision.

On November 21, 2007, Justice Molina submitted his report and adopted entirely the
recommendations of the Court Administrator.14

We agree with the findings of the Court Administrator as adopted by the Investigating
Justice, but modify the recommendation in regard to the penalty imposed upon Judge
Perello.

It is the contention of Judge Perello that the prisoners she released were all
convicted under the old law, R.A. No. 6425, and not under the new law, R.A. No.
9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002
which imposes the penalty of life imprisonment to death regardless of the
quantity of the drug involved.15 She maintains that the provisions of R.A. No. 9165
cannot be given retroactive effect insofar as these prisoners are concerned for
the main reason that it would not be favorable to them. Thus, according to Judge
Perello, the provisions of R.A. No. 6425, as interpreted in the case of People v. Simon,16
must be applied to the released prisoners. Citing the Simon case, she insisted that the
maximum imposable penalty for violation of R.A. No. 6425 where the quantity involved
is 750 grams or less is six (6) months only, which was the reason why she ordered the

Page 140 of 265

immediate release of the prisoners because they had already served two (2) years of
imprisonment.

While we agree with respondent judge that R.A. No. 9165 cannot be retroactively
applied to the prisoners involved in the cases audited, we, however, are not impressed
with Judge Perello's justification in granting the writs. Such ratiocination on her part
betrays a lack of understanding of the rule on graduation of penalties. Nowhere in the
cited case of Simon does it state that the maximum penalty shall be six (6) months
where the quantity is less than 750 grams. The Simon case clarified the penalty to be
imposed vis-à-vis the quantity of the drug involved, such that prision correccional shall
be imposed if the drug is below 250 grams; prision mayor if the quantity is from 250 to
499 grams; and reclusion temporal if the drug is from 500 to 750 grams.17 The same
case likewise declared that while modifying circumstances may be appreciated to
determine the periods of the corresponding penalties, or even reduce the penalty by
degrees, in no case should such graduation of penalties reduce the imposable penalty
beyond or lower than prision correccional.18

The penalty of prision correccional is composed of three periods ─ the minimum which
ranges from 6 months and 1 day to 2 years and 4 months, the medium which is from 2
years, 4 months and 1 day to 4 years and 2 months, and the maximum which ranges
from 4 years, 2 months and 1 day to 6 years. As found by the audit team, Judge Perello
considered only the minimum period of prision correccional in granting the writs for
habeas corpus such that when the prisoners had served imprisonment for a period of
two (2) years, she immediately ordered their release. This is clearly erroneous because
the petition for habeas corpus cannot be granted if the accused has only served the
minimum of his sentence as he must serve his sentence up to its maximum term.19 The
maximum range of prision correccional is from 4 years, 2 months and 1 day to 6 years.
This is the period which the prisoners must have served before their applications for
writs of habeas corpus may be granted.

In obstinately granting the writs of habeas corpus even if the convicted prisoners had
only served the minimum period of their sentence, Judge Perello displayed a blatant
disregard of the rule on graduation of penalties as well as settled jurisprudence
tantamount to gross ignorance of the law. As a trial judge, respondent is the visible
representation of law and justice. Under Canon 1.01 of the Code of Judicial Conduct,
she is expected to be "the embodiment of competence, integrity and independence."
Judges are expected to keep abreast of developments in law and jurisprudence. 20 He
should strive for excellence exceeded only by his passion for truth, to the end that he be
the personification of justice and the Rule of Law. When the law is sufficiently basic, a
judge owes it to his office to simply apply it; anything less than that would be gross
ignorance of the law.21 Judge Perello must thereby have more than a cursory
knowledge of the law on graduation of penalties and the imposable penalty for violation
of the Dangerous Drugs Act. Indeed, the facts obtaining in this case speak of other
dubious circumstances affecting Judge Perello's integrity and competence too glaring to
ignore.

Page 141 of 265

Notably, the record shows that Judge Perello granted the writs of habeas corpus
even without the pertinent copies of detention and judgment of conviction.22 This
is contrary to the provisions of Section 3(d) of Rule 102 of the Rules of Court, to
wit:

Sec. 3. Requisites of application therefor. - Application for the writ shall be

by petition signed and verified either by the party for whose relief it is
intended, of by some person in his behalf, and shall set forth:

xxx xxx xxx

(d) A copy of the commitment or cause of detention of such person, if it

can be procured without impairing the efficiency of the remedy; xxx.

The Rules clearly require that a copy of the commitment or cause of detention must
accompany the application for the writ of habeas corpus. Obviously, Judge Perello
deviated from the guidelines laid down in Section 3(d) of Rule 102 of the Rules of Court.
It must be emphasized that rules of procedure have been formulated and promulgated
by this Court to ensure the speedy and efficient administration of justice. Failure to
abide by these rules undermines the wisdom behind them and diminishes respect for
the rule of law. Judges should therefore administer their office with due regard to the
integrity of the system of law itself, remembering that they are not depositories of
arbitrary power, but judges under the sanction of law.23 Indeed, Judge Perello's
stubborn unwillingness to act in accordance with the rules and settled jurisprudence
shows her refusal to reform herself and to correct a wrong, tantamount to grave abuse
of discretion.

Be that as it may, however, we agree with the Court Administrator that there is no merit
in the charge of grave misconduct leveled against Judge Perello. For grave misconduct
to exist, the judicial act complained of should be corrupt or inspired by an intention to
violate the law or a persistent disregard of well-known legal rules.24 Here, it appears that
she was not motivated by any corrupt or vicious motive. As the Court Administrator puts
it:

xxx. Except for the insinuation that there has been connivance among all
court staff in railroading the process of handling these cases, there was no
showing that in releasing the petitioners prematurely, respondent was
motivated by corrupt motives. On the contrary, respondent vehemently
denies this accusation. In her comment, she stated that she protests with
pain that she has always been viewed and unjustly condemned as a
wrongdoer on an erroneous impression that she had benefited and had
reaped riches for doing her job which she did with compassion, fairness
and justice as the law and jurisprudence dictates. Indeed, if respondent
judge or a court employee should be disciplined for a grave offense, the
evidence against him should be competent and derived from direct

Page 142 of 265

 knowledge. Charges based on mere suspicion should not be given
credence.25

At this juncture, it is worth mentioning that Judge Perello had been previously charged
with and found guilty of committing several administrative infractions, namely: (1) gross
ignorance of the law for which she was suspended for six (6) months; 26 (2) undue delay
in transmitting to the Court of Appeals the records of a case for which she was fined
P20,000.00;27 (3) dereliction of duty for which she was fined P5,000.00;28 (4) conduct
unbecoming a judge for which she was admonished; 29 and most recently (5) grave
abuse of discretion, grave abuse of authority, knowingly rendering an unjust judgment,
gross ignorance of the law and/or procedure for which she was fined in the amount of
P10,000.00.30 It is therefore evident that Judge Perello had a penchant for committing
infractions during her tenure.

In sum, we find Judge Perello liable for ignorance of the law and jurisprudence
and for abuse of discretion. These are serious charges under Section 8, Rule 140 of
the Revised Rules of Court. Section 11 of the same Rule provides that any of the
following sanctions may be imposed upon Judge Perello:

Sec. 11. Sanctions. ─ A. If the respondent is guilty of a serious charge,

any of the following sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or part of the benefits as the
Court may determine, and disqualification from reinstatement or
appointment to any public office, including government-owned and
controlled corporations. Provided, however, that forfeiture of benefits shall
in no case include accrued leave credits;

2. Suspension from office without salary and other benefits for more than
three (3) but not exceeding six (6) months; or

3. A fine of more than P20,000.00 but not exceeding P40,000.00.

The OCA imposed the penalty of suspension for three (3) months on Judge Perello. In
view, however, of Judge Perello's compulsory retirement31 which makes suspension
impossible to impose, the proper action is to impose a fine on her in the maximum
amount of P40,000.00, deductible from her retirement pay.

With regard to Atty. Bucayon's liability, the charges against him all pertained to his
duties as Branch Clerk of Court. It must be noted that during the pendency of this
administrative case against him, Atty. Bucayon had transferred to the Public Attorney's
Office of the Department of Justice on July 26, 2004 and was accordingly issued a
clearance by the OCA. Thus, we accept the OCA's recommendation to dismiss the
charges against him for being moot.

Page 143 of 265

On the liability of Court Stenographers Mangilit, Argame, Eugenio and Laman,
Administrative Circular 24-9032 imposes upon all court stenographers the duty to
transcribe all stenographic notes and to attach the transcripts of such notes to the
records of each case not later than twenty (20) days from the time the notes were taken.
The records reveal that respondent stenographers failed to transcribe the stenographic
notes and attach them to the records of each case. By their own admission, they did not
bother to transcribe the notes as the proceedings were non-adversarial in nature. We
find this explanation unacceptable considering that the requirement under the Circular
applies to all proceedings whether adversarial or not.

For their shortcomings in the transcription of the stenographic notes, respondent

stenographers have shown their utter lack of dedication to the functions of their office.
As trial court stenographers, they know, or ought to know, that they perform an
important role in running the machinery of our trial court system and that transcripts of
stenographic notes are vital for the speedy disposition of cases. Their dereliction of duty
which may jeopardize public faith and confidence in our judicial system should not be
countenanced. We, thus, find respondent stenographers guilty of simple neglect of duty.
While said offense carries a penalty of one month and one day to six months
suspension under the Uniform Rules on Administrative Cases in the Civil Service,33 we
deem it reasonable and sufficient to instead impose a fine of P5,000.00, as
recommended by the OCA, considering that it was their first offense. While this Court is
duty-bound to sternly wield a corrective hand to discipline its errant employees and to
weed out those who are undesirable, this Court also has the discretion to temper the
harshness of its judgment with mercy.34

Finally, as to Court Interpreter Resurreccion, the record would show that he had been
remiss in his duty to prepare the Minutes of the sessions or hearings and attach them to
the records of each case. He cannot escape liability by passing on the blame to the
Branch Clerk of Court whom he claimed refused to put his remarks on the Minutes.
Resurreccion's explanation is too flimsy to excuse him from administrative liability.
Among the duties of court interpreters is to prepare and sign "all Minutes of the
session."35 After every session they must prepare the Minutes and attach it. The
Minutes is a very important document because it gives a brief summary of the events
that took place at the session or hearing of a case. It is in fact a capsulized history of the
case at a given session or hearing, for it states the date and time of the session; the
names of the judge, clerk of court, court stenographer, and court interpreter who were
present; the names of the counsel for the parties who appeared; the party presenting
evidence; the names of witnesses who testified; the documentary evidence marked; and
the date of the next hearing.36 Failure to prepare the Minutes and attach them to the
records of a case constitutes simple neglect of duty and warrants disciplinary action.
Accordingly, Resurreccion is hereby fined the same amount of P5,000.00 as
recommended by the OCA.

We take this occasion once more to impress upon all respondents that the conduct of
every person connected with the administration of justice, from the presiding judge to
the lowest clerk, is circumscribed with a heavy burden of responsibility. A public office is

Page 144 of 265

a public trust. Since public officers are accountable to the people at all times, they must
strictly perform their duties and responsibilities. As the administration of justice is a
sacred task, this Court condemns any omission or act that may diminish the faith of the
people in the judiciary.37

IN VIEW OF THE FOREGOING, the Court finds Judge Norma C. Perello GUILTY of
gross ignorance of the law and abuse of discretion, for which she is meted a fine of
P40,000.00 to be deducted from her retirement benefits. Court Stenographers Thelma
Mangilit, Cecilio Argame, Maricar Eugenio and Radigunda Laman, and Court Interpreter
Paul Resurreccion are found GUILTY of simple neglect of duty, for which they are each
meted a fine of P5,000.00, and sternly warned that a repetition of the same shall be
dealt with more severely.

For being moot, the charges against Atty. Luis Bucayon II are hereby DISMISSED.

SO ORDERED.

20.Fletcher vs. The Director of Bureau of Corrections, UDK-14071, July 17, 2009

UDK-14071 July 17, 2009

MARTIN GIBBS FLETCHER, Petitioner,

vs.
THE DIRECTOR OF BUREAU OF CORRECTIONS or his representative,
Respondent.

RESOLUTION

CORONA, J.:

Petitioner Martin Gibbs Fletcher seeks his release from prison in this petition for
the issuance of the writ of habeas corpus. He claims that his prison sentence of
12 to 17 years was commuted by then President Fidel V. Ramos to nine to 12
years. Since he had already served 14 years, three months and 12 days, including
his good conduct allowance, his continued imprisonment is illegal.1

In its return to the writ, the Office of the Solicitor General (OSG) posited that the
petition should be denied for failure to comply with Section 3, Rule 102 of the
Rules of Court. In particular, the petition was neither signed nor verified by petitioner or
a person on his behalf or by his purported counsel. Moreover, it was not accompanied
by a copy of the cause of petitioner’s detention or commitment order.

The OSG further opposed the issuance of the writ on the following grounds: petitioner’s
prison sentence was never commuted by then President Ramos; he had not been

Page 145 of 265

granted the status of a colonist; there were other pending cases against him warranting
his continued detention2 and he was put under custody by virtue of a judicial process or
a valid judgment.

We disagree with the OSG insofar as it argues that the petition should be dismissed for
failure to comply with Section 3, Rule 102 of the Rules of Court. Strict compliance with
the technical requirements for a habeas corpus petition as provided in the Rules
of Court may be dispensed with where the allegations in the application are
sufficient to make out a case for habeas corpus. In Angeles v. Director of New
Bilibid Prison,3 we held that the formalities required for petitions for habeas corpus shall
be construed liberally. The petition for the writ is required to be verified but the defect in
form is not fatal.4 Indeed, in the landmark case of Villavicencio v. Lukban,5 this Court
declared that it is the duty of a court to issue the writ if there is evidence that a person is
unjustly restrained of his liberty within its jurisdiction even if there is no application
therefor. So long as this Court sits, technicality cannot trump liberty. Therefore, a
petition which is deficient in form, such as petitioner’s petition-letter in this case, may be
entertained so long as its allegations sufficiently make out a case for habeas corpus.6

The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful
restraint.7 The writ exists as a speedy and effectual remedy to relieve persons from
unlawful restraint and as an effective defense of personal freedom.8

Where the restraint of liberty is allegedly authored by the State, the very entity tasked to
ensure the liberty of all persons (citizens and aliens alike) within its jurisdiction, courts
must be vigilant in extending the habeas corpus remedy to one who invokes it. To
strictly restrict the great writ of liberty to technicalities not only defeats the spirit that
animates the writ but also waters down the precious right that the writ seeks to protect,
the right to liberty. To dilute the remedy that guarantees protection to the right is to
negate the right itself. Thus, the Court will not unduly confine the writ of habeas corpus
in the prison walls of technicality. Otherwise, it will betray its constitutional mandate to
promulgate rules concerning the protection and enforcement of constitutional rights. 9

Nonetheless, we agree with the OSG that petitioner is not entitled to the issuance of the
writ.

The writ of habeas corpus extends to all cases of illegal confinement or detention by
which any person is deprived of his liberty.10 However, Section 4, Rule 102 of the Rules
of Court provides:

Sec. 4. When writ not allowed or discharge authorized. – If it appears that the person
to be restrained of his liberty is in the custody of an officer under process issued
by a court or judge; or by virtue of a judgment or order of a court of record, and
that court or judge had jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall anything in this rule be held to

Page 146 of 265

authorize the discharge of a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment. (emphasis
supplied)1avvphi1

Plainly stated, the writ obtains immediate relief for those who have been illegally
confined or imprisoned without sufficient cause. The writ, however, should not be issued
when the custody over the person is by virtue of a judicial process or a valid judgment. 11

It is undisputed that petitioner was convicted of estafa in Criminal Case No. 95-995.12
On June 24, 1996, he was sentenced to imprisonment of 12 years of prision mayor as
minimum to 17 years and four months of reclusion temporal as maximum, with payment
of actual damages of P102,235.56.13

Based on petitioner’s prison records,14 he began serving his sentence on July 24, 1997.
He claims that after having served good conduct time allowance for 14 years, three
months and 12 days,15 he should now be released from prison.

We disagree.

A convict may be released on parole after serving the minimum period of his sentence.
However, the pendency of another criminal case is a ground for the disqualification of
such convict from being released on parole.16 Unfortunately, petitioner is again on trial
in Criminal Case No. 94-6988 for estafa.17 The case was filed as early as 1996 but he
was arraigned only on October 6, 2008. He pleaded not guilty to the charge against him.
Pre-trial was set on January 26, 2009.18 Clearly, he is disqualified from being released
on parole and consequently must serve out the entirety of his sentence.

We note the issuance of a warrant for petitioner’s arrest on March 8, 1996, the date he
was first set for arraignment in Criminal Case No. 94-6988. Pursuant to Section 4,
Rule 102 of the Rules of Court, the writ cannot be issued and petitioner cannot be
discharged since he has been charged with another criminal offense. 19 His
continued detention is without doubt warranted under the circumstances.

Petitioner asserts that his sentence in Criminal Case No. 95-995 was commuted by then
President Ramos. However, he presented no proof of such commutation. Other than
indorsements by the Chief Justice,20 Public Attorney’s Office21 and Undersecretary of
the Department of Justice,22 no document purporting to be the commutation of his
sentence by then President Ramos was attached in his petition and in his subsequent
missives to this Court. His barren claim of commutation therefore deserves scant
consideration, lest we be accused of usurping the President’s sole prerogative to
commute petitioner’s sentence in Criminal Case No. 95-995.23

Having established that petitioner’s continued imprisonment is by virtue of a valid

judgment and court process, we see no need to discuss petitioner’s other arguments.

WHEREFORE, the petition is hereby DISMISSED.

Page 147 of 265

SO ORDERED.

21,Go Sr. vs. Ramos, G.R. No. 16769, September 4, 2009

G.R. No. 167569 September 4, 2009

CARLOS T. GO, SR., Petitioner,

vs.
LUIS T. RAMOS, Respondent.

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

G.R. No. 167570

JIMMY T. GO, Petitioner,

vs.
LUIS T. RAMOS, Respondent.

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

G.R. No. 171946

HON. ALIPIO F. FERNANDEZ, JR., in his capacity as the Commissioner of the

BUREAU OF IMMIGRATION; ATTY. FAISAL HUSSIN and ANSARI M. MACAAYAN,
in their capacity as Intelligence Officers of the BUREAU OF IMMIGRATION,
Petitioners,
vs.
JIMMY T. GO a.k.a. JAIME T. GAISANO, Respondent.

DECISION

QUISUMBING, J.:

Before us are three petitions. G.R. Nos. 167569 and 167570 are petitions for review on
certiorari to set aside the October 25, 2004 Decision 1 and February 16, 2005
Resolution2 of the Court of Appeals in CA-G.R. SP No. 85143 that affirmed the
Decision3 dated January 6, 2004 and Order4 dated May 3, 2004 of the Regional Trial
Court (RTC) of Pasig City, Branch 167 in SCA No. 2218 upholding the preparation and
filing of deportation charges against Jimmy T. Go, the corresponding Charge Sheet 5
dated July 3, 2001, and the deportation proceedings thereunder conducted.

On the other hand, G.R. No. 171946, also a petition for review on certiorari, seeks to set
aside the December 8, 2005 Decision6 and March 13, 2006 Resolution7 of the appellate
court in CA-G.R. SP No. 88277.

Page 148 of 265

Considering that the three cases arose from the same factual milieu, the Court resolved
to consolidate G.R. Nos. 167570 and 167569 with G.R. No. 171946 per Resolution8
dated February 26, 2007.

These petitions stemmed from the complaint-affidavit9 for deportation initiated by

Luis T. Ramos before the Bureau of Immigration and Deportation (now Bureau of
Immigration) against Jimmy T. Go alleging that the latter is an illegal and
undesirable alien. Luis alleged that while Jimmy represents himself as a Filipino
citizen, Jimmy’s personal circumstances and other records indicate that he is not so. To
prove his contention, Luis presented the birth certificate of Jimmy, issued by the Office
of the Civil Registrar of Iloilo City, which indicated Jimmy’s citizenship as "FChinese."
Luis argued that although it appears from Jimmy’s birth certificate that his parents,
Carlos and Rosario Tan, are Filipinos, the document seems to be tampered, because
only the citizenship of Carlos appears to be handwritten while all the other entries were
typewritten. He also averred that in September 1989 or thereabout, Jimmy, through
stealth, machination and scheming managed to cover up his true citizenship, and with
the use of falsified documents and untruthful declarations, was able to procure a
Philippine passport from the Department of Foreign Affairs.

Jimmy refuted the allegations in his counter-affidavit,10 averring that the

complaint for deportation initiated by Luis was merely a harassment case
designed to oust him of his rightful share in their business dealings. Jimmy maintained
that there is no truth to the allegation that he is an alien, and insisted that he is a
natural-born Filipino. Jimmy alleged that his father Carlos, who was the son of a
Chinese father and Filipina mother, elected Philippine citizenship in accordance with
Article IV, Section 1, paragraph 411 of the 1935 Constitution and Commonwealth Act No.
62512 (Com. Act No. 625), as evidenced by his having taken the Oath of Allegiance on
July 11, 1950 and having executed an Affidavit of Election of Philippine citizenship on
July 12, 1950. Although the said oath and affidavit were registered only on September
11, 1956, the reason behind such late registration was sufficiently explained in an
affidavit. Jimmy added that he had even voted in the 1952 and 1955 elections. 13 He
denied that his father arrived in the Philippines as an undocumented alien, alleging that
his father has no record of arrival in this country as alleged in the complaint-affidavit
precisely because his father was born and raised in the Philippines, and in fact, speaks
fluent Ilonggo and Tagalog.14

With regard to the erroneous entry in his birth certificate that he is "FChinese," he
maintained that such was not of his own doing, but may be attributed to the employees
of the Local Civil Registrar’s Office who might have relied on his Chinese-sounding
surname when making the said entry. He asserted that the said office has control over
his birth certificate; thus, if his father’s citizenship appears to be handwritten, it may
have been changed when the employees of that office realized that his father has
already taken his oath as a Filipino.15 As regards the entry in his siblings’ certificates of
birth, particularly Juliet Go and Carlos Go, Jr., that their father is Chinese, Jimmy
averred that the entry was erroneous because it was made without prior consultation
with his father.16

Page 149 of 265

In a Resolution17 dated February 14, 2001, Associate Commissioner Linda L.
Malenab-Hornilla dismissed the complaint for deportation against Jimmy.
Associate Commissioner Hornilla affirmed the findings of the National Bureau of
Investigation tasked to investigate the case that Jimmy’s father elected Filipino
citizenship in accordance with the provisions of the 1935 Philippine Constitution. By
operation of law, therefore, the citizenship of Carlos was transmitted to Jimmy, making
him a Filipino as well.

On March 8, 2001,18 the Board of Commissioners (Board) reversed said dismissal,

holding that Carlos’ election of Philippine citizenship was made out of time.
Finding Jimmy’s claim to Philippine citizenship in serious doubt by reason of his father’s
questionable election thereof, the Board directed the preparation and filing of the
appropriate deportation charges against Jimmy.

On July 3, 2001, the corresponding Charge Sheet was filed against Jimmy, charging
him of violating Section 37(a)(9)19 in relation to Section 45(c)20 of Com. Act No. 613,
otherwise known as The Philippine Immigration Act of 1940, 21 as amended, committed
as follows:

xxxx

1. That Respondent was born on October 25, 1952 in Iloilo City, as evidenced by
a copy of his birth certificate wherein his citizenship was recorded as "Chinese";

2. That Respondent through some stealth machinations was able to

subsequently cover up his true and actual citizenship as Chinese and illegally
acquired a Philippine Passport under the name JAIME T. GAISANO, with the use
of falsified documents and untruthful declarations, in violation of the above-cited
provisions of the Immigration Act[;]

3. That [R]espondent being an alien, has formally and officially represent[ed] and
introduce[d] himself as a citizen of the Philippines, for fraudulent purposes and in
order to evade any requirements of the immigration laws, also in violation of said
law.

CONTRARY TO LAW.22

On November 9, 2001, Carlos and Jimmy filed a petition for certiorari and prohibition 23
with application for injunctive reliefs before the RTC of Pasig City, Branch 167, docketed
as SCA No. 2218, seeking to annul and set aside the March 8, 2001 Resolution of the
Board of Commissioners, the Charge Sheet, and the proceedings had therein. In
essence, they challenged the jurisdiction of the Board to continue with the deportation
proceedings.

Page 150 of 265

In the interim, the Board issued a Decision24 dated April 17, 2002, in BSI-D.C. No. ADD-
01-117, ordering the apprehension and deportation of Jimmy. The dispositive portion of
the decision reads:

WHEREFORE, in view of the foregoing, the Board of Commissioners hereby Orders the
apprehension of respondent JIMMY T. GO @ JAIME T. GAISANO and that he be then
deported to CHINA of which he is a citizen, without prejudice, however, to the
continuation of any and all criminal and other proceedings that are pending in court or
before the prosecution arm of the Philippine Government, if any. And that upon
expulsion, he is thereby ordered barred from entry into the Philippines.

SO ORDERED.25

In view of the said Decision, Carlos and Jimmy filed on June 13, 2002 a supplemental
petition for certiorari and prohibition26 before the trial court and reiterated their
application for injunctive reliefs. The trial court issued a writ of preliminary prohibitory
injunction pending litigation on the main issue, enjoining the Bureau from enforcing the
April 17, 2002 Decision.27 Later, however, the trial court dissolved the writ in a
Decision28 dated January 6, 2004 as a consequence of the dismissal of the petition.

Carlos and Jimmy moved for reconsideration. But their motion was likewise denied. 29

Following the dismissal of the petition in SCA No. 2218, the Board issued a warrant of
deportation30 which led to the apprehension of Jimmy. Jimmy commenced a petition for
habeas corpus, but the same was eventually dismissed by reason of his provisional
release on bail.31

Carlos and Jimmy then questioned the Decision in SCA No. 2218 as well as the
Resolution denying their motion for reconsideration by way of a petition for certiorari
before the Court of Appeals, docketed as CA-G.R. SP No. 85143. They imputed grave
abuse of discretion by the trial court for passing upon their citizenship, claiming that
what they asked for in their petition was merely the nullification of the March 8, 2001
Resolution and the charge sheet.

The appellate tribunal dismissed the petition.32 It did not find merit in their argument that
the issue of citizenship should proceed only before the proper court in an independent
action, and that neither the Bureau nor the Board has jurisdiction over individuals who
were born in the Philippines and have exercised the rights of Filipino citizens. The
appellate tribunal also rejected their claim that they enjoy the presumption of being
Filipino citizens.

The Court of Appeals held that the Board has the exclusive authority and jurisdiction to
try and hear cases against an alleged alien, and in the process, determine their
citizenship.

Page 151 of 265

The appellate court agreed with the trial court that the principle of jus soli was never
extended to the Philippines; hence, could not be made a ground to one’s claim of
Philippine citizenship. Like the trial court, the appellate tribunal found that Carlos failed
to elect Philippine citizenship within the reasonable period of three years upon reaching
the age of majority. Furthermore, it held that the belated submission to the local civil
registry of the affidavit of election and oath of allegiance in September 1956 was
defective because the affidavit of election was executed after the oath of allegiance, and
the delay of several years before their filing with the proper office was not satisfactorily
explained.

The course of action taken by the trial court was also approved by the appellate tribunal.
The Court of Appeals stated that the trial court necessarily had to rule on the substantial
and legal bases warranting the deportation proceeding in order to determine whether
the Board acted without or in excess of jurisdiction, or with grave abuse of discretion.
Moreover, the appellate court found that due process was properly observed in the
proceedings before the Board, contrary to the claim of Jimmy.

Unfazed with the said ruling, they moved for reconsideration. Their motion having been
denied,33 Carlos and Jimmy each filed a petition for review on certiorari before this
Court, respectively docketed as G.R. Nos. 167569 and 167570.

Meanwhile, in view of the dismissal of CA-G.R. SP. No. 85143, Bureau of Immigration
Commissioner Alipio F. Fernandez, Jr. issued Warrant of Deportation No. AFF-04-00334
dated November 16, 2004 to carry out the April 17, 2002 Decision in BSI-D.C. No. ADD-
01-117. This resulted in the apprehension and detention of Jimmy at the Bureau of
Immigration Bicutan Detention Center, pending his deportation to China. 35

On account of his detention, Jimmy once again filed a petition for habeas corpus 36
before the RTC of Pasig City, Branch 167, docketed as SP. Proc. No. 11507 assailing
his apprehension and detention despite the pendency of his appeal and his release on
recognizance.

In an Order37 dated December 6, 2004, the trial court dismissed the said petition ruling
that the remedy of habeas corpus cannot be availed of to obtain an order of release
once a deportation order has already been issued by the Bureau. Jimmy moved for
reconsideration of the Order, but this was also denied by the trial court in an Order 38
dated December 28, 2004.

Jimmy assailed the Orders of the trial court in a petition for certiorari and prohibition
before the appellate court, docketed as CA-G.R. No. 88277. The Court of Appeals
granted the petition and enjoined the deportation of Jimmy until the issue of his
citizenship is settled with finality by the court. The Court of Appeals held as follows:

xxxx

Page 152 of 265

…the issuance of a warrant to arrest and deport the petitioner without any proof
whatsoever of his violation of the bail conditions [that he was previously granted] is
arbitrary, inequitable and unjust, for the policies governing the grant of his bail should
likewise apply in the cancellation of the said bail. Although a deportation proceeding
does not partake of the nature of a criminal action, yet considering that it is such a harsh
and extraordinary administrative proceeding affecting the freedom and liberty of a
person who all his life has always lived in the Philippines, where he has established his
family and business interests, one who appears to be not completely devoid of any
claim to Filipino citizenship, being the son of a Filipina, whose father is alleged to also
have elected to be a Filipino, the constitutional right of such person to due process
cannot be peremptorily dismissed or ignored altogether, and indeed should not be
denied. If it later turns out that the petitioner is a Filipino after all, then the overly eager
Immigration authorities would have expelled and relegated to statelessness one who
might in fact be a Filipino by blood.

xxxx

WHEREFORE, in view of the foregoing, the petition with reference to the Warrant of
Deportation issued by the BID is hereby GRANTED. The Bureau of Immigration and
Deportation, through Commissioner Alipio F. Fernandez, Jr., Atty. Faizal Hussin and
Ansari Maca Ayan, and any of their deputized agents, are ENJOINED from deporting
petitioner Jimmy T. Go, a.k.a. Jaime T. Gaisano, until the issue of petitioner’s
citizenship is finally settled by the courts of justice.

SO ORDERED.39

Their motion for reconsideration40 having been denied on March 13, 2006, Hon. Alipio
Fernandez, in his capacity as the Commissioner of the Bureau of Immigration, and Atty.
Faisal Hussin and Ansari M. Macaayan, in their capacity as Intelligence Officers of the
Bureau of Immigration, are before this Court as petitioners in G.R. No. 171946.

The parties have raised the following grounds for their respective petitions:

G.R. No. 167569

I.

THE PROCEEDINGS HAD BEFORE THE BUREAU OF IMMIGRATION AND

DEPORTATION (B.I.D.) ARE NULL AND VOID FOR ITS FAILURE TO IMPLEAD AN
INDISPENSABLE PARTY IN THE PERSON OF PETITIONER CARLOS GO, SR.

II.

… GIVEN THE SUBSTANTIAL EVIDENCE TO PROVE HEREIN PETITIONER

CARLOS GO SR.’S FILIPINO CITIZENSHIP, A FULL BLOWN TRIAL UNDER THE
MORE RIGID RULES OF EVIDENCE PRESCRIBED IN COURT PROCEEDINGS

Page 153 of 265

SHOULD HAVE BEEN CONDUCTED TO DETERMINE HIS FILIPINO CITIZENSHIP
AND NOT THROUGH MERE "SUMMARY PROCEEDINGS" SUCH AS THE ONE HAD
BEFORE THE B.I.D. AS WELL AS IN THE COURT A QUO.

III.

A FILIPINO CITIZEN IS NOT REQUIRED TO ELECT PHILIPPINE CITIZENSHIP.

IV.

ASSUMING CARLOS GO, SR. STILL NEEDS TO ELECT PHILIPPINE CITIZENSHIP,

HE HAD COMPLIED WITH ALL THE REQUIREMENTS OF COM. ACT NO. 625.

V.

PETITIONER CARLOS GO, SR. ENJOYS THE "PRESUMPTION OF CITIZENSHIP."

VI.

RESPONDENT’S "CAUSE OF ACTION" HAD LONG PRESCRIBED.41

G.R. No. 167570

I.

THE PROCEEDINGS HAD BEFORE THE BUREAU OF IMMIGRATION AND

DEPORTATION (B.I.D.) ARE NULL AND VOID FOR ITS FAILURE TO IMPLEAD AN
INDISPENSABLE PARTY IN THE PERSON OF PETITIONER’S FATHER, CARLOS
GO, SR.

II.

THE DEPORTATION PROCEEDINGS BEFORE THE B.I.D. ARE NULL AND VOID
FOR ITS FAILURE TO OBSERVE DUE PROCESS.

III.

THE B.I.D.’S CAUSE OF ACTION AGAINST HEREIN PETITIONER JIMMY T. GO HAD

ALREADY PRESCRIBED.

IV.

… GIVEN THE SUBSTANTIAL EVIDENCE TO PROVE HEREIN PETITIONER’S

FILIPINO CITIZENSHIP, A FULL BLOWN TRIAL UNDER THE MORE RIGID RULES
OF EVIDENCE PRESCRIBED IN COURT PROCEEDINGS SHOULD HAVE BEEN

Page 154 of 265

CONDUCTED TO DETERMINE HIS FILIPINO CITIZENSHIP AND NOT THROUGH
MERE "SUMMARY PROCEEDINGS" SUCH AS THE ONE HAD BEFORE THE B.I.D.42

G.R. No. 171946

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN ENJOINING

RESPONDENT’S DEPORTATION.43

Succinctly stated, the issues for our resolution are: (a) whether the cause of action of
the Bureau against Carlos and Jimmy had prescribed; (b) whether the deportation
proceedings are null and void for failure to implead Carlos as an indispensable party
therein; (c) whether the evidence adduced by Carlos and Jimmy to prove their claim to
Philippine citizenship is substantial and sufficient to oust the Board of its jurisdiction
from continuing with the deportation proceedings in order to give way to a formal judicial
action to pass upon the issue of alienage; (d) whether due process was properly
observed in the proceedings before the Board; and (e) whether the petition for habeas
corpus should be dismissed.

The arguments raised by Carlos and Jimmy in their respective petitions are merely a
rehash of the arguments they adduced before the appellate tribunal and the trial court.
Once again, they raised the same argument of prescription. As to Carlos, it is his
position that being recognized by the government to have acquired Philippine
citizenship, evidenced by the Certificate of Election issued to him on September 11,
1956, his citizenship could no longer be questioned at this late date. As for Jimmy, he
contends that the Board’s cause of action to deport him has prescribed for the simple
reason that his arrest was not made within five (5) years from the time the cause of
action arose, which according to him commenced in 1989 when he was alleged to have
illegally acquired a Philippine passport.

In any event, they argue that the deportation proceeding should be nullified altogether
for failure to implead Carlos as an indispensable party therein. Jimmy posits that the
deportation case against him was made to depend upon the citizenship of his father,
Carlos, in that the Board found justification to order his deportation by declaring that his
father is a Chinese citizen even though the latter was never made a party in the
deportation proceedings. They argue that the Board could not simply strip Carlos of his
citizenship just so they could question the citizenship of Jimmy. To do so without
affording Carlos the opportunity to adduce evidence to prove his claim to Philippine
citizenship would be the height of injustice. For failing to accord him the requisite due
process, the whole proceeding should perforce be stuck down.

While they concede that the Board has jurisdiction to hear cases against an alleged
alien, they insist that judicial intervention may be resorted to when the claim to
citizenship is so substantial that there are reasonable grounds to believe that the claim
is correct, like in this case. Their claim to Philippine citizenship, they said, is clearly
shown by the fact that they were born, had been raised and had lived in this country all
their lives; they speak fluent Tagalog and Ilonggo; they engage in businesses reserved

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solely for Filipinos; they exercise their right to suffrage; they enjoy the rights and
privileges accorded only to citizens; and they have no record of any Alien Certificate of
Registration. More importantly, they contend that they were validly issued Philippine
passports. They further posit that the judicial intervention required is not merely a
judicial review of the proceedings below, but a full-blown, adversarial, trial-type
proceedings where the rules of evidence are strictly observed.

Considering that his citizenship affects that of his son, Carlos opted to present
controverting arguments to sustain his claim to Philippine citizenship, notwithstanding
the fact that according to him, he was never impleaded in the deportation proceedings.

Carlos takes exception to the ruling of the appellate court that the doctrine of jus soli
failed to accord him Philippine citizenship for the reason that the same was never
extended to the Philippines. He insists that if his Philippine citizenship is not recognized
by said doctrine, it is nonetheless recognized by the laws enforced prior to the 1935
Constitution, particularly the Philippine Bill of 190244 and the Philippine Autonomy Act of
August 29, 1916 (Jones Law of 1916).45

According to Carlos, the Philippine Bill of 1902 and the Jones Law of 1916 deemed all
inhabitants of the Philippine Islands as well as their children born after the passage of
said laws to be citizens of the Philippines. Because his father, Go Yin An, was a
resident of the Philippines at the time of the passage of the Jones Law of 1916, he
(Carlos) undoubtedly acquired his father’s citizenship. Article IV, first paragraph, of the
1935 Constitution therefore applies to him. Said constitutional provision reads:

ARTICLE IV. Citizenship

SECTION 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution.

xxxx

Even assuming that his father remained as a Chinese, Carlos also claims that he
followed the citizenship of his Filipina mother, being an illegitimate son, and that he
even validly elected Philippine citizenship when he complied with all the requirements of
Com. Act No. 625. He submits that what is being disputed is not whether he complied
with Com. Act No. 625, but rather, the timeliness of his compliance. He stresses that the
3-year compliance period following the interpretation given by Cuenco v. Secretary of
Justice46 to Article IV, Section 1(4) of the 1935 Constitution and Com. Act No. 625 when
election must be made, is not an inflexible rule. He reasoned that the same decision
held that such period may be extended under certain circumstances, as when the
person concerned has always considered himself a Filipino, like in his case. 47

We deny the appeal of Carlos and Jimmy for lack of merit.

Page 156 of 265

Carlos and Jimmy’s claim that the cause of action of the Bureau has prescribed is
untenable. Cases involving issues on citizenship are sui generis. Once the citizenship of
an individual is put into question, it necessarily has to be threshed out and decided
upon. In the case of Frivaldo v. Commission on Elections, 48 we said that decisions
declaring the acquisition or denial of citizenship cannot govern a person’s future status
with finality. This is because a person may subsequently reacquire, or for that matter,
lose his citizenship under any of the modes recognized by law for the purpose. 49
Indeed, if the issue of one’s citizenship, after it has been passed upon by the courts,
leaves it still open to future adjudication, then there is more reason why the government
should not be precluded from questioning one’s claim to Philippine citizenship,
especially so when the same has never been threshed out by any tribunal.

Jimmy’s invocation of prescription also does not persuade us. Section 37 (b) of Com.
Act No. 613 states:

Section 37. …

xxxx

(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 of this section at any
time after entry, but shall not be effected under any other clause unless the arrest in the
deportation proceedings is made within five years after the cause of deportation
arises….

xxxx

As shown in the Charge Sheet, Jimmy was charged for violation of Section 37(a)(9), 50 in
relation to Section 45(e)51 of Com. Act No. 613. From the foregoing provision, his
deportation may be effected only if his arrest is made within 5 years from the time the
cause for deportation arose. The court a quo is correct when it ruled that the 5-year
period should be counted only from July 18, 2000, the time when Luis filed his complaint
for deportation. It is the legal possibility of bringing the action which determines the
starting point for the computation of the period of prescription. 52 Additionally, Section 2
of Act No. 3326,53 as amended, entitled "An Act to Establish Periods of Prescription for
Violations Penalized by Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin to Run," provides:

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of
the law, and if the same be not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and punishment.

xxxx

The counting could not logically start in 1989 when his passport was issued because
the government was unaware that he was not a Filipino citizen. Had the government
been aware at such time that he was not a Filipino citizen or there were certain

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anomalies attending his application for such passport, it would have denied his
application.

As to the issue of whether Carlos is an indispensable party, we reiterate that an

indispensable party is a party in interest without whom no final determination can be
had of an action, and who shall be joined either as plaintiff or defendant. 54 To be
indispensable, a person must first be a real party in interest, that is, one who stands to
be benefited or injured by the judgment of the suit, or the party entitled to the avails of
the suit.55 Carlos clearly is not an indispensable party as he does not stand to be
benefited or injured by the judgment of the suit. What is sought is the deportation of
Jimmy on the ground that he is an alien. Hence, the principal issue that will be decided
on is the propriety of his deportation. To recall, Jimmy claims that he is a Filipino under
Section 1(3),56 Article IV of the 1935 Constitution because Carlos, his father, is allegedly
a citizen.57 Since his citizenship hinges on that of his father’s, it becomes necessary to
pass upon the citizenship of the latter. However, whatever will be the findings as to
Carlos’ citizenship will in no way prejudice him.

Citizenship proceedings, as aforestated, are a class of its own, in that, unlike other
cases, res judicata does not obtain as a matter of course. In a long line of decisions, this
Court said that every time the citizenship of a person is material or indispensable in a
judicial or administrative case, whatever the corresponding court or administrative
authority decides therein as to such citizenship is generally not considered as res
judicata; hence, it has to be threshed out again and again as the occasion may
demand.58 Res judicata may be applied in cases of citizenship only if the following
concur:

1. a person’s citizenship must be raised as a material issue in a controversy

where said person is a party;

2. the Solicitor General or his authorized representative took active part in the
resolution thereof; and

3. the finding or citizenship is affirmed by this Court.59

In the event that the citizenship of Carlos will be questioned, or his deportation sought,
the same has to be ascertained once again as the decision which will be rendered
hereinafter shall have no preclusive effect upon his citizenship. As neither injury nor
benefit will redound upon Carlos, he cannot be said to be an indispensable party in this
case.

There can be no question that the Board has the authority to hear and determine the
deportation case against a deportee and in the process determine also the question of
citizenship raised by him.60 However, this Court, following American jurisprudence, laid
down the exception to the primary jurisdiction enjoyed by the deportation board in the
case of Chua Hiong v. Deportation Board61 wherein we stressed that judicial
determination is permitted in cases when the courts themselves believe that there is

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substantial evidence supporting the claim of citizenship, so substantial that there are
reasonable grounds for the belief that the claim is correct.62 Moreover, when the
evidence submitted by a deportee is conclusive of his citizenship, the right to immediate
review should also be recognized and the courts shall promptly enjoin the deportation
proceedings.63

While we are mindful that resort to the courts may be had, the same should be allowed
only in the sound discretion of a competent court in proper proceedings.64 After all, the
Board’s jurisdiction is not divested by the mere claim of citizenship. 65 Moreover, a
deportee who claims to be a citizen and not therefore subject to deportation has the
right to have his citizenship reviewed by the courts, after the deportation proceedings. 66
The decision of the Board on the question is, of course, not final but subject to review by
the courts.671avvphi1

After a careful evaluation of the evidence, the appellate court was not convinced that
the same was sufficient to oust the Board of its jurisdiction to continue with the
deportation proceedings considering that what were presented particularly the birth
certificates of Jimmy, as well as those of his siblings, Juliet Go and Carlos Go, Jr.
indicate that they are Chinese citizens. Furthermore, like the Board, it found the election
of Carlos of Philippine citizenship, which was offered as additional proof of his claim,
irregular as it was not made on time.

We find no cogent reason to overturn the above findings of the appellate tribunal. The
question of whether substantial evidence had been presented to allow immediate
recourse to the regular courts is a question of fact which is beyond this Court’s power of
review for it is not a trier of facts.68 None of the exceptions69 in which this Court may
resolve factual issues has been shown to exist in this case. Even if we evaluate their
arguments and the evidence they presented once again, the same conclusion will still
be reached.

One of the arguments raised to sustain Carlos’ claim to Philippine citizenship is the
doctrine of jus soli, or the doctrine or principle of citizenship by place of birth. To recall,
both the trial court and the Court of Appeals ruled that the doctrine of jus soli was never
extended to the Philippines. We agree. The doctrine of jus soli was for a time the
prevailing rule in the acquisition of one’s citizenship.70 However, the Supreme Court
abandoned the principle of jus soli in the case of Tan Chong v. Secretary of Labor. 71
Since then, said doctrine only benefited those who were individually declared to be
citizens of the Philippines by a final court decision on the mistaken application of jus
soli.72

Neither will the Philippine Bill of 190273 nor the Jones Law of 191674 make Carlos a
citizen of the Philippines. His bare claim that his father, Go Yin An, was a resident of the
Philippines at the time of the passage of the said laws, without any supporting evidence
whatsoever will not suffice.

Page 159 of 265

It is a settled rule that only legitimate children follow the citizenship of the father and that
illegitimate children are under the parental authority of the mother and follow her
nationality.75 Moreover, we have also ruled that an illegitimate child of a Filipina need
not perform any act to confer upon him all the rights and privileges attached to citizens
of the Philippines; he automatically becomes a citizen himself.76 However, it is our
considered view that absent any evidence proving that Carlos is indeed an illegitimate
son of a Filipina, the aforestated established rule could not be applied to him.

As to the question of whether the election of Philippine citizenship conferred on Carlos

Filipino citizenship, we find that the appellate court correctly found that it did not.

Com. Act No. 625 which was enacted pursuant to Section 1(4), Article IV of the 1935
Constitution, prescribes the procedure that should be followed in order to make a valid
election of Philippine citizenship. Under Section 1 thereof, legitimate children born of
Filipino mothers may elect Philippine citizenship by expressing such intention "in a
statement to be signed and sworn to by the party concerned before any officer
authorized to administer oaths, and shall be filed with the nearest civil registry. The said
party shall accompany the aforesaid statement with the oath of allegiance to the
Constitution and the Government of the Philippines."77

However, the 1935 Constitution and Com. Act No. 625 did not prescribe a time period
within which the election of Philippine citizenship should be made. The 1935 Charter
only provides that the election should be made "upon reaching the age of majority." The
age of majority then commenced upon reaching 21 years. In the opinions of the then
Secretary of Justice on cases involving the validity of election of Philippine citizenship,
this dilemma was resolved by basing the time period on the decisions of this Court prior
to the effectivity of the 1935 Constitution. In these decisions, the proper period for
electing Philippine citizenship was, in turn, based on the pronouncements of the
Department of State of the United States Government to the effect that the election
should be made within a "reasonable time" after attaining the age of majority. The
phrase "reasonable time" has been interpreted to mean that the election should be
made within three (3) years from reaching the age of majority.78

It is true that we said that the 3-year period for electing Philippine citizenship may be
extended as when the person has always regarded himself as a Filipino. Be that as it
may, it is our considered view that not a single circumstance was sufficiently shown
meriting the extension of the 3-year period. The fact that Carlos exercised his right of
suffrage in 1952 and 1955 does not demonstrate such belief, considering that the acts
were done after he elected Philippine citizenship. On the other hand, the mere fact that
he was able to vote does not validate his irregular election of Philippine citizenship. At
most, his registration as a voter indicates his desire to exercise a right appertaining
exclusively to Filipino citizens but does not alter his real citizenship, which, in this
jurisdiction, is determined by blood (jus sanguinis). The exercise of the rights and
privileges granted only to Filipinos is not conclusive proof of citizenship, because a
person may misrepresent himself to be a Filipino and thus enjoy the rights and
privileges of citizens of this country.79

Page 160 of 265

It is incumbent upon one who claims Philippine citizenship to prove to the satisfaction of
the court that he is really a Filipino. No presumption can be indulged in favor of the
claimant of Philippine citizenship, and any doubt regarding citizenship must be resolved
in favor of the state.80

As Carlos and Jimmy neither showed conclusive proof of their citizenship nor presented
substantial proof of the same, we have no choice but to sustain the Board’s jurisdiction
over the deportation proceedings. This is not to say that we are ruling that they are not
Filipinos, for that is not what we are called upon to do. This Court necessarily has to
pass upon the issue of citizenship only to determine whether the proceedings may be
enjoined in order to give way to a judicial determination of the same. And we are of the
opinion that said proceedings should not be enjoined.

In our considered view, the allegation of Jimmy that due process was not observed in
the deportation proceedings must likewise fail.

Deportation proceedings are administrative in character, summary in nature, and need

not be conducted strictly in accordance with the rules of ordinary court proceedings. 81
The essence of due process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain one’s side or an opportunity to
seek reconsideration of the action or ruling complained of. 82 As long as the parties are
given the opportunity to be heard before judgment is rendered, the demands of due
process are sufficiently met.83 Although Jimmy was not furnished with a copy of the
subject Resolution and Charge Sheet as alleged by him, the trial court found that he
was given ample opportunity to explain his side and present controverting evidence,
thus:

x x x It must be stressed that after receiving the Order dated September 11, 2001
signed by BSI Chief Ronaldo P. Ledesma on October 4, 2001, petitioner Jimmy T. Go
admitted that when his representative went to the B.I.D. to inquire about the said Order,
the latter chanced upon the Resolution dated February 14, 2001 and March 8, 2001 as
well as the Charge Sheet dated July 3, 2001. Hence on October 5, 2001, he filed a
"Motion for Extension of Time to File Memorandum" and as such, was allowed by
Ronaldo P. Ledesma an extension of ten (10) days to submit his required
memorandum. x x x84

This circumstance satisfies the demands of administrative due process.

As regards the petition in G.R. No. 171946, petitioners contend that the appellate
tribunal erred in enjoining Jimmy’s deportation.85

Petitioners question the remedy availed of by Jimmy. They argue that the existence of
the remedy of an ordinary appeal proscribes the filing of the petition for certiorari as was
done in this case. They point out that the appeal period in habeas corpus cases is only
48 hours, compared to a special civil action under Rule 65 of the Rules of Court which is
60 days. This clearly shows that an ordinary appeal is the more plain, speedy and

Page 161 of 265

adequate remedy; hence, it must be the one availed of. 86 Since the decision of the trial
court was not properly appealed, the same may be said to have attained finality, and
may no longer be disturbed.87

They maintain that the dismissal of the petition for habeas corpus by the trial court was
proper. A petition for habeas corpus has for its purpose only the determination of
whether or not there is a lawful ground for Jimmy’s apprehension and continued
detention. They urge that the decision of the Board dated April 17, 2002 that ordered
Jimmy’s deportation has already attained finality by reason of the belated appeal taken
by Jimmy from the said decision on April 2, 2004 before the Office of the President, or
after almost two years from the time the decision was rendered. Said decision of the
Board, they insist, is the lawful ground that sanctions Jimmy’s apprehension and
detention.88

Petitioners in G.R. No. 171946 also argue that Jimmy cannot rely on the bail on
recognizance he was previously granted to question his subsequent apprehension and
detention. Under the Philippine Immigration Act of 1940, the power to grant bail can only
be exercised while the alien is still under investigation, and not when the order of
deportation had already been issued by the Board. 89 Hence, the bail granted was
irregular as it has no legal basis. Furthermore, they said the petition for habeas corpus
necessarily has to be dismissed because the same is no longer proper once the
applicant thereof has been charged before the Board, which is the case with Jimmy.90
Nonetheless, they claim that the habeas corpus case is rendered moot and academic
as Jimmy is no longer being detained.91

On the other hand, Jimmy counters that the instant petition for certiorari and prohibition
is the most appropriate, speedy and adequate remedy in spite of the availability of
ordinary appeal considering that what is involved in this case is his cherished liberty.
Grave abuse of discretion on the part of the petitioners in ordering his arrest and
detention, he argues, all the more justifies the avails of the extraordinary writ. 92 Contrary
to the petitioners’ stand, Jimmy argues that the April 17, 2002 Decision of the Board has
not attained finality owing to the availability of various remedies, one of which is an
appeal, and in fact is actually void because it was rendered without due process. 93 He
also insists that the bail issued to him is valid and effective until the final determination
of his citizenship before the proper courts.94 Moreover, he maintains that the petition for
habeas corpus was proper since its object is to inquire into the legality of one’s
detention, and if found illegal, to order the release of the detainee. 95 As in his petition in
G.R. No. 167570, Jimmy also contends that the proceedings before the Board is void
for failure to implead therein his father, and that he should have been given a full blown
trial before a regular court where he can prove his citizenship.96

Considering the arguments and contentions of the parties, we find the petition in G.R.
No. 171946 meritorious.a1f

We have held in a litany of cases that the extraordinary remedies of certiorari,

prohibition and mandamus are available only when there is no appeal or any plain,

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speedy and adequate remedy in the ordinary course of law. The writ of certiorari does
not lie where an appeal may be taken or where another adequate remedy is available
for the correction of the error.97

The petitioners correctly argue that appeal should have been the remedy availed of as it
is more plain, speedy and adequate. The 48-hour appeal period demonstrates the
adequacy of such remedy in that no unnecessary time will be wasted before the
decision will be re-evaluated.

A petition for the issuance of a writ of habeas corpus is a special proceeding

governed by Rule 102 of the Revised Rules of Court. The objective of the writ is to
determine whether the confinement or detention is valid or lawful. If it is, the writ
cannot be issued. What is to be inquired into is the legality of a person’s detention as
of, at the earliest, the filing of the application for the writ of habeas corpus, for even if
the detention is at its inception illegal, it may, by reason of some supervening events,
such as the instances mentioned in Section 498 of Rule 102, be no longer illegal at the
time of the filing of the application.99

Once a person detained is duly charged in court, he may no longer

question his detention through a petition for issuance of a writ of habeas
corpus. His remedy would be to quash the information and/or the warrant of arrest duly
issued. The writ of habeas corpus should not be allowed after the party sought to be
released had been charged before any court. The term "court" in this context includes
quasi-judicial bodies of governmental agencies authorized to order the person’s
confinement, like the Deportation Board of the Bureau of Immigration.100 Likewise, the
cancellation of his bail cannot be assailed via a petition for habeas corpus. When an
alien is detained by the Bureau of Immigration for deportation pursuant to an order of
deportation by the Deportation Board, the Regional Trial Courts have no power to
release such alien on bail even in habeas corpus proceedings because there is no law
authorizing it.101

Given that Jimmy has been duly charged before the Board, and in fact ordered
arrested pending his deportation, coupled by this Court’s pronouncement that
the Board was not ousted of its jurisdiction to continue with the deportation
proceedings, the petition for habeas corpus is rendered moot and academic. This
being so, we find it unnecessary to touch on the other arguments advanced by
respondents regarding the same subject.

WHEREFORE, the petitions in G.R. Nos. 167569 and 167570 are DENIED. The
Decision dated October 25, 2004 and Resolution dated February 16, 2005 of the Court
of Appeals in CA-G.R. SP No. 85143 are AFFIRMED. The petition in G.R. No. 171946
is hereby GRANTED. The Decision dated December 8, 2005 and Resolution dated
March 13, 2006 of the Court of Appeals in CA-G.R. SP No. 88277 are REVERSED and
SET ASIDE. The December 6, 2004 and December 28, 2004 Orders of the Regional
Trial Court of Pasig City, Branch 167 are hereby REINSTATED.

Page 163 of 265

No pronouncement as to costs.

SO ORDERED.

22.Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009

.R. No. 166470 August 7, 2009

CECILIO C. HERNANDEZ, MA. VICTORIA C. HERNANDEZ-1 and NATIVIDAD

CRUZ-HERNANDEZ, Petitioners,
vs.
JOVITA SAN JUAN-SANTOS, Respondent.

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

G.R. No. 169217

CECILIO C. HERNANDEZ, MA. VICTORIA C. HERNANDEZ-SAGUN and TERESA C.

HERNANDEZ-VILLA ABRILLE, Petitioners,
vs.
JOVITA SAN JUAN-SANTOS,2 Respondent.

DECISION

CORONA, J.:

Maria Lourdes San Juan Hernandez (or Lulu) was born on February 14, 1947 to the
spouses Felix Hernandez and Maria San Juan Hernandez. Unfortunately, the latter died
due to complications during childbirth. After Maria's death, Felix left Lulu in the care of
her maternal uncle, Sotero C. San Juan.

On December 16, 1951, Felix married Natividad Cruz. The union produced three
children, petitioners Cecilio C. Hernandez, Ma. Victoria C. Hernandez-Sagun and
Teresa C. Hernandez-Villa Abrille.

Meanwhile, as the only child of Maria and the sole testate heir of Sotero, Lulu inherited
valuable real properties from the San Juan family (conservatively estimated at P50
million in 1997).

Sometime in 1957, Lulu went to live with her father and his new family. She was then 10
years old and studying at La Consolacion College. However, due to her "violent
personality," Lulu stopped schooling when she reached Grade 5.

Page 164 of 265

In 1968, upon reaching the age of majority, Lulu was given full control of her estate. 3
Nevertheless, because Lulu did not even finish her elementary education, Felix
continued to exercise actual administration of Lulu’s properties. Upon Felix's death in
1993, petitioners took over the task of administering Lulu's properties.

During the period of their informal administration (from 1968 until 1993), Felix and
petitioners undertook various "projects" involving Lulu’s real properties. In 1974, Felix
allegedly purchased one of Lulu’s properties for an undisclosed amount to develop the
Marilou Subdivision.4 In 1995, Ma. Victoria informed Lulu that her 11-hectare
Montalban, Rizal property5 was under litigation. Thus, Lulu signed a special power of
attorney6 (SPA) believing that she was authorizing Ma. Victoria to appear in court on her
behalf when she was in fact unknowingly authorizing her half-sister to sell the said
property to the Manila Electric Company for P18,206,400.7 Thereafter, Cecilio asked
Lulu to authorize him to lease her 45-hectare property in Montalban, Rizal to Oxford
Concrete Aggregates for P58,500 per month so that she could have a car and driver at
her disposal.

In September 1998, Lulu sought the assistance of her maternal first cousin, respondent
Jovita San Juan-Santos, after learning that petitioners had been dissipating her estate.
She confided to Jovita that she was made to live in the basement of petitioners’
Montalban, Rizal home and was receiving a measly daily allowance of P400 for her food
and medication.

Respondent was appalled as Lulu was severely overweight, unkempt and smelled of
urine. She later found out that Lulu was occupying a cramped room lit by a single
fluorescent lamp without running water. Since she had not been given a proper toilet,
Lulu urinated and defecated in the garden. Due to Lulu's poor hygiene, respondent
brought her to several physicians for medical examination. Lulu was found to be
afflicted with tuberculosis, rheumatism and diabetes from which she was suffering
several complications.8

Thereafter, the San Juan family demanded an inventory and accounting of Lulu’s estate
from petitioners.9 However, the demand was ignored.

On October 2, 1998, respondent filed a petition for guardianship 10 in the Regional Trial
Court (RTC) of San Mateo, Rizal, Branch 76. She alleged that Lulu was incapable of
taking care of herself and managing her estate because she was of weak mind.

Subsequently, petitioners moved to intervene in the proceedings to oppose the same.

Natividad denied that Marilou Subdivision belonged to Lulu. Since she and her late
husband were the registered owners of the said property, it was allegedly part of their
conjugal partnership.

Cecilio, Teresa and Ma. Victoria, for their part, claimed that the issue of Lulu’s
competency had been settled in 1968 (upon her emancipation) when the court ordered

Page 165 of 265

her legal guardian and maternal uncle, Ciriaco San Juan, to deliver the properties for
her to manage.

They likewise asserted that Lulu was literate and, for that reason, aware of the
consequences of executing an SPA. Furthermore, whether or not Cecilio and Ma.
Victoria acted within the scope of their respective authorities could not be determined in
a guardianship proceeding, such matter being the proper subject of an ordinary civil
action.

Petitioners also admitted that the property developed into the Marilou Subdivision was
among those parcels of land Lulu inherited from the San Juan family. However,
because the "sale" between Felix and Lulu had taken place in 1974, questions
regarding its legality were already barred by the statute of limitations. Thus, its validity
could no longer be impugned, or so they claimed.

During the hearing, Lulu was presented and asked to testify on her genealogy and
experiences with the San Juan and Hernandez families. Lulu identified and described
her parents, stepmother, half-siblings and maternal relatives. She claimed inheriting
tracts of land from the San Juan family. However, these properties were dissipated by
the Hernandez family as they lived a "luxurious" lifestyle. When asked to explain this
allegation, Lulu said that her stepmother and half-siblings rode in cars while she was
made to ride a tricycle.

Medical specialists testified to explain the results of Lulu’s examinations which revealed
the alarming state of her health.11 Not only was Lulu severely afflicted with diabetes
mellitus and suffering from its complications,12 she also had an existing artheroselorotic
cardiovascular disease (which was aggravated by her obesity). Furthermore, they
unanimously opined that in view of Lulu’s intelligence level (which was below average)
and fragile mental state, she would not be able to care for herself and self-administer
her medications.

In a decision dated September 25, 2001,13 the RTC concluded that, due to her weak
physical and mental condition, there was a need to appoint a legal guardian over the
person and property of Lulu. Thus, it declared Lulu an incompetent and appointed
respondent as guardian over the person and property of Lulu on a P1 million bond.

Petitioners moved for reconsideration asserting that the P1 million bond was grossly
insufficient to secure Lulu’s P50-million estate against fraudulent loss or dissipation.14
The motion, however, was denied.15

On July 2, 2002, petitioners appealed the September 25, 2001 decision of the RTC to
the Court of Appeals (CA).16 The appeal was docketed as CA-G.R. CV No. 75760.

On December 29, 2004, the CA issued a decision affirming the September 25, 2001
decision of the RTC (in the petition for guardianship) in toto.17 It held that respondent
presented sufficient evidence to prove that Lulu, because of her illnesses and low

Page 166 of 265

educational attainment, needed assistance in taking care of herself and managing her
affairs considering the extent of her estate. With regard to the respondent’s appointment
as the legal guardian, the CA found that, since Lulu did not trust petitioners, none of
them was qualified to be her legal guardian.1avvphi1 Because guardianship was a trust
relationship, the RTC was bound to appoint someone Lulu clearly trusted.

Petitioners now assail the December 29, 2004 decision of the CA in this Court in a
petition for review on certiorari docketed as G.R. No. 166470.18

Meanwhile, Lulu moved into 8 R. Santos St., Marikina City (Marikina apartment) and
was provided with two housemaids tasked to care for her. Sometime in November 2003,
Lulu was abducted from her Marikina apartment. Jovita immediately sought the
assistance of the Police Anti-Crime Emergency Response (PACER) division of the
Philippine National Police.

The PACER subsequently discovered that petitioners were keeping Lulu somewhere in
Rodriguez, Rizal. Despite their initial hostility to the investigation, Ma. Victoria and
Cecilio subsequently contacted the PACER to inform them that Lulu voluntarily left with
Natividad because her guardian had allegedly been maltreating her.19

On December 15, 2003, respondent filed a petition for habeas corpus20 in the CA
alleging that petitioners abducted Lulu and were holding her captive in an undisclosed
location in Rodriguez, Rizal.

On April 26, 2005, the CA granted the petition for habeas corpus, ruling that Jovita, as
her legal guardian, was entitled to her custody. 21

Petitioners moved for the reconsideration of the said decision but it was denied in a
resolution dated July 12, 2005.22 Aggrieved, they filed this petition for review on
certiorari docketed as G.R. No. 169217. This was consolidated with G.R. No. 166470.

The basic issue in petitions of this nature is whether the person is an incompetent who
requires the appointment of a judicial guardian over her person and property.

Petitioners claim that the opinions of Lulu's attending physicians 23 regarding her mental
state were inadmissible in evidence as they were not experts in psychiatry. Respondent
therefore failed to prove that Lulu's illnesses rendered her an incompetent. She should
have been presumed to be of sound mind and/or in full possession of her mental
capacity. For this reason, Lulu should be allowed to live with them since under Articles
194 to 196 of the Family Code,24 legitimate brothers and sisters, whether half-blood or
full-blood are required to support each other fully.

Respondent, on the other hand, reiterated her arguments before the courts a quo. She
disclosed that Lulu had been confined in Recovery.com, a psychosocial rehabilitation
center and convalescent home care facility in Quezon City, since 2004 due to violent
and destructive behavior. She also had delusions of being physically and sexually

Page 167 of 265

abused by "Boy Negro" and imaginary pets she called "Michael" and "Madonna." 25 The
November 21, 2005 medical report26 stated Lulu had unspecified mental retardation with
psychosis but claimed significant improvements in her behavior.

We find the petition to be without merit.

Under Section 50, Rule 103 of the Rules of Court, an ordinary witness may give his
opinion on the mental sanity of a person with whom he is sufficiently acquainted.27
Lulu's attending physicians spoke and interacted with her. Such occasions allowed them
to thoroughly observe her behavior and conclude that her intelligence level was below
average and her mental stage below normal. Their opinions were admissible in
evidence.

Furthermore, where the sanity of a person is at issue, expert opinion is not necessary. 28
The observations of the trial judge coupled with evidence 29 establishing the person's
state of mental sanity will suffice.30 Here, the trial judge was given ample opportunity to
observe Lulu personally when she testified before the RTC.

Under Section 2, Rule 92 of the Rules of Court,31 persons who, though of sound mind
but by reason of age, disease, weak mind or other similar causes are incapable of
taking care of themselves and their property without outside aid, are considered as
incompetents who may properly be placed under guardianship. The RTC and the CA
both found that Lulu was incapable of taking care of herself and her properties without
outside aid due to her ailments and weak mind. Thus, since determining whether or not
Lulu is in fact an incompetent would require a reexamination of the evidence presented
in the courts a quo, it undoubtedly involves questions of fact.

As a general rule, this Court only resolves questions of law in a petition for review. We
only take cognizance of questions of fact in exceptional circumstances, none of which is
present in this case.32 We thus adopt the factual findings of the RTC as affirmed by the
CA.1avvph!1

Similarly, we see no compelling reason to reverse the trial and appellate courts’ finding
as to the propriety of respondent's appointment as the judicial guardian of Lulu. 33 We
therefore affirm her appointment as such. Consequently, respondent is tasked to care
for and take full custody of Lulu, and manage her estate as well.34

Inasmuch as respondent’s appointment as the judicial guardian of Lulu was proper, the
issuance of a writ of habeas corpus in her favor was also in order.

A writ of habeas corpus extends to all cases of illegal confinement or detention or by

which the rightful custody of person is withheld from the one entitled thereto.35
Respondent, as the judicial guardian of Lulu, was duty-bound to care for and protect her
ward. For her to perform her obligation, respondent must have custody of Lulu. Thus,
she was entitled to a writ of habeas corpus after she was unduly deprived of the custody
of her ward.36

Page 168 of 265

WHEREFORE, the petitions are hereby DENIED.

Petitioners are furthermore ordered to render to respondent, Lulu’s legal guardian, an

accurate and faithful accounting of all the properties and funds they unlawfully
appropriated for themselves from the estate of Maria Lourdes San Juan Hernandez,
within thirty (30) days from receipt of this decision. If warranted, the proper complaints
should also be filed against them for any criminal liability in connection with the
dissipation of Maria Lourdes San Juan Hernandez’s estate and her unlawful abduction
from the custody of her legal guardian.

Treble costs against petitioners.

SO ORDERED.

A.M. No. 07-9-12-SC

RULE ON THE WRIT OF AMPARO

Nature of the writ of amparo

23.Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008

G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED

FORCES OF THE PHILIPPINES, petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.

DECISION

PUNO, C.J.:

While victims of enforced disappearances are separated from the rest of the
world behind secret walls, they are not separated from the constitutional
protection of their basic rights. The constitution is an overarching sky that covers all
in its protection. The case at bar involves the rights to life, liberty and security in the first
petition for a writ of Amparo filed before this Court.

This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation
to Section 191 of the Rule on the Writ of Amparo, seeking to reverse and set aside on
both questions of fact and law, the Decision promulgated by the Court of Appeals in
C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and Reynaldo Manalo,

Page 169 of 265

petitioners, versus The Secretary of National Defense, the Chief of Staff, Armed Forces
of the Philippines, respondents."

This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining
Order (TRO)2 filed before this Court by herein respondents (therein petitioners) on
August 23, 2007 to stop herein petitioners (therein respondents) and/or their officers
and agents from depriving them of their right to liberty and other basic rights. Therein
petitioners also sought ancillary remedies, Protective Custody Orders, Appointment of
Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs
under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of the
Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary
of the Department of National Defense and the Chief of Staff of the AFP, their agents,
representatives, or persons acting in their stead, including but not limited to the Citizens
Armed Forces Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined
them from causing the arrest of therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 14 of the 1987 Constitution.5

While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo
took effect on October 24, 2007. Forthwith, therein petitioners filed a Manifestation
and Omnibus Motion to Treat Existing Petition as 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. 18 7 of the Amparo Rule; and
(5) all other just and equitable reliefs.8

On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a
petition under the Amparo Rule and further resolved, viz:

WHEREFORE, let a WRIT OF AMPARO be issued to respondents

requiring them to file with the CA (Court of Appeals) a verified written
return within five (5) working days from service of the writ. We REMAND
the petition to the CA and designate the Division of Associate Justice
Lucas P. Bersamin to conduct the summary hearing on the petition on
November 8, 2007 at 2:00 p.m. and decide the petition in accordance with
the Rule on the Writ of Amparo.9

On December 26, 2007, the Court of Appeals rendered a decision in favor of

therein petitioners (herein respondents), the dispositive portion of which reads, viz:

ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is

GRANTED.

Page 170 of 265

 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

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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

Page 172 of 265

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

Page 173 of 265

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

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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 24 th Infantry Battalion. Raymond and
Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo were
threatened, and Reynaldo was beaten up. In the daytime, their chains were removed,
but were put back on at night. They were threatened that if they escaped, their families
would all be killed.37

On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that
they should be thankful they were still alive and should continue along their "renewed
life." Before the hearing of November 6 or 8, 2006, respondents were brought to their
parents to instruct them not to attend the hearing. However, their parents had already
left 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

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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

Page 176 of 265

 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

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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

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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

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 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.

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 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

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Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry Division.54

On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th
Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to
investigate the alleged abduction of the respondents by CAFGU auxiliaries under his
unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo
de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning;
and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of
the abduction of Raymond and Reynaldo Manalo by the alleged elements of the
CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if any.57
Jimenez testified that this particular investigation was initiated not by a complaint as
was the usual procedure, but because the Commanding General saw news about the
abduction of the Manalo brothers on the television, and he was concerned about what
was happening within his territorial jurisdiction.58

Jimenez summoned all six implicated persons for the purpose of having them execute
sworn statements and conducting an investigation on May 29, 2006. 59 The investigation
started at 8:00 in the morning and finished at 10:00 in the evening. 60 The investigating
officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six
persons on that day. There were no other sworn statements taken, not even of the
Manalo family, nor were there other witnesses summoned and investigated 61 as
according to Jimenez, the directive to him was only to investigate the six persons. 62

Jimenez was beside Lingad when the latter took the statements.63 The six persons were
not known to Jimenez as it was in fact his first time to meet them.64 During the entire
time that he was beside Lingad, a subordinate of his in the Office of the Provost
Marshall, Jimenez did not propound a single question to the six persons. 65

Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their statements as
the printing of their statements was interrupted by a power failure. Jimenez testified that
the two signed on May 30, 2006, but the jurats of their statements indicated that they
were signed on May 29, 2006.66 When the Sworn Statements were turned over to
Jimenez, he personally wrote his investigation report. He began writing it in the
afternoon of May 30, 2006 and finished it on June 1, 2006. 67 He then gave his report to
the Office of the Chief of Personnel.68

As petitioners largely rely on 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

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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

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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

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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.

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 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.

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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

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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

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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:

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 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 7 th
Infantry Division, Philippine Army, and their CAFGU auxiliaries.

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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

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 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

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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

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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 1 120 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

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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

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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)

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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 Committee 136 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:

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 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:

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 ... 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

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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.

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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:

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 Section 1. Motion for production or inspection order.

Upon motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books
of accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession,
custody or control...

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

under authority of Rule 27, issued a subpoena duces tecum for the production and
inspection of among others, the books and papers of Material Distributors (Phil.) Inc.
The company questioned the issuance of the subpoena on the ground that it violated
the search and seizure clause. The Court struck down the argument and held that the
subpoena pertained to a civil procedure that "cannot be identified or confused with
unreasonable searches prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to
provide results of the investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the alleged disappearance of the
persons in whose favor the Writ of Amparo has been sought for as soon as the
same has been furnished Higher headquarters."

With respect to the second and third reliefs, petitioners assert that the disclosure of
the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald
Caigas, as well as the submission of a list of medical personnel, is irrelevant, improper,
immaterial, and unnecessary in the resolution of the petition for a writ of Amparo. They
add that it will unnecessarily compromise and jeopardize the exercise of official
functions and duties of military officers and even unwittingly and unnecessarily expose
them to threat of personal injury or even death.

On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka
Rollie Castillo and Donald Caigas, whom respondents both directly implicated as
perpetrators behind their abduction and detention, is relevant in ensuring the safety of
respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also
help ensure that these military officers can be served with notices and court processes
in relation to any investigation and action for violation of the respondents' rights. The list
of medical personnel is also relevant in securing information to create the medical
history of respondents and make appropriate medical interventions, when applicable
and necessary.

In blatant violation of our hard-won guarantees to life, liberty and security, these rights
are snuffed out from victims of extralegal killings and enforced disappearances. The writ

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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.

Does not protect property or commercial rights

24.Canlas vs. Napico Homeowners Association I-XIII, Inc., G.R. No. 182795, June 5,
2008

.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

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 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

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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.

Not proper remedy to obtain custody of a minor child

25.Caram vs. Segui, G.R. No. 193652, August 5, 2014

G.R. No. 193652 August 5, 2014

Page 205 of 265

Infant JULIAN YUSA Y CARAM, represented by his mother, MA. CHRISTINA
YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. CABRERA, and
CELIA C. YANGCO, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, and Section 191 of the Rule on the Writ of Amparo2 seeking to
set aside the August 17, 20103 and September 6, 20104 Orders of the Regional Trial
Court (RTC), Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-67604. The RTC
had dismissed petitioner’s petition for the issuance ofa writ of amparo which petitioner
filed in order for her to regain parental authority and custody of Julian Yusay Caram
(Baby Julian), her biological child, from the respondent officers of the Department of
Social Welfare and Development (DSWD). The factual antecedents as gleaned from the
records follow:

Petitioner Ma. Christina Yusay Caram(Christina) had an amorous relationship with

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

On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez Memorial
MedicalCenter, Marikina City.6 Sun and Moon shouldered all the hospital and medical
expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of
a Deed of Voluntary Commitment7 to the DSWD.

On November 26, 2009, Marcelino suffered a heart attack and died 8 without knowing
about the birth of his son. Thereafter, during the wake, Christina disclosed to
Marcelino’s family that she and the deceased had a son that she gave up for adoption
due to financial distress and initial embarrassment. Marcelino’s family was taken aback
by the revelation and sympathized with Christina. After the emotional revelation, they
vowed to help her recover and raise the baby.9 On November 27, 2009, the DSWD,
through Secretary Esperanza I. Cabral issued a certificate10 declaring Baby Julian as
"Legally Available for Adoption." A local matching conference was held on January 27,
2010 and on February 5, 2010, Baby Julian was "matched" with the spouses Vergel and
Filomina Medina (Medina Spouses) of the Kaisahang Bahay Foundation. Supervised
trial custody then commenced.11

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On May 5, 2010, Christina who had changed her mind about the adoption, wrote a letter
to the DSWDasking for the suspension of Baby Julian’s adoption proceedings. She
alsosaid she wanted her family back together.12

On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a
Memorandum13 to DSWD Assistant Secretary Vilma B. Cabrera informing her that the
certificate declaring Baby Julian legally available for adoption had attained finality on
November 13, 2009, or three months after Christina signed the Deed of Voluntary
Commitment which terminated her parental authority and effectively made Baby Julian a
ward of the State. The said Memorandum was noted by respondent Atty. Sally D.
Escutin, Director IV of the Legal Service, DSWD.

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

On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to Noel Constantino
stating that it would not allow Baby Julian to undergo DNA testing. Assistant Secretary
Cabrera informed Noel Constantino that the procedures followed relative to the
certification on the availability of the child for adoption and the child’s subsequent
placement to prospective adoptive parents were proper, and that the DSWD was no
longer in the position to stop the adoption process. Assistant Secretary Cabrera further
stated that should Christina wish to reacquire her parental authority over Baby Julian or
halt the adoption process, she may bring the matter to the regular courts as the
reglementary period for her to regain her parental rights had already lapsed under
Section 7 of Republic Act (R.A.) No. 9523.16

On July 27, 2010, Christina filed a petition17 for the issuance of a writ of amparo
before the RTC of Quezon City seeking to obtain custody of Baby Julian from
Atty. Segui, Atty. Escutin, Assistant Secretary Cabrera and Acting Secretary Celia
C. Yangco, all of the DSWD.

In her petition, Christina accused respondents of "blackmailing" her into surrendering

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

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

On the basis of the said petition,the RTC, Branch 106 of Quezon City, through its
Presiding Judge, the Honorable Angelene Mary W. Quimpo-Sale, issued a Writ of
Amparo18 on July 28, 2010 commanding the four respondents to produce the body of
Baby Julian at a hearing scheduled on August 4, 2010. Respondents were alsorequired

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to file their verified written return to the writ pursuant to Section 9 19 of the Amparo Rule,
within five working days from the service of the writ.

The respondents complied with the writ and filed their Return 20 on August 2, 2010
praying that the petition be denied for being the improper remedy to avail of in a case
relating toa biological parent’s custodial rights over her child.

On August 4, 2010, respondents appeared before the RTC but respondents did not
bring the child, stating that threats of kidnapping were made on the child and his
caregivers. To give respondents another chance, the RTC reset the hearing to August
5, 2010.

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

To abbreviate the proceedings, in view of all the manifestations and counter-

manifestations made by the counsels, the court enjoined the parties to file their
respective position papers on the following issues:

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

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

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

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

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

On August 17, 2010, the RTC dismissed the petition for issuance of a writ of
amparo without prejudice to the filing of the appropriate action in court. The RTC
held that Christina availed of the wrong remedy to regain custody of her child
Baby Julian.22 The RTC further stated that Christina should have filed a civil case for
custody of her child as laid down in the Family Code and the Rule on Custody of Minors

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

On August 20, 2010, Christina filed a motion for reconsideration24 arguing that since the
RTC assumed jurisdiction of the petition for the issuance of a writ of amparo, the latter
is duty-bound to dispose the case on the merits.25 The RTC, however, deniedChristina’s
motion for reconsideration on September 6, 2010 maintaining that the latter availed of
the wrong remedy and that the Supreme Court intended the writ of amparo to address
the problem of extrajudicial killings and enforced disappearances.26

On September 28, 2010, Christina directly elevated the case before this Court, via
a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, in relation to Section 19 of the Rule on the Writ of Amparo. In
her petition, Christina prayed that the Court (1) set aside the August 17, 2010 and
September 6, 2010 Orders of the RTC, (2) declare R.A. No. 9523 unconstitutional for
being contrary to A.M. No. 02-6-02-SC,27 which was promulgated by the Supreme
Court, and for violating the doctrine of separation of powers, (3) declare the "enforced
separation" between her and Baby Julian as violative of her rights to life, liberty and
security, and (4) grant her the privilege of availing the benefits of a writ of amparo so
she could be reunited with her son.28

The only relevant issue presented before the Court worthy of attention is whether a
petition for a writ of amparo is the proper recourse for obtaining parental authority and
custody of a minor child. This Court will not belabor to discuss Christina’s
argumentsrelating to the supposedunconstitutionality or R.A. No. 9523 as Congress has
the plenary power to repeal, alter and modify existing laws 29 and A.M. No. 02-6-02-SC
functions only as a means to enforce the provisions of all adoption and adoption-related
statutes before the courts.

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

The Court rejects petitioner’s contentions and denies the petition.

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

Page 209 of 265

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

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

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

[T]he AmparoRule was intended to address the intractable problem of "extralegal

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

This pronouncement on the coverage of the writ was further cemented in the latter case
of Lozada, Jr. v. Macapagal-Arroyo32 where this Court explicitly declared that as it
stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced
disappearances, or to threats thereof. As to what constitutes "enforced disappearance,"
the Court in Navia v. Pardico33 enumerated the elementsconstituting "enforced
disappearances" as the term is statutorily defined in Section 3(g) of R.A. No. 9851 34 to
wit:

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

liberty;

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

(c) that it be followed by the State or political organization’s refusal to

acknowledge or give information on the fate or whereabouts of the person
subject of the amparopetition; and,

(d) that the intention for such refusal isto remove subject person from the
protection of the law for a prolonged period of time.1âwphi1

In this case, Christina alleged that the respondent DSWD officers caused her "enforced
separation" from Baby Julian and that their action amounted to an "enforced
disappearance" within the context of the Amparo rule. Contrary to her position, however,

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the respondent DSWD officers never concealed Baby Julian's whereabouts. In fact,
Christina obtained a copy of the DSWD's May 28, 2010 Memorandum 35 explicitly stating
that Baby Julian was in the custody of the Medina Spouses when she filed her petition
before the RTC. Besides, she even admitted in her petition for review on certiorari that
the respondent DSWD officers presented Baby Julian before the RTC during the
hearing held in the afternoon of August 5, 2010. 36 There is therefore, no "enforced
disappearance" as used in the context of the Amparo rule as the third and fourth
elements are missing.

Christina's directly accusing the respondents of forcibly separating her from her child
and placing the latter up for adoption, supposedly without complying with the necessary
legal requisites to qualify the child for adoption, clearly indicates that she is not
searching for a lost child but asserting her parental authority over the child and
contesting custody over him.37 Since it is extant from the pleadings filed that what is
involved is the issue of child custody and the exercise of parental rights over a
child, who, for all intents and purposes, has been legally considered a ward of the
State, the Amparo rule cannot be properly applied.

To reiterate, the privilege of the writ of amparo is a remedy available to victims of

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

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

No costs.

SO ORDERED.

Differences between Amparo and search warrant

26.De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013

G.R. No. 204528 February 19, 2013

SECRETARY LEILA M. DE LIMA, DIRECTOR NONNATUS R. ROJAS and DEPUTY

DIRECTOR REYNALDO 0. ESMERALDA, Petitioners,
vs.
MAGTANGGOL B. GATDULA, Respondent.

RESOLUTION

Page 211 of 265

LEONEN, J.:

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

From the records, it appears that on 27 February 2012, respondent Magtanggol B.

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

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

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

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

Judge Pampilo proceeded to conduct a hearing on the main case on 7 March 2012.10
Even without a Return nor an Answer, he ordered the parties to file their respective
memoranda within five (5) working days after that hearing. Since the period to file an
Answer had not yet lapsed by then, the judge also decided that the memorandum of De
Lima, et al. would be filed in lieu of their Answer.11

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

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

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

SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the
Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. x
x x (Emphasis supplied).

It is the Court’s view that the "Decision" dated 20 March 2012 granting the writ of
Amparo is not the judgment or final order contemplated under this rule. Hence, a
Petition for Review under Rule 45 may not yet be the proper remedy at this time.

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

The remedy of the Writ of Amparo is an equitable and extraordinary remedy to

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

Due to the delicate and urgent nature of these controversies, the procedure was
devised to afford swift but decisive relief.17 It is initiated through a petition18 to be filed
in a Regional Trial Court, Sandiganbayan, the Court of Appeals, or the Supreme
Court.19 The judge or justice then makes an "immediate" evaluation 20 of the facts as
alleged in the petition and the affidavits submitted "with the attendant circumstances
detailed".21 After evaluation, the judge has the option to issue the Writ of Amparo22 or
immediately dismiss the case. Dismissal is proper if the petition and the supporting
affidavits do not show that the petitioner's right to life, liberty or security is under threat
or the acts complained of are not unlawful. On the other hand, the issuance of the writ
itself sets in motion presumptive judicial protection for the petitioner. The court compels
the respondents to appear before a court of law to show whether the grounds for more
permanent protection and interim reliefs are necessary.

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

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

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

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

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

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

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

This "Decision" pertained to the issuance of the writ under Section 6 of the Rule on
the Writ of Amparo, not the judgment under Section 18. The "Decision" is thus an
interlocutory order, as suggested by the fact that temporary protection, production and
inspection orders were given together with the decision. The temporary protection,

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production and inspection orders are interim reliefs that may be granted by the court
upon filing of the petition but before final judgment is rendered.32

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

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

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

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

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

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

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

The 1991 Revised Rules of Summary Procedure is a special rule that the Court has
devised for the following circumstances:

SECTION 1. Scope. – This rule shall govern the summary procedure in the Metropolitan
Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the
Municipal Circuit Trial Courts in the following cases falling within their jurisdiction:

A. Civil Cases:

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

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

B. Criminal Cases:

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

(2) Violations of the rental law;

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 (3) Violations of municipal or city ordinances;

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

xxxx

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

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

Worse, is the trial court’s third irregularity: it required a memorandum in lieu of a

responsive pleading (Answer) of De Lima, et al.

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

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

The fourth irregularity was in the "Decision" dated 20 March 2012 itself. In the body of
its decision, the RTC stated:

"Accordingly this court GRANTS the privilege of the writ and the interim reliefs
prayed for by the petitioner." (Emphasis supplied).

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

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

Page 216 of 265

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

A judgment which simply grants "the privilege of the writ" cannot be executed.1âwphi1 It
is tantamount to a failure of the judge to intervene and grant judicial succor to the
petitioner. Petitions filed to avail of the privilege of the Writ of Amparo arise out of very
real and concrete circumstances. Judicial responses cannot be as tragically symbolic or
ritualistic as "granting the privilege of the Writ of Amparo."

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

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

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

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

WHEREFORE, in the interest of justice, as a prophylactic to the irregularities committed

by the trial court judge, and by virtue of its powers under Article VIII, Section 5 (5) of the
Constitution, the Court RESOLVES to:

(1) NULLIFY all orders that are subject of this Resolution issued by Judge
Silvino T. Pampilo, Jr. after respondent Gatdula filed the Petition for the
Issuance of a Writ of Amparo;

Page 217 of 265

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

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

SO ORDERED.

27.Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011

G.R. No. 191805 April 16, 2013

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS
DATA IN FAVOR OF NORIEL RODRIGUEZ, NORIEL RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME
VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT.
AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA,
an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC
under the name "HARRY," ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and
VINCENT CALLAGAN, Respondents.

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

G.R. No. 193160

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS
DATA IN FAVOR OF NORIEL 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.

RESOLUTION

SERENO, CJ.:

On 15 November 2011, the Court promulgated its Decision in the present case, the
dispositive portion of which reads:

Page 218 of 265

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 Vincent 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 lbrado, 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.

After a careful examination of the records, the Court was 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 petitioner Rodriguez on 6
September 2009, and detained and tortured him until 17 September 2009.

Pursuant to the Decision ordering the Office of the Ombudsman to take further action,
Ombudsman Conchita Carpio Morales sent this Court a letter dated 23 May 2012,
requesting an additional two-month period, or until 24 July 2012, within which to submit
a report. The Ombudsman stated that Noriel Rodriguez (Rodriguez) and his family
refused to cooperate with the investigation for security reasons.

On 6 January 2012, respondents filed their Motion for Reconsideration, 1 arguing that
the soldiers belonging to the 17th Infantry Battalion, 5th Infantry Division of the military
cannot be held accountable for authoring the abduction and torture of petitioner. Their
arguments revolve solely on the claim that respondents were never specifically
mentioned by name as having performed, permitted, condoned, authorized, or allowed
the commission of any act or incurrence omission which would violate or threaten with
violation the rights to life, liberty, and security of petitioner-respondent and his family.2

On 18 January 2013, the Ombudsman submitted the Investigation Report, as

compliance with the Court’s directive to take appropriate action with respect to possible
liabilities respondents may have incurred. The exhaustive report detailed the steps
taken by the Field Investigation Office (FIO) of the Office of the Ombudsman,

Page 219 of 265

concluding that no criminal, civil, or administrative liabilities may be imputed to the
respondents. It was reflected therein that the lawyers for the Rodriguezes had
manifested to the FIO that the latter are hesitant to appear before them for security
reasons, viz:

Karapatan (a non-governmental organization that provides legal assistance to victims of

human rights violations and their families) could not locate Noriel and Rodel. As of this
writing, the Rodriguezes refused to participate in the present fact-finding investigation
‘for security reasons.’ Atty. Yambot disclosed (through a Manifestation dated March 30,
2012 that despite efforts to convince Noriel to participate in the present proceedings, the
latter ‘remains unconvinced and unwilling to this date.’

Recent information, however, revealed that Noriel and his family are no longer
interested in participating in the present case.

Instead of appearing before this Office for a conference under oath, SPO1 Robert B.
Molina submitted an Affidavit dated June 13, 2012 stating that on September 15, 2009,
at around 11:00 o’clock in the morning, Wilma H. Rodriguez appeared before the
Gonzaga Police Station and requested to enter into the blotter that her son, Noriel, was
allegedly missing in Sitio Comunal, Gonzaga, Cagayan. Thereupon, he gathered
information relative to Wilma’s report "but the community residence failed to reveal
anything".3

The other accounts – specifically that of respondent Antonino C. Cruz, Special

Investigator II of the Commission on Human Rights (CHR), as well as the claims of
respondents Mina and De Vera that they had disclosed to the CHR that Noriel had
become an agent ("asset") of the 17th Infantry Battalion – have been thoroughly
evaluated and ruled upon in our Decision. The OMB further laments, "If only he (Noriel)
could be asked to verify the circumstances under which he executed these subsequent
affidavits, his inconsistent claims will finally be settled," and that "(I)f there is one person
who can attest on whether detention and torture were indeed committed by any of the
Subjects herein, it is Noriel Rodriguez himself, the supposed victim."4

The purported unwillingness of the petitioner to appear or participate at this stage of the
proceedings due to security reasons does not affect the rationale of the writ granted by
the CA, as affirmed by this Court. In any case, the issue of the existence of criminal,
civil, or administrative liability which may be imputed to the respondents is not the
province of amparo proceedings -- rather, the writ serves both preventive and curative
roles in addressing the problem of extrajudicial killings and enforced disappearances. 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. 5 In this case
then, the thrust of ensuring that investigations are conducted and the rights to life,
liberty, and security of the petitioner, remains.

We deny the motion for reconsideration.

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The writ of amparo partakes of a summary proceeding that requires only substantial
evidence to make the appropriate interim and permanent reliefs available to the
petitioner. As explained in the Decision, it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or even administrative responsibility requiring substantial
evidence. The totality of evidence as a standard for the grant of the writ was correctly
applied by this Court, as first laid down in Razon v. Tagitis:

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.6 (Emphasis supplied.)

No reversible error may be attributed to the grant of the privilege of the writ by the CA,
and the present motion for reconsideration raises no new issues that would convince us
otherwise.

Respondents’ claim that they were not competently identified as the soldiers who
abducted and detained the petitioner, or that there was no mention of their names in the
documentary evidence, is baseless. The CA rightly considered Rodriguez’s
Sinumpaang Salaysay7 as 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.8

Petitioner narrated that at dawn on 9 September 2009, he noticed a soldier with the
name tag "Matutina," who appeared to be an official because the other soldiers
addressed him as "sir."9 He saw Matutina again at 11:00 p.m. on 15 September 2009,
when his abductors took him to a military operation in the mountains. 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.10 These facts were further corroborated by Hermie Antonio Carlos
in his Sinumpaang Salaysay dated 16 September 2009, 11 wherein he recounted in
detail the circumstances surrounding the victim’s capture.

Respondents’ main contention in their Return of the Writ was correctly deemed illogical
and contradictory by the CA. They claim that Rodriguez had complained of physical
ailments due to activities in the CPP-NPA, yet nevertheless signified his desire to
become a double-agent for the military. The CA stated:

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

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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.12 (Emphasis
supplied.)

Respondents conveniently neglect to address the findings of both the CA and this Court
that aside from the abduction 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. The CA found that the
soldiers even went as far as taking videos of the photos of petitioner’s relatives hung on
the wall of the house, and the innermost portions of the house. 13 There is no reasonable
justification for this violation of the right to privacy and security of petitioner’s abode,
which strikes at the very heart and rationale of the Rule on the Writ of Amparo. More
importantly, respondents also neglect to address our ruling that the failure to conduct a
fair and effective investigation similarly amounted to a violation of, or threat to
Rodriguez’s rights to life, liberty, and security. 14

The writ’s curative role is an acknowledgment that the violation of the right to life, liberty,
and security may be caused not only by a public official’s act, but also by his omission.
Accountability 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.15 The duty to investigate must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective. 16

The CA found that respondents Gen. Ibrado, PDG Verzosa, LT. Gen. Bangit, Maj. Gen.
Ochoa, Col. De Vera, and Lt. Col. Mina conducted a perfunctory investigation which
relied solely on the accounts of the military. Thus, the CA correctly held that the
investigation was superficial, one-sided, and depended entirely on the report prepared
by 1st Lt. Johnny Calub. No efforts were undertaken to solicit petitioner’s version of the
incident, and no witnesses were questioned regarding it. 17 The CA also took into
account the palpable lack of effort from respondent Versoza, as the chief of the
Philippine National Police.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby

DENIED with FINALITY. Let a copy of this Resolution be furnished the Ombudsman for
whatever appropriate action she may still take under circumstances.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice

Page 222 of 265

 Jurisprudence:
28.Tapuz vs. Judge del Rosario, G.R. No. 182795, June 5, 2008

.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

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 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.

Page 224 of 265

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.

A.M.No. 08-1-16-SC
RULE ON THE WRIT OF HABEAS DATA

Not applicable in property disputes

29Castillo vs. Cruz, G.R. No. 182165, November 25, 2009

.R. No. 182165 November 25, 2009

P/SUPT. FELIXBERTO CASTILLO, POLICE OFFICERS ROMEO BAGTAS,

RUPERTO BORLONGAN, EDMUNDO DIONISIO, RONNIE MORALES, ARNOLD
TRIA, and GILBERTO PUNZALAN, ENGR. RICASOL P. MILLAN, ENGR.
REDENTOR S. DELA CRUZ, MR. ANASTACIO L. BORLONGAN, MR. ARTEMIO
ESGUERRA, "TISOY," and JOHN DOES, Petitioners,
vs.
DR. AMANDA T. CRUZ, NIXON T. CRUZ, and FERDINAND T. CRUZ, Respondents.

Page 225 of 265

DECISION

CARPIO MORALES, J.:

Petitioners1 , employees and members of the local police force of the City Government
of Malolos, challenge the March 28, 2008 Decision of the Regional Trial Court (RTC) of
Malolos, Branch 10 in a petition for issuance of writs of amparo and habeas data
instituted by respondents.

The factual antecedents.

Respondent Amanda Cruz (Amanda) who, along with her husband Francisco G. Cruz
(Spouses Cruz), leased a parcel of land situated at Barrio Guinhawa, Malolos (the
property), refused to vacate the property, despite demands by the lessor Provincial
Government of Bulacan (the Province) which intended to utilize it for local projects.

The Province thus filed a complaint for unlawful detainer against the Spouses
Cruz before the then Municipal Trial Court (MTC) of Bulacan, Bulacan.

By Decision of September 5, 1997, the MTC rendered judgment against the

Spouses Cruz, which judgment, following its affirmance by the RTC, became final
and executory.

The finality of the decision in the ejectment case notwithstanding, the spouses Cruz
refused to vacate the property. They thereupon filed cases against the Province 2 and
the judges who presided over the case.3 Those cases were dismissed except their
petition for annulment of judgment lodged before Branch 18 of the RTC of Malolos, and
a civil case for injunction 833-M-2004 lodged before Branch 10 of the same RTC
Malolos.

The Spouses Cruz sought in the case for injunction the issuance of a permanent writ of
injunction to prevent the execution of the final and executory judgment against them.

By Order of July 19, 2005, the RTC, finding merit in the Spouses Cruzes’ allegation
that subsequent events changed the situation of the parties to justify a
suspension of the execution of the final and executory judgment, issued a
permanent writ of injunction, the dispositive portion of which reads:

WHEREFORE, the foregoing petitioners’ Motion for Reconsideration of the Order dated
August 10, 2004 is hereby GRANTED. Order dated August 10, 2004 is hereby
RECONSIDERED and SET ASIDE. Further, the verified petition dated November 05,
2002 are hereby REINSTATED and MADE PERMANENT until the MTC-Bulacan,
Bulacan finally resolves the pending motions of petitioners with the same determines
the metes and bounds of 400 sq. meters leased premises subject matter of this case
with immediate dispatch. Accordingly, REMAND the determination of the issues raised
by the petitioners on the issued writ of demolition to the MTC of Bulacan, Bulacan.

Page 226 of 265

SO ORDERED.4 (Emphasis in the original; underscoring supplied)

Finding that the fallo of the RTC July 19, 2005 Order treats, as a suspensive condition
for the lifting of the permanent injunction, the determination of the boundaries of the
property, the Province returned the issue for the consideration of the MTC. In a
Geodetic Engineer’s Report submitted to the MTC on August 31, 2007, the metes and
bounds of the property were indicated.

The MTC, by Order of January 2, 2008, approved the Report and ruled that the
permanent injunction which the RTC issued is ineffective. On motion of the Province,
the MTC, by Order of January 21, 2008, thus issued a Second Alias Writ of Demolition.

On receiving notice of the January 2, 2008 MTC Order, the Spouses Cruz filed a motion
before Branch 10 of the RTC for the issuance of a temporary restraining order (TRO)
which it set for hearing on January 25, 2008 on which date, however, the demolition
had, earlier in the day, been implemented. Such notwithstanding, the RTC issued a
TRO.5 The Spouses Cruz, along with their sons-respondents Nixon and Ferdinand,
thereupon entered the property, placed several container vans and purportedly
represented themselves as owners of the property which was for lease.

On February 21, 2008, petitioners Police Superintendent Felixberto Castillo et al., who
were deployed by the City Mayor in compliance with a memorandum issued by
Governor Joselito R. Mendoza instructing him to "protect, secure and maintain the
possession of the property," entered the property.

Amanda and her co-respondents refused to turn over the property, however. Insisting
that the RTC July 19, 2005 Order of Permanent Injunction enjoined the Province
from repossessing it, they shoved petitioners, forcing the latter to arrest them and
cause their indictment for direct assault, trespassing and other forms of light threats.

Respondents later filed on March 3, 2008 a "Respectful Motion-Petition for Writ of

Amparo and Habeas Data," docketed as Special Civil Action No. 53-M-2008, which
was coincidentally raffled to Branch 10 of the RTC Malolos.

Respondents averred that despite the Permanent Injunction, petitioners unlawfully

entered the property with the use of heavy equipment, tore down the barbed wire fences
and tents,6 and arrested them when they resisted petitioners’ entry; and that as early as
in the evening of February 20, 2008, members of the Philippine National Police had
already camped in front of the property.

On the basis of respondents’ allegations in their petition and the supporting affidavits,
the RTC, by Order of March 4, 2008, issued writs of amparo and habeas data.7

The RTC, crediting respondents’ version in this wise:

Page 227 of 265

Petitioners have shown by preponderant evidence that the facts and circumstances of
the alleged offenses examined into on Writs of Amparo and Habeas Data that there
have been an on-going hearings on the verified Petition for Contempt, docketed as
Special Proceedings No. 306-M-2006, before this Court for alleged violation by the
respondents of the Preliminary Injunction Order dated July 16, 2005 [sic] in Sp. Civil
Action No. 833-M-2002, hearings were held on January 25, 2008, February 12 and 19,
2008, where the respondents prayed for an April 22, 2008 continuance, however, in the
pitch darkness of February 20, 2008, police officers, some personnel from the
Engineering department, and some civilians proceeded purposely to the Pinoy
Compound, converged therein and with continuing threats of bodily harm and danger
and stone-throwing of the roofs of the homes thereat from voices around its premises,
on a pretext of an ordinary police operation when enterviewed [sic] by the media then
present, but at 8:00 a.m. to late in the afternoon of February 21, 2008, zoomed in on the
petitioners, subjecting them to bodily harm, mental torture, degradation, and the
debasement of a human being, reminiscent of the martial law police brutality, sending
chill in any ordinary citizen,8

rendered judgment, by Decision of March 28, 2008, in favor of respondents, disposing

as follows:

"WHEREFORE, premises considered, the Commitment Orders and waivers in Crim.

Cases Nos. 08-77 for Direct assault; Crim. Case No. 08-77 for Other Forms of
Trespass; and Crim. Case No. 08-78 for Light Threats are hereby DECLARED illegal,
null and void, as petitioners were deprived of their substantial rights, induced by duress
or a well-founded fear of personal violence. Accordingly, the commitment orders and
waivers are hereby SET ASIDE. The temporary release of the petitioners is declared
ABSOLUTE.

Without any pronouncement as to costs.

SO ORDERED."9 (Emphasis in the original; underscoring supplied)

Hence, the present petition for review on certiorari, pursuant to Section 1910 of The Rule
on the Writ of Amparo (A.M. No. 07-9-12-SC),11 which is essentially reproduced in the
Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC).12

In the main, petitioners fault the RTC for

… giving due course and issuing writs of amparo and habeas data when from the
allegations of the petition, the same ought not to have been issued as (1) the petition in
[sic] insufficient in substance as the same involves property rights; and (2) criminal
cases had already been filed and pending with the Municipal Trial Court in Cities,
Branch 1, City of Malolos. (Underscoring supplied)

The petition is impressed with merit.

Page 228 of 265

The Court is, under the Constitution, empowered to promulgate rules for the protection
and enforcement of constitutional rights.13 In view of the heightening prevalence of
extrajudicial killings and enforced disappearances, the Rule on the Writ of Amparo was
issued and took effect on October 24, 2007 which coincided with the celebration of
United Nations Day and affirmed the Court’s commitment towards internationalization of
human rights. More than three months later or on February 2, 2008, the Rule on the
Writ of Habeas Data was promulgated.

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

Section 1. Petition. – The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (Emphasis and underscoring supplied)

Section 1 of the Rule on the Writ of Habeas Data provides:

Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an unlawful
act or omission of a public official or employee or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party. (Emphasis and
underscoring supplied)

From the above-quoted provisions, the coverage of the writs is limited to the
protection of rights to life, liberty and security. And the writs cover not only
actual but also threats of unlawful acts or omissions.

Secretary of National Defense v. Manalo14 teaches:

As the Amparo Rule was intended to address the intractable problem of "extralegal
killings" and "enforced disappearances," its coverage, in its present form, is confined to
these two instances or to threats thereof. "Extralegal killings" are "killings committed
without due process of law, i.e., without legal safeguards or judicial proceedings." On
the other hand, "enforced disappearances" are "attended by the following
characteristics: an arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect acquiescence of
the government; the refusal of the State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation of liberty which places
such persons outside the protection of law.15 (Underscoring supplied, citations omitted)

To thus be covered by the privilege of the writs, respondents must meet the threshold
requirement that their right to life, liberty and security is violated or threatened with an
unlawful act or omission. Evidently, the present controversy arose out of a property
dispute between the Provincial Government and respondents. Absent any considerable

Page 229 of 265

nexus between the acts complained of and its effect on respondents’ right to life, liberty
and security, the Court will not delve on the propriety of petitioners’ entry into the
property.

Apropos is the Court’s ruling in Tapuz v. Del Rosario:16

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

xxxx

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of
the ultimate facts determinable from the supporting affidavits that detail the
circumstances of how and to what extent a threat to or violation of the rights to life,
liberty and security of the aggrieved party was or is being committed. 17 (Emphasis and
italics in the original, citation omitted)

Tapuz also arose out of a property dispute, albeit between private individuals, with the
petitioners therein branding as "acts of terrorism" the therein respondents’ alleged entry
into the disputed land with armed men in tow. The Court therein held:

On the whole, what is clear from these statements – both sworn and unsworn – is the
overriding involvement of property issues as the petition traces its roots to questions of
physical possession of the property disputed by the private parties. If at all, issues
relating to the right to life or to liberty can hardly be discerned except to the extent that
the occurrence of past violence has been alleged. The right to security, on the other
hand, is alleged only to the extent of the treats and harassments implied from the
presence of "armed men bare to the waist" and the alleged pointing and firing of
weapons. Notably, none of the supporting affidavits compellingly show that the
threat to the rights to life, liberty and security of the petitioners is imminent or
continuing.18 (Emphasis in the original; underscoring supplied)

It bears emphasis that respondents’ petition did not show any actual violation, imminent
or continuing threat to their life, liberty and security. Bare allegations that petitioners "in
unison, conspiracy and in contempt of court, there and then willfully, forcibly and
feloniously with the use of force and intimidation entered and forcibly, physically
manhandled the petitioners (respondents) and arrested the herein petitioners

Page 230 of 265

(respondents)"19 will not suffice to prove entitlement to the remedy of the writ of amparo.
No undue confinement or detention was present. In fact, respondents were even able to
post bail for the offenses a day after their arrest.20

Although respondents’ release from confinement does not necessarily hinder

supplication for the writ of amparo, absent any evidence or even an allegation in the
petition that there is undue and continuing restraint on their liberty, and/or that there
exists threat or intimidation that destroys the efficacy of their right to be secure in their
persons, the issuance of the writ cannot be justified.

That respondents are merely seeking the protection of their property rights is
gathered from their Joint Affidavit, viz:

xxxx

11. Kami ay humarang at humiga sa harap ng mga heavy equipment na hawak hawak
ang nasabing kautusan ng RTC Branch 10 (PERMANENT INJUNCTION at RTC
ORDERS DATED February 12, 17 at 19 2008) upang ipaglaban ang dignidad ng
kautusan ng korte, ipaglaban ang prinsipyo ng "SELF-HELP" at batas ukol sa
"PROPERTY RIGHTS", Wala kaming nagawa ipagtanggol ang aming karapatan sa
lupa na 45 years naming "IN POSSESSION." (Underscoring supplied)

Oddly, respondents also seek the issuance of a writ of habeas data when it is not even
alleged that petitioners are gathering, collecting or storing data or information regarding
their person, family, home and correspondence.

As for respondents’ assertion of past incidents21 wherein the Province allegedly violated
the Permanent Injunction order, these incidents were already raised in the injunction
proceedings on account of which respondents filed a case for criminal contempt against
petitioners.22

Before the filing of the petition for writs of amparo and habeas data, or on February 22,
2008, petitioners even instituted a petition for habeas corpus which was considered
moot and academic by Branch 14 of the Malolos RTC and was accordingly denied by
Order of April 8, 2008.

More. Respondent Amanda and one of her sons, Francisco Jr., likewise filed a petition
for writs of amparo and habeas data before the Sandiganbayan, they alleging the
commission of continuing threats by petitioners after the issuance of the writs by the
RTC, which petition was dismissed for insufficiency and forum shopping.

It thus appears that respondents are not without recourse and have in fact taken full
advantage of the legal system with the filing of civil, criminal and administrative
charges.231avvphi1

Page 231 of 265

It need not be underlined that respondents’ petitions for writs of amparo and habeas
data are extraordinary remedies which cannot be used as tools to stall the execution of
a final and executory decision in a property dispute.

At all events, respondents’ filing of the petitions for writs of amparo and habeas data
should have been barred, for criminal proceedings against them had commenced after
they were arrested in flagrante delicto and proceeded against in accordance with
Section 6, Rule 11224 of the Rules of Court. Validity of the arrest or the proceedings
conducted thereafter is a defense that may be set up by respondents during trial and
not before a petition for writs of amparo and habeas data. The reliefs afforded by the
writs may, however, be made available to the aggrieved party by motion in the criminal
proceedings.25

WHEREFORE, the petition is GRANTED. The challenged March 4, 2008 Order of

Branch 10 of the Regional Trial Court of Malolos is DECLARED NULL AND VOID, and
its March 28, 2008 Decision is REVERSED and SET ASIDE. Special Civil Action No.
53-M-2008 is DISMISSED.

SO ORDERED.

30.Manila Electric Company vs. Lim, G.R. No. 184769, October 5 2010

G.R. No. 184769 October 5, 2010

MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A. SAPITULA,

Petitioners,
vs.
ROSARIO GOPEZ LIM, Respondent.

DECISION

CARPIO MORALES, J.:

The Court is once again confronted with an opportunity to define the evolving metes and
bounds of the writ of habeas data. May an employee invoke the remedies available
under such writ where an employer decides to transfer her workplace on the basis of
copies of an anonymous letter posted therein ─ imputing to her disloyalty to the
company and calling for her to leave, which imputation it investigated but fails to inform
her of the details thereof?

Rosario G. Lim (respondent), also known as Cherry Lim, is an administrative clerk at the
Manila Electric Company (MERALCO).

Page 232 of 265

On June 4, 2008, an anonymous letter was posted at the door of the Metering
Office of the Administration building of MERALCO Plaridel, Bulacan Sector, at
which respondent is assigned, denouncing respondent. The letter reads:

Cherry Lim:

MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON NAMAN

AY GUSTO MONG PALAMON ANG BUONG KUMPANYA SA MGA BUWAYA NG
GOBYERNO. KAPAL NG MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA
LOOB….1

Copies of the letter were also inserted in the lockers of MERALCO linesmen. Informed
about it, respondent reported the matter on June 5, 2008 to the Plaridel Station of the
Philippine National Police.2

By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto, Head of MERALCO’s

Human Resource Staffing, directed the transfer of respondent to MERALCO’s Alabang
Sector in Muntinlupa as "A/F OTMS Clerk," effective July 18, 2008 in light of the receipt
of "… reports that there were accusations and threats directed against [her] from
unknown individuals and which could possibly compromise [her] safety and security."

Respondent, by letter of July 10, 2008 addressed to petitioner Ruben A. Sapitula, Vice-
President and Head of MERALCO’s Human Resource Administration, appealed her
transfer and requested for a dialogue so she could voice her concerns and misgivings
on the matter, claiming that the "punitive" nature of the transfer amounted to a denial of
due process. Citing the grueling travel from her residence in Pampanga to Alabang and
back entails, and violation of the provisions on job security of their Collective Bargaining
Agreement (CBA), respondent expressed her thoughts on the alleged threats to her
security in this wise:

xxxx

I feel that it would have been better . . . if you could have intimated to me the nature of
the alleged accusations and threats so that at least I could have found out if these are
credible or even serious. But as you stated, these came from unknown individuals and
the way they were handled, it appears that the veracity of these accusations and threats
to be [sic] highly suspicious, doubtful or are just mere jokes if they existed at all.

Assuming for the sake of argument only, that the alleged threats exist as the
management apparently believe, then my transfer to an unfamiliar place and
environment which will make me a "sitting duck" so to speak, seems to betray the real
intent of management which is contrary to its expressed concern on my security and
safety . . . Thus, it made me think twice on the rationale for management’s initiated
transfer. Reflecting further, it appears to me that instead of the management supposedly
extending favor to me, the net result and effect of management action would be a
punitive one.4 (emphasis and underscoring supplied)

Page 233 of 265

Respondent thus requested for the deferment of the implementation of her transfer
pending resolution of the issues she raised.

No response to her request having been received, respondent filed a petition 5 for the
issuance of a writ of habeas data against petitioners before the Regional Trial Court
(RTC) of Bulacan, docketed as SP. Proc. No. 213-M-2008.

By respondent’s allegation, petitioners’ unlawful act and omission consisting of their

continued failure and refusal to provide her with details or information about the alleged
report which MERALCO purportedly received concerning threats to her safety and
security amount to a violation of her right to privacy in life, liberty and security,
correctible by habeas data. Respondent thus prayed for the issuance of a writ
commanding petitioners to file a written return containing the following:

a) a full disclosure of the data or information about respondent in relation

to the report purportedly received by petitioners on the alleged threat to
her safety and security; the nature of such data and the purpose for its
collection;

b) the measures taken by petitioners to ensure the confidentiality of such

data or information; and

c) the currency and accuracy of such data or information obtained.

Additionally, respondent prayed for the issuance of a Temporary Restraining Order

(TRO) enjoining petitioners from effecting her transfer to the MERALCO Alabang
Sector.

By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC directed petitioners to
file their verified written return. And by Order of September 5, 2008, the trial court
granted respondent’s application for a TRO.

Petitioners moved for the dismissal of the petition and recall of the TRO on the grounds
that, inter alia, resort to a petition for writ of habeas data was not in order; and the RTC
lacked jurisdiction over the case which properly belongs to the National Labor Relations
Commission (NLRC).7

By Decision8 of September 22, 2008, the trial court granted the prayers of
respondent including the issuance of a writ of preliminary injunction directing
petitioners to desist from implementing respondent’s transfer until such time that
petitioners comply with the disclosures required.

The trial court justified its ruling by declaring that, inter alia, recourse to a writ of habeas
data should extend not only to victims of extra-legal killings and political activists but
also to ordinary citizens, like respondent whose rights to life and security are

Page 234 of 265

jeopardized by petitioners’ refusal to provide her with information or data on the
reported threats to her person.

Hence, the present petition for review under Rule 45 of 1997 Rules of Civil Procedure
and the Rule on the Writ of Habeas Data9 contending that 1) the RTC lacked jurisdiction
over the case and cannot restrain MERALCO’s prerogative as employer to transfer the
place of work of its employees, and 2) the issuance of the writ is outside the parameters
expressly set forth in the Rule on the Writ of Habeas Data.101avvphi1

Maintaining that the RTC has no jurisdiction over what they contend is clearly a labor
dispute, petitioners argue that "although ingeniously crafted as a petition for habeas
data, respondent is essentially questioning the transfer of her place of work by her
employer"11 and the terms and conditions of her employment which arise from an
employer-employee relationship over which the NLRC and the Labor Arbiters under
Article 217 of the Labor Code have jurisdiction.

Petitioners thus maintain that the RTC had no authority to restrain the implementation of
the Memorandum transferring respondent’s place of work which is purely a
management prerogative, and that OCA-Circular No. 79-200312 expressly prohibits the
issuance of TROs or injunctive writs in labor-related cases.

Petitioners go on to point out that the Rule on the Writ of Habeas Data directs the
issuance of the writ only against public officials or employees, or private individuals or
entities engaged in the gathering, collecting or storing of data or information regarding
an aggrieved party’s person, family or home; and that MERALCO (or its officers) is
clearly not engaged in such activities.

The petition is impressed with merit.

Respondent’s plea that she be spared from complying with MERALCO’s Memorandum
directing her reassignment to the Alabang Sector, under the guise of a quest for
information or data allegedly in possession of petitioners, does not fall within the
province of a writ of habeas data.

Section 1 of the Rule on the Writ of Habeas Data provides:

Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee or of a private individual or
entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party.
(emphasis and underscoring supplied)

The habeas data rule, in general, is designed to protect by means of judicial

complaint the image, privacy, honor, information, and freedom of information of
an individual. It is meant to provide a forum to enforce one’s right to the truth and to

Page 235 of 265

informational privacy, thus safeguarding the constitutional guarantees of a person’s right
to life, liberty and security against abuse in this age of information technology.

It bears reiteration that like the writ of amparo, habeas data was conceived as a
response, given the lack of effective and available remedies, to address the
extraordinary rise in the number of killings and enforced disappearances. Its intent is to
address violations of or threats to the rights to life, liberty or security as a remedy
independently from those provided under prevailing Rules.13

Castillo v. Cruz14 underscores the emphasis laid down in Tapuz v. del Rosario 15 that
the writs of amparo and habeas data will NOT issue to protect purely property or
commercial concerns nor when the grounds invoked in support of the petitions
therefor are vague or doubtful.16 Employment constitutes a property right under
the context of the due process clause of the Constitution.17 It is evident that
respondent’s reservations on the real reasons for her transfer - a legitimate concern
respecting the terms and conditions of one’s employment - are what prompted her to
adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is
inarguably lodged by law with the NLRC and the Labor Arbiters.

In another vein, there is no showing from the facts presented that petitioners committed
any unjustifiable or unlawful violation of respondent’s right to privacy vis-a-vis the right
to life, liberty or security. To argue that petitioners’ refusal to disclose the contents of
reports allegedly received on the threats to respondent’s safety amounts to a violation of
her right to privacy is at best speculative. Respondent in fact trivializes these threats
and accusations from unknown individuals in her earlier-quoted portion of her July 10,
2008 letter as "highly suspicious, doubtful or are just mere jokes if they existed at all." 18
And she even suspects that her transfer to another place of work "betray[s] the real
intent of management]" and could be a "punitive move." Her posture unwittingly
concedes that the issue is labor-related.

WHEREFORE, the petition is GRANTED. The assailed September 22, 2008 Decision of
the Bulacan RTC, Branch 7 in SP. Proc. No. 213-M-2008 is hereby REVERSED and
SET ASIDE. SP. Proc. No. 213-M-2008 is, accordingly, DISMISSED.

No costs.

SO ORDERED.

Substantial evidence required

Not only direct but circumstantial evidence may be considered
31.Saez vs. Arroyo, G.R. No. 183533, September 25, 2012

G.R. No. 183533 September 25, 2012

Page 236 of 265

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT
OF HABEAS DATA IN FAVOR OF FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN.
AVELINO RAZON, 22ND MICO, CAPT. LAWRENCE BANAAG, SGT. CASTILLO,
CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO QUINT
ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA
YDO, A CERTAIN FIRST SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC.
SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK CLANZA and
JEFFREY GOMEZ, Respondents.

For action by the Court is the Motion for Reconsideration1 dated September 26, 2010
filed by petitioner Francis Saez of our Resolution 2 dated August 31, 2010 denying the
Petition for Review3 he filed on July 21, 2008.

The Office of the Solicitor General (OSG) filed its Comment 4 thereon stating that it does
not find cogent grounds to warrant setting aside our decision.

Antecedent Facts

On March 6, 2008, the petitioner filed with the Court a petition to be granted the
privilege of the writs of amparo and habeas data with prayers for temporary
protection order, inspection of place and production of documents.5 In the petition,
he expressed his fear of being abducted and killed; hence, he sought that he be
placed in a sanctuary appointed by the Court. He likewise prayed for the military to
cease from further conducting surveillance and monitoring of his activities and for his
name to be excluded from the order of battle and other government records connecting
him to the Communist Party of the Philippines (CPP).

Without necessarily giving due course to the petition, the Court issued the writ of
amparo commanding the respondents to make a verified return, and referred the
case to the Court of Appeals (CA) for hearing and decision.The case before the CA was
docketed as CA-G.R. SP No. 00024 WOA.

In the Return of the Writ,6 the respondents denied the assignment in the units of
Captains Lawrence Banaag and Rommel Gutierrez and Corporal Ariel Fontanilla. The
respondents also alleged that the names and descriptions of "Capt. Alcaydo," "a certain
First Sergeant," "Cpl. James," "Pfc. Sonny," and "Joel" were insufficient to properly
identify some of the persons sought to be included as among the respondents in the
petition.

On the other hand, respondents General Hermogenes Esperon, Jr. (Gen. Esperon),
Capt. Jacob Thaddeus Obligado, Pvt. Rizaldy A. Osio (Pvt. Osio), Pfc. Romanito C.
Quintana, Jr. and Pfc. Jerico Duquil submitted their affidavits.

Page 237 of 265

The CA conducted hearings with an intent to clarify what actually transpired and to
determine specific acts which threatened the petitioner’s right to life, liberty or security.

During the hearings, the petitioner narrated that starting April 16, 2007, he noticed that
he was always being followed by a certain "Joel," a former colleague at Bayan Muna.
"Joel" pretended peddling pandesal in the vicinity of the petitioner’s store. Three days
before the petitioner was apprehended, "Joel" approached and informed him of his
marital status and current job as a baker in Calapan, Mindoro Oriental. "Joel" inquired if
the petitioner was still involved with ANAKPAWIS. When asked by the CA justices
during the hearing if the petitioner had gone home to Calapan after having filed the
petition, he answered in the negative explaining that he was afraid of Pvt. Osio who was
always at the pier.

CA-G.R. SP No. 00024 WOA

On July 9, 2008, the CA rendered its Decision,7 denying on formal and substantial
grounds the reliefs prayed for in the petition and dropping former President
Gloria Macapagal Arroyo as a respondent. The CA ratiocinated:

There was no attempt at all to clarify how petitioner came to know about Zaldy Osio’s
presence at their pier if the former had not gone home since the petition was filed and
what Zaldy Osio was doing there to constitute violation or threat to violate petitioner’s
right to life, liberty or security. This Court cannot just grant the privilege of the writs
without substantial evidence to establish petitioner’s entitlement thereto. This Court
cannot grant the privilege of the writs applied for on mere speculation or conjecture.
This Court is convinced that the Supreme Court did not intend it to be so when the rules
on the writs of Amparo and Habeas Data were adopted. It is the impression of this Court
that the privilege of the writs herein prayed for should be considered as extraordinary
remedies available to address the specific situations enumerated in the rules and no
other.

xxxx

Not only did the petition and the supporting affidavit x x x fail to allege how the
supposed threat or violation of petitioner’s [right to] life, liberty and security is
committed. Neither is there any narration of any circumstances attendant to said
supposed violation or threat to violatepetitioner’s right to life, liberty or security to
warrant entitlement to the privilege of the writs prayed for.

xxxx

A reading of the petition will show that the allegations therein do not comply with the
aforestated requirements of Section 6 Rule on the Writ of Habeas Data of the pertinent
rule. The petition is bereft of any allegation stating with specific definiteness as to how
petitioner’s right to privacy was violated or threatened to be violated. He did not include
any allegation as to what recourses he availed of to obtain the alleged documents from

Page 238 of 265

respondents. Neither did petitioner allege what specific documents he prays for and
from whom or [sic] from what particular office of the government he prays to obtain
them. The petition prays "to order respondents to produce any documents submitted to
any of them in the matter of any report on the case of FRANCIS SAEZ, including all
military intelligence reports."

xxxx

Both the rules on the writs of Amparo and Habeas Data (Section 17, A.M. No. 07-9-12-
SC and Section 16, A.M. No. 08-1-16-SC) provide that the parties shall establish their
claims by substantial evidence. Not only was petitioner unable to establish his
entitlement to the privilege of the writs applied for, the exigency thereof was negated by
his own admission that nothing happened between him and Joel after July 21, 2007.
The filing of the petition appears to have been precipitated by his fear that something
might happen to him, not because of any apparent violation or visible threat to violate
his right to life, liberty or security. Petitioner was, in fact, unable to establish likewise
who among the respondents committed specific acts defined under the rules on both
writs to constitute violation or threat to violate petitioner’s rights to life, liberty or security
or his right to privacy thereof.

xxxx

x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al. (G.R. No. 171396,
May 3, 2006, 489 SCRA 160, 224) is aptly instructive:

"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. x x x."

xxxx

IV. The petition lacks proper verification in violation of Section 12, 2004 Rules on
Notarial Practice.8

On July 21, 2008, Petition for Review was filed assailing the foregoing CA decision with
the following issues submitted for resolution:

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR IN DISMISSING

THE PETITION AND DROPPING GLORIA MACAPAGAL ARROYO AS PARTY
RESPONDENT.

Page 239 of 265

WHETHER OR NOT THE NOTARIAL OFFICER’S OMISSION OF REQUIRING FROM
THE PETITIONER IDENTIFICATION CARDS RELATIVE TO THE LATTER’S
EXECUTION OF THE VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING JUSTIFIES THE DENIAL OF THE PETITION.

WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF DISCRETION WHEN

IT FAILED TO CONCLUDE FROM THE EVIDENCE OFFERED BY THE PETITIONER
THE FACT THAT BY BEING PLACED IN THE ORDER OF BATTLE LIST, THREATS
AND VIOLATIONS TO THE LATTER’S LIFE, LIBERTY AND SECURITY WERE
ACTUALLY COMMITTED BY THE RESPONDENTS.9

Court’s Resolution dated August 31, 2010

On August 31, 2010, the Court issued the Resolution 10 denying the petition for review
for the following reasons, viz:

A careful perusal of the subject petition shows that the CA correctly found that the
petition was bereft of any allegation as to what particular acts or omission of
respondents violated or threatened petitioner’s right to life, liberty and security. His claim
that he was incommunicado lacks credibility as he was given a cellular phone and
allowed to go back to Oriental Mindoro. The CA also correctly held that petitioner failed
to present substantial evidence that his right to life, liberty and security were violated, or
how his right to privacy was threatened by respondents. He did not specify the particular
documents to be secured, their location or what particular government office had
custody thereof, and who has possession or control of the same. He merely prayed that
the respondents be ordered "to produce any documents submitted to any of them in the
matter of any report on the case of FRANCIS SAEZ, including all military intelligence
reports."

Petitioner assails the CA in failing to appreciate that in his Affidavit and Fact Sheet, he
had specifically detailed the violation of his right to privacy as he was placed in the
Order of Battle and promised to have his record cleared if he would cooperate and
become a military asset. However, despite questions propounded by the CA Associate
Justices during the hearing, he still failed to enlighten the appellate court as to what
actually transpired to enable said court to determine whether his right to life, liberty or
security had actually been violated or threatened. Records bear out the unsubstantiated
claims of petitioner which justified the appellate court’s dismissal of the petition.

As to petitioner’s argument that the CA erred in deleting the President as party-

respondent, we find the same also to be without merit. The Court has already made it
clear in David v. Macapagal-Arroyo that the President, during his or her 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 the President can be dragged into court
litigations while serving as such. Furthermore, it is important that the President be freed

Page 240 of 265

from any form of harassment, hindrance or distraction to enable the President to fully
attend to the performance of official duties and functions.11 (Citation omitted)

Hence, the petitioner filed the instant motion for reconsideration.12

Petitioner’s Arguments

Contrary to the CA’s findings, it had been shown by substantial evidence and even by
the respondents’ own admissions that the petitioner’s life, liberty and security were
threatened. Military personnel, whom the petitioner had named and described, knew
where to get him and they can do so with ease. He also became a military asset, but
under duress, as the respondents had documents allegedly linking him to the CPP and
including him in the order of battle. The petitioner claims that the foregoing
circumstances were not denied by the respondents.

The petitioner likewise challenges the CA’s finding that he was not rendered
incommunicado as he was even provided with a cellular phone. The petitioner argues
that the phone was only given to him for the purpose of communicating with the
respondents matters relative to his infiltration activities of target legal organizations.

The petitioner cites Secretary of National Defense v. Manalo, 13 which pronounced that
"in the amparo context, it is more correct to say that the ‘right to security’ is actually the
‘freedom from threat’".14 According to the petitioner, his freedom from fear was
undoubtedly violated, hence, to him pertains a cause of action. Anent the quantum of
proof required in a petition for the issuance of the writ of amparo, mere substantial
evidence is sufficient. The petition "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".15

Sadly, in the petitioner’s case, the court not only demanded a greater quantum of proof
than what the rules require, but it also accorded special preference for the respondents’
evidence.

The petitioner also cites a speech delivered in Siliman University by former Chief
Justice Reynato Puno who expressed that "the remedy of habeas data can be used by
any citizen against any governmental agency or register to find out what information is
held about his or her person." The person can likewise "request the rectification or even
the destruction of erroneous data gathered and kept against him or her." In the
petitioner’s case, he specifically sought the production of the order of battle, which
allegedly included his name, and other records which supposedly contain erroneous
data relative to his involvement with the CPP.

OSG’s Comment

Page 241 of 265

In the respondents’ comment16 filed by the OSG, it is generally claimed that the
petitioner advances no cogent grounds to justify the reversal of the Court’s Resolution
dated August 31, 2010.

The Court’s Disquisition

While the issuance of the writs sought by the petitioner cannot be granted, the Court
nevertheless finds ample grounds to modify the Resolution dated August 31, 2010.

The petition conforms to the

requirements of the Rules on the
Writs of Amparo and Habeas Data

Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo) and Section 6 18 of
A.M. 08-1-16-SC (Rule on the Writ of Habeas Data) provide for what the said petitions
should contain.

In the present case, the Court notes that the petition for the issuance of the privilege of
the writs of amparo and habeas data is sufficient as to its contents. The petitioner made
specific allegations relative to his personal circumstances and those of the respondents.
The petitioner likewise indicated particular acts, which are allegedly violative of his
rights and the participation of some of the respondents in their commission. As to the
pre-requisite conduct and result of an investigation prior to the filing of the petition, it
was explained that the petitioner expected no relief from the military, which he
perceived as his oppressors, hence, his request for assistance from a human rights
organization, then a direct resort to the court. Anent the documents sought to be the
subject of the writ of habeas data prayed for, the Court finds the requirement of
specificity to have been satisfied. The documents subject of the petition include the
order of battle, those linking the petitioner to the CPP and those he signed involuntarily,
and military intelligence reports making references to him. Although the exact locations
and the custodians of the documents were not identified, this does not render the
petition insufficient. Section 6(d) of the Rule on the Writ of Habeas Data is clear that the
requirement of specificity arises only when the exact locations and identities of the
custodians are known. The Amparo Rule was not promulgated with the intent to make it
a token gesture of concern for constitutional rights.19 Thus, despite the lack of certain
contents, which the Rules on the Writs of Amparo and Habeas Data generally require,
for as long as their absence under exceptional circumstances can be reasonably
justified, a petition should not be susceptible to outright dismissal.

From the foregoing, the Court holds that the allegations stated in the petition for the
privilege of the writs of amparo and habeas data filed conform to the rules. However,
they are mere allegations, which the Court cannot accept "hook, line and sinker", so to
speak, and whether substantial evidence exist to warrant the granting of the petition is a
different matter altogether.

Page 242 of 265

No substantial evidence exists to
prove the petitioner’s claims

The Court has ruled that in view of the recognition of the evidentiary difficulties
attendant to the filing of a petition for the privilege of the writs of amparo and habeas
data, not only direct evidence, but circumstantial evidence, indicia, and presumptions
may be considered, so long as they lead to conclusions consistent with the admissible
evidence adduced.20

With the foregoing in mind, the Court still finds that the CA did not commit a reversible
error in declaring that no substantial evidence exist to compel the grant of the reliefs
prayed for by the petitioner. The Court took a second look on the evidence on record
and finds no reason to reconsider the denial of the issuance of the writs prayed for.

In the hearing before the CA, it was claimed that "Joel" once inquired from the petitioner
if the latter was still involved with ANAKPAWIS. By itself, such claim cannot establish
with certainty that the petitioner was being monitored. The encounter happened once
and the petitioner, in his pleadings, nowhere stated that subsequent to the time he was
asked about his involvement with ANAKPAWIS, he still noticed "Joel" conducting
surveillance operations on him. He alleged that he was brought to the camp of the 204th
Infantry Brigade in Naujan, Oriental Mindoro but was sent home at 5:00 p.m. The
petitioner and the respondents have conflicting claims about what transpired thereafter.
The petitioner insisted that he was brought against his will and was asked to stay by the
respondents in places under the latter’s control. The respondents, on the other hand,
averred that it was the petitioner who voluntarily offered his service to be a military
asset, but was rejected as the former still doubted his motives and affiliations.

Section 19 of both the Rules on the Writ of Amparo and Habeas Data is explicit that
questions of fact and law can be raised before the Court in a petition for review on
certiorari under Rule 45. As a rule then, the Court is not bound by the factual findings
made by the appellate court which rendered the judgment in a petition for the issuance
of the writs of amparo and habeas data. Be that as it may, in the instant case, the Court
agrees with the CA that the petitioner failed to discharge the burden of proof imposed
upon him by the rules to establish his claims. It cannot be overemphasized that Section
1 of both the Rules on the Writ of Amparo and Habeas Data expressly include in their
coverage even threatened violations against a person’s right to life, liberty or security.
Further, 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".21

It must be stressed, however, that such "threat" must find rational basis on the
surrounding circumstances of the case. In this case, the petition was mainly anchored
on the alleged threats against his life, liberty and security by reason of his inclusion in
the military’s order of battle, the surveillance and monitoring activities made on him, and
the intimidation exerted upon him to compel him to be a military asset. While as stated
earlier, mere threats fall within the mantle of protection of the writs of amparo and

Page 243 of 265

habeas data, in the petitioner’s case, the restraints and threats allegedly made
allegations lack corroborations, are not supported by independent and credible
evidence, and thus stand on nebulous grounds.

The Court is cognizant of the evidentiary difficulties attendant to a petition for the
issuance of the writs. Unlike, however, the unique nature of cases involving enforced
disappearances or extra-judicial killings that calls for flexibility in considering the gamut
of evidence presented by the parties, this case sets a different scenario and a
significant portion of the petitioner’s testimony could have been easily corroborated. In
his Sinumpaang Salaysay22 dated March 5, 2008 and the Fact Sheet dated December
9, 200723 executed before the Alliance for the Advancement of People’s Rights-
Southern Tagalog (KARAPATAN-ST), the petitioner stated that when he was invited
and interrogated at the military camp in Naujan, Oriental Mindoro, he brought with him
his uncle Norberto Roxas, Barangay Captain Mario Ilagan and two of his bodyguards,
and Edwardo Estabillo – five witnesses who can attest and easily corroborate his
statement – but curiously, the petitioner did not present any piece of evidence, whether
documentary or testimonial, to buttress such claim nor did he give any reason for their
non-presentation.This could have made a difference in light of the denials made by the
respondents as regards the petitioner’s claims.

The existence of an order of battle and inclusion of the petitioner’s name in it is another
allegation by the petitioner that does not find support on the evidence adduced. The
Court notes that such allegation was categorically denied by respondent Gen. Avelino I.
Razon, Jr. who, in his Affidavit dated March 31, 2008, stated that he "does not have
knowledge about any Armed Forces of the Philippines (AFP) ‘order of battle’ which
allegedly lists the petitioner as a member of the CPP." 24 This was also denied by Pvt.
Osio, who the petitioner identified as the one who told him that he was included in the
order of battle.25 The 2nd Infantry (Jungle Fighter) Division of the Philippine Army also
conducted an investigation pursuant to the directive of AFP Chief of Staff Gen.
Esperon,26 and it was shown that the persons identified by the petitioners who allegedly
committed the acts complained of were not connected or assigned to the 2nd Infantry
Division.27

Moreover, the evidence showed that the petitioner’s mobility was never curtailed. From
the time he was allegedly brought to Batangas in August of 2007 until the time he
sought the assistance of KARAPATAN-ST, there was no restraint upon the petitioner to
go home, as in fact, he went home to Mindoro on several instances. And while he may
have been wary of Pvt. Osio’s presence at the pier, there was no claim by the petitioner
that he was threatened or prevented by Pvt. Osio from boarding any vehicle that may
transport him back home. The petitioner also admitted that he had a mobile phone;
hence, he had unhampered access to communication and can readily seek assistance
from non-governmental organizations and even government agencies.

The respondents also belied the petitioner’s claim that they forced him to become a
military informant and instead, alleged that it was the petitioner who volunteered to be
one. Thus, in his Sinumpaang Salaysay28 executed on March 25, 2008, Pvt. Osio

Page 244 of 265

admitted that he actually knew the petitioner way back in 1998 when they were still
students. He also stated that when he saw the petitioner again in 2007, the latter
manifested his intention to become a military informant in exchange for financial and
other forms of assistance.

The petitioner also harps on the alleged "monitoring" activities being conducted by a
certain "Joel", e.g., the latter’s alleged act of following him, pretending to peddle
pandesal and asking him about his personal circumstances. Such allegation by the
petitioner, however, is, at best, a conclusion on his part, a mere impression that the
petitioner had, based on his personal assessment of the circumstances. The petitioner
even admitted in his testimony before the CA that when he had a conversation with
"Joel" sometime in July 2007, the latter merely asked him whether he was still
connected with ANAKPAWIS, but he was not threatened "with anything" and no other
incident occurred between them since then.29 There is clearly nothing on record which
shows that "Joel" committed overt acts that will unequivocally lead to the conclusion
arrived at by the petitioner, especially since the alleged acts committed by "Joel" are
susceptible of different interpretations.

Given that the totality of the evidence presented by the petitioner failed to support his
claims, the reliefs prayed for, therefore, cannot be granted. The liberality accorded to
amparo and habeas data cases does not mean that a claimant is dispensed with the
onus of proving his case. "Indeed, even the liberal standard of substantial evidence
demands some adequate evidence."30

The President cannot be

automatically dropped as a
respondent pursuant to the doctrine
of command responsibility

In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court stated:

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

Page 245 of 265

 c. the superior failed to take the necessary and reasonable measures to prevent
the criminal acts or punish the perpetrators thereof.

The president, being the commander-in-chief of all armed forces, necessarily possesses
control over the military that qualifies him as a superior within the purview of the
command responsibility doctrine.

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. 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). 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. 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.

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. (Citations omitted)

Pursuant to the doctrine of command responsibility, the President, as the Commander-

in-Chief of the AFP, can be held liable for affront against the petitioner’s rights to life,
liberty and security as long as substantial evidence exist to show that he or she had
exhibited involvement in or can be imputed with knowledge of the violations, or had
failed to exercise necessary and reasonable diligence in conducting the necessary
investigations required under the rules.1âwphi1

The Court also stresses that rule that the presidential immunity from suit exists only in
concurrence with the president’s incumbency.32

Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting

president even for acts committed during his or her tenure. 33 Courts look with disfavor
upon the presidential privilege of immunity, especially when it impedes the search for
truth or impairs the vindication of a right.34

Page 246 of 265

The petitioner, however, is not exempted from the burden of proving by substantial
evidence his allegations against the President to make the latter liable for either acts or
omissions violative of rights against life, liberty and security. In the instant case, the
petitioner merely included the President’s name as a party respondent without any
attempt at all to show the latter’s actual involvement in, or knowledge of the alleged
violations. Further, prior to the filing of the petition, there was no request or demand for
any investigation that was brought to the President’s attention. Thus, while the
President cannot be completely dropped as a respondent in a petition for the privilege of
the writs of amparo and habeas data merely on the basis of the presidential immunity
from suit, the petitioner in this case failed to establish accountability of the President, as
commander-in-chief, under the doctrine of command responsibility.

Compliance with technical rules of

procedure is ideal but it cannot be
accorded primacy

Among the grounds cited by the CA in denying the petition for the issuance of the writs
of amparo and habeas data was the defective verification which was attached to the
petition. In Tagitis,35 supporting affidavits required under Section 5(c) of the Rule on the
Writ of Amparo were not submitted together with the petition and it was ruled that the
defect was fully cured when the petitioner and the witness personally testified to prove
the truth of their allegations in the hearings held before the CA. In the instant case, the
defective verification was not the sole reason for the CA’s denial of the petition for the
issuance of the writs of amparo and habeas data. Nonetheless, it must be stressed that
although rules of procedure play an important rule in effectively administering justice,
primacy should not be accorded to them especially in the instant case where there was
at least substantial compliance with the requirements and where petitioner himself
testified in the hearings to attest to the veracity of the claims which he stated in his
petition.

To conclude, compliance with technical rules of procedure is ideal but it cannot be

accorded primacy. In the proceedings before the CA, the petitioner himself testified to
prove the veracity of his allegations which he stated in the petition. Hence, the defect in
the verification attached to the petition. Hence, the defect in the verification attached to
the petition was deemed cured.

WHEREFORE, premises considered, the petitioner's motion for reconsideration is

DENIED WITH FINALITY.

SO ORDERED.

A.M No. 09-6-8-SC

RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
WRIT OF KALIKASAN
Page 247 of 265
 Locus standi or standing to file petition
32.Most Reverend Predro D. Arigo vs. Scott S. Swift, G.R. No. 2016510, September 16,
2014

.R. No. 206510 September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST
REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q.
QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P.
ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI
JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D.,
Junk VF A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V.
PALATINO, Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI
A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY
E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION,
MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ,
Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A.
RICE in his capacity as Commanding Officer of the USS Guardian, PRESIDENT
BENIGNO S. AQUINO III in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment
of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of
the President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of National
Defense, HON. RAMON JESUS P. P AJE, Secretary, Department of Environment
and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy
Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO
D. ISO RENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO
EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO
0. DOMINGO, Commandant of Armed Forces of the Philippines Command and LT.
GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013
Exercise Co-Director, Respondents.

DECISION

VILLARAMA, JR, J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the
issuance of a Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M.
No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases
(Rules), involving violations of environmental laws and regulations in relation to the
grounding of the US military ship USS Guardian over the Tubbataha Reefs.

Factual Background
Page 248 of 265
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines)
language which means "long reef exposed at low tide." Tubbataha is composed of two
huge coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a
smaller coral structure about 20 kilometers north of the atolls. The reefs of Tubbataha
and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of
Palawan.1

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No.
306 issued by President Corazon C. Aquino on August 11, 1988. Located in the middle
of Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies
at the heart of the Coral Triangle, the global center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and
Cultural Organization (UNESCO) as a World Heritage Site. It was recognized as one of
the Philippines' oldest ecosystems, containing excellent examples of pristine reefs and a
high diversity of marine life. The 97,030-hectare protected marine park is also an
important habitat for internationally threatened and endangered marine species.
UNESCO cited Tubbataha's outstanding universal value as an important and significant
natural habitat for in situ conservation of biological diversity; an example representing
significant on-going ecological and biological processes; and an area of exceptional
natural beauty and aesthetic importance.2

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067, 3 otherwise known as
the "Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and
conservation of the globally significant economic, biological, sociocultural, educational
and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present
and future generations." Under the "no-take" policy, entry into the waters of TRNP is
strictly regulated and many human activities are prohibited and penalized or fined,
including fishing, gathering, destroying and disturbing the resources within the TRNP.
The law likewise created the Tubbataha Protected Area Management Board (TPAMB)
which shall be the sole policy-making and permit-granting body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In

December 2012, the US Embassy in the Philippines requested diplomatic clearance for
the said vessel "to enter and exit the territorial waters of the Philippines and to arrive at
the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and
crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving
on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1âwphi1

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea,
the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan. No cine was injured in the incident, and
there have been no reports of leaking fuel or oil.

Page 249 of 265

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed
regret for the incident in a press statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the Department of Foreign Affairs
(DFA) on February 4, "reiterated his regrets over the grounding incident and assured
Foreign Affairs Secretazy Albert F. del Rosario that the United States will provide
appropriate compensation for damage to the reef caused by the ship." 6 By March 30,
2013, the US Navy-led salvage team had finished removing the last piece of the
grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of

their respective sector/organization and others, including minors or generations yet
unborn, filed the present petition agairtst Scott H. Swift in his capacity as Commander of
the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of the USS
Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan
2013 Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A
Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary
Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje
(Department of Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano
(Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine
Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast
Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant),
collectively the "Philippine respondents."

The Petition

Petitioners claim that the grounding, salvaging and post-salvaging operations of the
USS Guardian cause and continue to cause environmental damage of such magnitude
as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros
Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi,
which events violate their constitutional rights to a balanced and healthful ecology. They
also seek a directive from this Court for the institution of civil, administrative and criminal
suits for acts committed in violation of environmental laws and regulations in connection
with the grounding incident.

Specifically, petitioners cite the following violations committed by US respondents under

R.A. No. 10067: unauthorized entry (Section 19); non-payment of conservation fees
(Section 21 ); obstruction of law enforcement officer (Section 30); damages to the reef
(Section 20); and destroying and disturbing resources (Section 26[g]). Furthermore,
petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they
want this Court to nullify for being unconstitutional.

The numerous reliefs sought in this case are set forth in the final prayer of the petition,
to wit: WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the
Honorable Court: 1. Immediately issue upon the filing of this petition a Temporary

Page 250 of 265

Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in
particular,

a. Order Respondents and any person acting on their behalf, to cease and
desist all operations over the Guardian grounding incident;

b. Initially demarcating the metes and bounds of the damaged area as well
as an additional buffer zone;

c. Order Respondents to stop all port calls and war games under
'Balikatan' because of the absence of clear guidelines, duties, and liability
schemes for breaches of those duties, and require Respondents to
assume responsibility for prior and future environmental damage in
general, and environmental damage under the Visiting Forces Agreement
in particular.

d. Temporarily define and describe allowable activities of ecotourism,

diving, recreation, and limited commercial activities by fisherfolk and
indigenous communities near or around the TRNP but away from the
damaged site and an additional buffer zone;

2. After summary hearing, issue a Resolution extending the TEPO until

further orders of the Court;

3. After due proceedings, render a Decision which shall include, without

limitation:

a. Order Respondents Secretary of Foreign Affairs, following the

dispositive portion of Nicolas v. Romulo, "to forthwith negotiate with the
United States representatives for the appropriate agreement on
[environmental guidelines and environmental accountability] under
Philippine authorities as provided in Art. V[] of the VFA ... "

b. Direct Respondents and appropriate agencies to commence

administrative, civil, and criminal proceedings against erring officers and
individuals to the full extent of the law, and to make such proceedings
public;

c. Declare that Philippine authorities may exercise primary and exclusive

criminal jurisdiction over erring U.S. personnel under the circumstances of
this case;

d. Require Respondents to pay just and reasonable compensation in the

settlement of all meritorious claims for damages caused to the Tubbataha
Reef on terms and conditions no less severe than those applicable to

Page 251 of 265

other States, and damages for personal injury or death, if such had been
the case;

e. Direct Respondents to cooperate in providing for the attendance of

witnesses and in the collection and production of evidence, including
seizure and delivery of objects connected with the offenses related to the
grounding of the Guardian;

f. Require the authorities of the Philippines and the United States to notify
each other of the disposition of all cases, wherever heard, related to the
grounding of the Guardian;

g. Restrain Respondents from proceeding with any purported restoration,

repair, salvage or post salvage plan or plans, including cleanup plans
covering the damaged area of the Tubbataha Reef absent a just
settlement approved by the Honorable Court;

h. Require Respondents to engage in stakeholder and LOU consultations

in accordance with the Local Government Code and R.A. 10067;

i. Require Respondent US officials and their representatives to place a

deposit to the TRNP Trust Fund defined under Section 17 of RA 10067 as
a bona .fide gesture towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the areas

affected by the grounding of the Guardian in light of Respondents'
experience in the Port Royale grounding in 2009, among other similar
grounding incidents;

k. Require Respondents to regularly publish on a quarterly basis and in

the name of transparency and accountability such environmental damage
assessment, valuation, and valuation methods, in all stages of negotiation;

l. Convene a multisectoral technical working group to provide scientific

and technical support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National

Defense, and the Department of Environment and Natural Resources to
review the Visiting Forces Agreement and the Mutual Defense Treaty to
consider whether their provisions allow for the exercise of erga omnes
rights to a balanced and healthful ecology and for damages which follow
from any violation of those rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for

purposes of protecting the damaged areas of TRNP;

Page 252 of 265

 o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction")
and Article VI of the Visiting Forces Agreement unconstitutional for
violating equal protection and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the land under Section
2, Article II, of the Philippine Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all

other respects; and

4. Provide just and equitable environmental rehabilitation measures and

such other reliefs as are just and equitable under the premises. 7
(Underscoring supplied.)

Since only the Philippine respondents filed their comment 8 to the petition, petitioners
also filed a motion for early resolution and motion to proceed ex parte against the US
respondents.9

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular
inspection and production orders, respondents assert that: ( 1) the grounds relied upon
for the issuance of a TEPO or writ of Kalikasan have become fait accompli as the
salvage operations on the USS Guardian were already completed; (2) the petition is
defective in form and substance; (3) the petition improperly raises issues involving the
VFA between the Republic of the Philippines and the United States of America; and ( 4)
the determination of the extent of responsibility of the US Government as regards the
damage to the Tubbataha Reefs rests exdusively with the executive branch.

The Court's Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the
present petition.

Locus standi is "a right of appearance in a court of justice on a given question." 10

Specifically, it is "a party's personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result" of the act being challenged, and "calls
for more than just a generalized grievance."11 However, the rule on standing is a
procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary
citizens, taxpayers and legislators when the public interest so requires, such as when
the subject matter of the controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest.12

In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of
citizens to "a balanced and healthful ecology which, for the first time in our constitutional

Page 253 of 265

history, is solemnly incorporated in the fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in the Constitution for it is assumed,
like other civil and polittcal rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with
intergenerational implications.1âwphi1 Such right carries with it the correlative duty to
refrain from impairing the environment.14

On the novel element in the class suit filed by the petitioners minors in Oposa, this
Court ruled that not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own and
future generations. Thus:

Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology
is concerned. Such a right, as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present a:: well
as future generations. Needless to say, every generation has a responsibility to the next
to preserve that rhythm and harmony for the full 1:njoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation to ensure
the protection of that right for the generations to come.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen
suit in environmental cases. The provision on citizen suits in the Rules "collapses the
traditional rule on personal and direct interest, on the principle that humans are
stewards of nature."16

Having settled the issue of locus standi, we shall address the more fundamental
question of whether this Court has jurisdiction over the US respondents who did not
submit any pleading or manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity
or non-suability of the State,17 is expressly provided in Article XVI of the 1987
Constitution which states:

Section 3. The State may not be sued without its consent.

Page 254 of 265

In United States of America v. Judge Guinto,18 we discussed the principle of state
immunity from suit, as follows:

The rule that a state may not be sued without its consent, now · expressed in Article
XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II,
Section 2. x x x.

Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this doctrine, as
accepted by the majority of states, such principles are deemed incorporated in the law
of every civilized state as a condition and consequence of its membership in the society
of nations. Upon its admission to such society, the state is automatically obligated to
comply with these principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification
given by Justice Holmes that ''there can be no legal right against the authority which
makes the law on which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the added inhibition is
expressed in the maxim par in parem, non habet imperium. All states are sovereign
equals and cannot assert jurisdiction over one another. A contrary disposition would, in
the language of a celebrated case, "unduly vex the peace of nations." [De Haber v.
Queen of Portugal, 17 Q. B. 171]

While the doctrine appears to prohibit only suits against the state without its consent, it
is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy
the same,. such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state itself although it
has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a
situation, the state may move to dismiss the comp.taint on the ground that it has been
filed without its consent.19 (Emphasis supplied.)

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment
which reads:

The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of

foreign states from the jurisdiction of local courts, as follows:

Page 255 of 265

The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identified with the personal
immunity of a foreign sovereign from suit and, with the emergence of democratic states,
made to attach not just to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit arc
those of a foreign government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the complaint could be barred
by the immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in whose
service he is, under the maxim -par in parem, non habet imperium -that all states are
soverr~ign equals and cannot assert jurisdiction over one another. The implication, in
broad terms, is that if the judgment against an official would rec 1uire the state itself to
perform an affirmative act to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally impleaded. 21 (Emphasis
supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the
privilege is not an immunity from the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.22

In United States of America v. Judge Guinto,23 one of the consolidated cases therein
involved a Filipino employed at Clark Air Base who was arrested following a buy-bust
operation conducted by two officers of the US Air Force, and was eventually dismissed
from his employment when he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against the military officers, the latter
moved to dismiss the case on the ground that the suit was against the US Government
which had not given its consent. The RTC denied the motion but on a petition for
certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the
complaint. We held that petitioners US military officers were acting in the exercise of
their official functions when they conducted the buy-bust operation against the
complainant and thereafter testified against him at his trial. It follows that for discharging
their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the
courts of another State without the former's consent or waiver has evolved into a
restrictive doctrine which distinguishes sovereign and governmental acts (Jure imperil")
from private, commercial and proprietary acts (Jure gestionis). Under the restrictive rule
of State immunity, State immunity extends only to acts Jure imperii. The restrictive
application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic
affairs.24

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In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity
principle, thus:

It is a different matter where the public official is made to account in his capacity as
such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set
forth by JustiGe Zaldivar in Director of the Bureau of Telecommunications, et al. vs.
Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the State, and an
action against the officials or officers by one whose rights have been invaded or violated
by such acts, for the protection of his rights, is not a suit against the State within the rule
of immunity of the State from suit. In the same tenor, it has been said that an action at
law or suit in equity against a State officer or the director of a State department on the
ground that, while claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under an assumption of
authority which he does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent." The rationale for this
ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice.

xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of
immunity from suit will not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment
they are sued in their individual capacity. This situation usually arises where the public
official acts without authority or in excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.) In this case, the
US respondents were sued in their official capacity as commanding officers of the US
Navy who had control and supervision over the USS Guardian and its crew. The alleged
act or omission resulting in the unfortunate grounding of the USS Guardian on the
TRNP was committed while they we:re performing official military duties. Considering
that the satisfaction of a judgment against said officials will require remedial actions and
appropriation of funds by the US government, the suit is deemed to be one against the
US itself. The principle of State immunity therefore bars the exercise of jurisdiction by
this Court over the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position
that the conduct of the US in this case, when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the United Nations Convention on the Law of the
Sea (UNCLOS). He explained that while historically, warships enjoy sovereign immunity
from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception
to this rule in cases where they fail to comply with the rules and regulations of the

Page 257 of 265

coastal State regarding passage through the latter's internal waters and the territorial
sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a
matter of long-standing policy the US considers itself bound by customary international
rules on the "traditional uses of the oceans" as codified in UNCLOS, as can be gleaned
from previous declarations by former Presidents Reagan and Clinton, and the US
judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd. 27

The international law of the sea is generally defined as "a body of treaty rules arid
customary norms governing the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a branch of public international
law, regulating the relations of states with respect to the uses of the oceans." 28 The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982
at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State

sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum).29 The freedom to use the world's marine waters is one of the oldest customary
principles of international law.30 The UNCLOS gives to the coastal State sovereign
rights in varying degrees over the different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the
high seas. It also gives coastal States more or less jurisdiction over foreign vessels
depending on where the vessel is located.31

Insofar as the internal waters and territorial sea is concerned, the Coastal State
exercises sovereignty, subject to the UNCLOS and other rules of international law. Such
sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.32

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to leave the
territorial sea immediately.

Article 31
Responsibility of the flag State for damage caused by a warship

or other government ship operated for non-commercial purposes

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The flag State shall bear international responsibility for any loss or damage to the
coastal State resulting from the non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and regulations of the coastal
State concerning passage through the territorial sea or with the provisions of this
Convention or other rules of international law.

Article 32
Immunities of warships and other government ships operated for non-commercial
purposes

With such exceptions as are contained in subsection A and in articles 30 and 31,
nothing in this Convention affects the immunities of warships and other government
ships operated for non-commercial purposes. (Emphasis supplied.) A foreign warship's
unauthorized entry into our internal waters with resulting damage to marine resources is
one situation in which the above provisions may apply. But what if the offending warship
is a non-party to the UNCLOS, as in this case, the US?

An overwhelming majority - over 80% -- of nation states are now members of UNCLOS,
but despite this the US, the world's leading maritime power, has not ratified it.

While the Reagan administration was instrumental in UNCLOS' negotiation and drafting,
the U.S. delegation ultimately voted against and refrained from signing it due to
concerns over deep seabed mining technology transfer provisions contained in Part XI.
In a remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the objection.able
provisions. The revisions satisfied the Clinton administration, which signed the revised
Part XI implementing agreement in 1994. In the fall of 1994, President Clinton
transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting
its advice and consent. Despite consistent support from President Clinton, each of his
successors, and an ideologically diverse array of stakeholders, the Senate has since
withheld the consent required for the President to internationally bind the United States
to UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the
108th and 110th Congresses, its progress continues to be hamstrung by significant
pockets of political ambivalence over U.S. participation in international institutions. Most
recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest priorities. This did not occur,
and no Senate action has been taken on UNCLOS by the 112th Congress. 34

Justice Carpio invited our attention to the policy statement given by President Reagan
on March 10, 1983 that the US will "recognize the rights of the other , states in the
waters off their coasts, as reflected in the convention [UNCLOS], so long as the rights
and freedom of the United States and others under international law are recognized by
such coastal states", and President Clinton's reiteration of the US policy "to act in a
manner consistent with its [UNCLOS] provisions relating to traditional uses of the

Page 259 of 265

oceans and to encourage other countries to do likewise." Since Article 31 relates to the
"traditional uses of the oceans," and "if under its policy, the US 'recognize[s] the rights of
the other states in the waters off their coasts,"' Justice Carpio postulates that "there is
more reason to expect it to recognize the rights of other states in their internal waters,
such as the Sulu Sea in this case."

As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to
join the UN CLOS was centered on its disagreement with UN CLOS' regime of deep
seabed mining (Part XI) which considers the oceans and deep seabed commonly
owned by mankind," pointing out that such "has nothing to do with its [the US']
acceptance of customary international rules on navigation."

It may be mentioned that even the US Navy Judge Advocate General's Corps publicly
endorses the ratification of the UNCLOS, as shown by the following statement posted
on its official website:

The Convention is in the national interest of the United States because it establishes
stable maritime zones, including a maximum outer limit for territorial seas; codifies
innocent passage, transit passage, and archipelagic sea lanes passage rights; works
against "jurisdictiomtl creep" by preventing coastal nations from expanding their own
maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ
government aircraft.

xxxx

Economically, accession to the Convention would support our national interests by

enhancing the ability of the US to assert its sovereign rights over the resources of one
of the largest continental shelves in the world. Further, it is the Law of the Sea
Convention that first established the concept of a maritime Exclusive Economic Zone
out to 200 nautical miles, and recognized the rights of coastal states to conserve and
manage the natural resources in this Zone.35

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does
not mean that the US will disregard the rights of the Philippines as a Coastal State over
its internal waters and territorial sea. We thus expect the US to bear "international
responsibility" under Art. 31 in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-
time ally and trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to compensate the
damage caused by its warship while transiting our internal waters. Much less can we
comprehend a Government exercising leadership in international affairs, unwilling to
comply with the UNCLOS directive for all nations to cooperate in the global task to
protect and preserve the marine environment as provided in Article 197, viz:

Article 197
Cooperation on a global or regional basis

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States shall cooperate on a global basis and, as appropriate, on a regional basis,
directly or through competent international organizations, in formulating and elaborating
international rules, standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the marine environment,
taking into account characteristic regional features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond

dispute. Although the said treaty upholds the immunity of warships from the jurisdiction
of Coastal States while navigating the.latter's territorial sea, the flag States shall be
required to leave the territorial '::;ea immediately if they flout the laws and regulations of
the Coastal State, and they will be liable for damages caused by their warships or any
other government vessel operated for non-commercial purposes under Article 31.

Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise,
they invoke federal statutes in the US under which agencies of the US have statutorily
waived their immunity to any action. Even under the common law tort claims, petitioners
asseverate that the US respondents are liable for negligence, trespass and nuisance.

We are not persuaded.

The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines to promote "common security interests" between the
US and the Philippines in the region. It provides for the guidelines to govern such visits
of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies. 36 The
invocation of US federal tort laws and even common law is thus improper considering
that it is the VF A which governs disputes involving US military ships and crew
navigating Philippine waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction
and not to special civil actions such as the present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal
case against a person charged with a violation of an environmental law is to be filed
separately:

SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the
writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative
actions.

In any case, it is our considered view that a ruling on the application or non-application
of criminal jurisdiction provisions of the VF A to US personnel who may be found
responsible for the grounding of the USS Guardian, would be premature and beyond
the province of a petition for a writ of Kalikasan. We also find it unnecessary at this point
to determine whether such waiver of State immunity is indeed absolute. In the same
vein, we cannot grant damages which have resulted from the violation of environmental

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laws. The Rules allows the recovery of damages, including the collection of
administrative fines under R.A. No. 10067, in a separate civil suit or that deemed
instituted with the criminal action charging the same violation of an environmental law. 37

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for
issuance of a writ of Kalikasan, to wit:

SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ of
kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing

acts or neglecting the performance of a duty in violation of environmental
laws resulting in environmental destruction or damage;

(b) Directing the respondent public official, govemment agency, private

person or entity to protect, preserve, rehabilitate or restore the
environment;

(c) Directing the respondent public official, government agency, private

person or entity to monitor strict compliance with the decision and orders
of the court;

(d) Directing the respondent public official, government agency, or private

person or entity to make periodic reports on the execution of the final
judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced
and healthful ecology or to the protection, preservation, rehabilitation or
restoration of the environment, except the award of damages to individual
petitioners. (Emphasis supplied.)

We agree with respondents (Philippine officials) in asserting that this petition has
become moot in the sense that the salvage operation sought to be enjoined or
restrained had already been accomplished when petitioners sought recourse from this
Court. But insofar as the directives to Philippine respondents to protect and rehabilitate
the coral reef stn icture and marine habitat adversely affected by the grounding incident
are concerned, petitioners are entitled to these reliefs notwithstanding the completion of
the removal of the USS Guardian from the coral reef. However, we are mindful of the
fact that the US and Philippine governments both expressed readiness to negotiate and
discuss the matter of compensation for the damage caused by the USS Guardian. The
US Embassy has also declared it is closely coordinating with local scientists and
experts in assessing the extent of the damage and appropriate methods of
rehabilitation.

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Exploring avenues for settlement of environmental cases is not proscribed by the Rules.
As can be gleaned from the following provisions, mediation and settlement are available
for the consideration of the parties, and which dispute resolution methods are
encouraged by the court, to wit:

RULE3

xxxx

SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall
inquire from the parties if they have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the
court shall refer the case to the clerk of court or legal researcher for mediation.

Mediation must be conducted within a non-extendible period of thirty (30) days from
receipt of notice of referral to mediation.

The mediation report must be submitted within ten (10) days from the expiration of the
30-day period.

SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the
continuance of the pre-trial. Before the scheduled date of continuance, the court may
refer the case to the branch clerk of court for a preliminary conference for the following
purposes:

(a) To assist the parties in reaching a settlement;

xxxx

SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their
counsels under oath, and they shall remain under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the
dispute. The judge may issue a consent decree approving the agreement between the
parties in accordance with law, morals, public order and public policy to protect the right
of the people to a balanced and healthful ecology.

xxxx

SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to
compromise or settle in accordance with law at any stage of the proceedings before
rendition of judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile
cruiser, the USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef

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Runway and remained stuck for four days. After spending $6.5 million restoring the
coral reef, the US government was reported to have paid the State of Hawaii $8.5
million in settlement over coral reef damage caused by the grounding.38

To underscore that the US government is prepared to pay appropriate compensation for

the damage caused by the USS Guardian grounding, the US Embassy in the
Philippines has announced the formation of a US interdisciplinary scientific team which
will "initiate discussions with the Government of the Philippines to review coral reef
rehabilitation options in Tubbataha, based on assessments by Philippine-based marine
scientists." The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate Philippine
government entities, non-governmental organizations, and scientific experts from
Philippine universities."39

A rehabilitation or restoration program to be implemented at the cost of the violator is

also a major relief that may be obtained under a judgment rendered in a citizens' suit
under the Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff
proper reliefs which shall include the protection, preservation or rehabilitation of the
environment and the payment of attorney's fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by the violator, or to
contribute to a special trust fund for that purpose subject to the control of the
court.1âwphi1

In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of
these issues impinges on our relations with another State in the context of common
security interests under the VFA. It is settled that "[t]he conduct of the foreign relations
of our government is committed by the Constitution to the executive and legislative-"the
political" --departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision." 40

On the other hand, we cannot grant the additional reliefs prayed for in the petition to
order a review of the VFA and to nullify certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA
was duly concurred in by the Philippine Senate and has been recognized as a treaty by
the United States as attested and certified by the duly authorized representative of the
United States government. The VF A being a valid and binding agreement, the parties
are required as a matter of international law to abide by its terms and provisions. 42 The
present petition under the Rules is not the proper remedy to assail the constitutionality

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of its provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ
of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

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