WRITS TO SELF-INCRIMINATION ACJUCO 1
WRITS OF HABEAS CORPUS AND
AMPARO
[G.R. No. 139789. May 12, 2000]
ERLINDA K. ILUSORIO, petitioner, vs.
ERLINDA I. BILDNER and SYLVIA K.
ILUSORIO, JOHN DOE and JANE DOE,
respondents. Mesm
[G.R. No. 139808. May 12, 2000]
POTENCIANO ILUSORIO, MA. ERLINDA I.
BILDNER, and SYLVIA ILUSORIO,
petitioners, vs. COURT OF APPEALS and
ERLINDA K. ILUSORIO, respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to
compel her husband to live with her in conjugal
bliss? The answer is no. Marital rights
including coverture and living in conjugal
dwelling may not be enforced by the extra-
ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of
illegal confinement or detention,[1] or by which
the rightful custody of a person is withheld
from the one entitled thereto.[2] Slx
"Habeas corpus is a writ directed to the person
detaining another, commanding him to
produce the body of the prisoner at a
designated time and place, with the day and
cause of his capture and detention, to do,
submit to, and receive whatsoever the court or
judge awarding the writ shall consider in that
behalf."[3]
It is a high prerogative, common-law writ, of
ancient origin, the great object of which is the
liberation of those who may be imprisoned
without sufficient cause.[4] It is issued when
one is deprived of liberty or is wrongfully
prevented from exercising legal custody over
another person.[5]
The petition of Erlinda K. Ilusorio[6] is to
reverse the decision[7] of the Court of Appeals
and its resolution[8] dismissing the application
for habeas corpus to have the custody of her
husband, lawyer Potenciano Ilusorio and
enforce consortium as the wife.
On the other hand, the petition of Potenciano
Ilusorio[9] is to annul that portion of the
decision of the Court of Appeals giving Erlinda
K. Ilusorio visitation rights to her husband and
to enjoin Erlinda and the Court of Appeals from
enforcing the visitation rights.
The undisputed facts are as follows: Scslx
Erlinda Kalaw Ilusorio is the wife of lawyer
Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age
possessed of extensive property valued at
millions of pesos. For many years, lawyer
Potenciano Ilusorio was Chairman of the
Board and President of Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and
Potenciano Ilusorio contracted matrimony and
lived together for a period of thirty (30) years.
In 1972, they separated from bed and board
for undisclosed reasons. Potenciano lived at
Urdaneta Condominium, Ayala Ave., Makati
City when he was in Manila and at Ilusorio
Penthouse, Baguio Country Club when he was
in Baguio City. On the other hand, Erlinda lived
in Antipolo City.
Out of their marriage, the spouses had six (6)
children, namely: Ramon Ilusorio (age 55);
Erlinda Ilusorio Bildner (age 52); Maximo (age
50); Sylvia (age 49); Marietta (age 48); and
Shereen (age 39).
On December 30, 1997, upon Potencianos
arrival from the United States, he stayed with
Erlinda for about five (5) months in Antipolo
City. The children, Sylvia and Erlinda (Lin),
alleged that during this time, their mother gave
Potenciano an overdose of 200 mg instead of
100 mg Zoloft, an antidepressant drug
prescribed by his doctor in New York, U.S.A.
As a consequence, Potencianos health
deteriorated.
On February 25, 1998, Erlinda filed with the
Regional Trial Court, Antipolo City a
petition[10] for guardianship over the person
and property of Potenciano Ilusorio due to the
latters advanced age, frail health, poor
eyesight and impaired judgment.

On May 31, 1998, after attending a corporate
meeting in Baguio City, Potenciano Ilusorio did
not return to Antipolo City and instead lived at
Cleveland Condominium, Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court
of Appeals a petition for habeas corpus to
have the custody of lawyer Potenciano
Ilusorio. She alleged that respondents[11]
refused petitioners demands to see and visit
her husband and prohibited Potenciano from
returning to Antipolo City.
After due hearing, on April 5, 1999, the Court
of Appeals rendered decision the dispositive
portion of which reads:
"WHEREFORE, in the light of the foregoing
disquisitions, judgment is hereby rendered:
"(1) Ordering, for humanitarian consideration
and upon petitioners manifestation,
respondents Erlinda K. Ilusorio Bildner and
Sylvia Ilusorio-Yap, the administrator of
Cleveland Condominium or anywhere in its
place, his guards and Potenciano Ilusorios
staff especially Ms. Aurora Montemayor to
allow visitation rights to Potenciano Ilusorios
wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors
thereof, under penalty of contempt in case of
violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus
previously issued be recalled and the herein
petition for habeas corpus be DENIED DUE
COURSE, as it is hereby DISMISSED for lack
of unlawful restraint or detention of the subject
of the petition.
"SO ORDERED."[12]
Hence, the two petitions, which were
consolidated and are herein jointly decided.
As heretofore stated, a writ of habeas corpus
extends to all cases of illegal confinement or
detention,[13] or by which the rightful custody
of a person is withheld from the one entitled
thereto. It is available where a person
continues to be unlawfully denied of one or
more of his constitutional freedoms, where
there is denial of due process, where the
restraints are not merely involuntary but are
WRITS TO SELF-INCRIMINATION ACJUCO 2
unnecessary, and where a deprivation of
freedom originally valid has later become
arbitrary.[14] It is devised as a speedy and
effectual remedy to relieve persons from
unlawful restraint, as the best and only
sufficient defense of personal freedom.[15]
Jksm
The essential object and purpose of the writ of
habeas corpus is to inquire into all manner of
involuntary restraint, and to relieve a person
therefrom if such restraint is illegal.[16]
To justify the grant of the petition, the restraint
of liberty must be an illegal and involuntary
deprivation of freedom of action.[17] The
illegal restraint of liberty must be actual and
effective, not merely nominal or moral.[18]
The evidence shows that there was no actual
and effective detention or deprivation of lawyer
Potenciano Ilusorios liberty that would justify
the issuance of the writ. The fact that lawyer
Potenciano Ilusorio is about 86 years of age,
or under medication does not necessarily
render him mentally incapacitated. Soundness
of mind does not hinge on age or medical
condition but on the capacity of the individual
to discern his actions.
After due hearing, the Court of Appeals
concluded that there was no unlawful restraint
on his liberty.
The Court of Appeals also observed that
lawyer Potenciano Ilusorio did not request the
administrator of the Cleveland Condominium
not to allow his wife and other children from
seeing or visiting him. He made it clear that he
did not object to seeing them.
As to lawyer Potenciano Ilusorios mental
state, the Court of Appeals observed that he
was of sound and alert mind, having answered
all the relevant questions to the satisfaction of
the court.
Being of sound mind, he is thus possessed
with the capacity to make choices. In this case,
the crucial choices revolve on his residence
and the people he opts to see or live with. The
choices he made may not appeal to some of
his family members but these are choices
which exclusively belong to Potenciano. He
made it clear before the Court of Appeals that
 WRITS TO SELF-INCRIMINATION ACJUCO 3

he was not prevented from leaving his house

or seeing people. With that declaration, and
absent any true restraint on his liberty, we
have no reason to reverse the findings of the
Court of Appeals.

With his full mental capacity coupled with the

right of choice, Potenciano Ilusorio may not be
the subject of visitation rights against his free
choice. Otherwise, we will deprive him of his
right to privacy. Needless to say, this will run
against his fundamental constitutional right. Es
m

The Court of Appeals exceeded its authority

when it awarded visitation rights in a petition
for habeas corpus where Erlinda never even
prayed for such right. The ruling is not
consistent with the finding of subjects sanity.

When the court ordered the grant of visitation

rights, it also emphasized that the same shall
be enforced under penalty of contempt in case
of violation or refusal to comply. Such
assertion of raw, naked power is unnecessary.

The Court of Appeals missed the fact that the

case did not involve the right of a parent to visit
a minor child but the right of a wife to visit a
husband. In case the husband refuses to see
his wife for private reasons, he is at liberty to
do so without threat of any penalty attached to
the exercise of his right.

No court is empowered as a judicial authority

to compel a husband to live with his wife.
Coverture cannot be enforced by compulsion
of a writ of habeas corpus carried out by
sheriffs or by any other mesne process. That
is a matter beyond judicial authority and is best
left to the man and womans free choice.

WHEREFORE, in G. R. No. 139789, the Court

DISMISSES the petition for lack of merit. No
costs.

In G. R. No. 139808, the Court GRANTS the

petition and nullifies the decision of the Court
of Appeals insofar as it gives visitation rights
to respondent Erlinda K. Ilusorio. No costs.

SO ORDERED.

[G.R. No. 158802. November 17, 2004]
IN RE: THE WRIT OF HABEAS CORPUS
FOR REYNALDO DE VILLA (detained at the
New Bilibid Prisons, Muntinlupa City)
REYNALDO DE VILLA, petitioner, JUNE DE
VILLA, petitioner-relator, vs. THE
DIRECTOR, NEW BILIBID PRISONS,
respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for the issuance of a writ of
habeas corpus under Rule 102 of the Rules of
Court. Petitioner Reynaldo de Villa, joined by
his son, petitioner-relator June de Villa, seeks
a two-fold relief: First, that respondent Director
of Prisons justify the basis for the
imprisonment of petitioner Reynaldo de Villa;
and second, that petitioner be granted a new
trial.[1] These reliefs are sought on the basis
of purportedly exculpatory evidence, gathered
after performing deoxyribonucleic acid (DNA)
testing on samples allegedly collected from
the petitioner and a child born to the victim of
the rape.
By final judgment dated February 1, 2001, in
People of the Philippines v. Reynaldo de
Villa,[2] we found petitioner guilty of the rape
of Aileen Mendoza, his niece by affinity;
sentenced him to suffer the penalty of reclusin
perpetua; and ordered him to pay the offended
party civil indemnity, moral damages, costs of
the suit, and support for Leahlyn Corales
Mendoza, the putative child born of the rape.
Petitioner is currently serving his sentence at
the New Bilibid Prison, Muntinlupa City.
As summarized in our Decision dated
February 1, 2001, Aileen Mendoza charged
petitioner Reynaldo de Villa with rape in an
information dated January 9, 1995, filed with
the Regional Trial Court of Pasig City. When
arraigned on January 26, 1995, petitioner
entered a plea of not guilty.[3]
During the trial, the prosecution established
that sometime in the third week of April 1994,
at about 10:00 in the morning, Aileen Mendoza
woke up in her familys rented room in Sagad,
Pasig, Metro Manila, to find petitioner on top of
WRITS TO SELF-INCRIMINATION ACJUCO 4
her. Aileen was then aged 12 years and ten
months. She was unable to shout for help
because petitioner covered her mouth with a
pillow and threatened to kill her. Aileen could
not do anything but cry. Petitioner succeeded
in inserting his penis inside her vagina. After
making thrusting motions with his body,
petitioner ejaculated. This encounter allegedly
resulted in Aileens pregnancy, which was
noticed by her mother, Leonila Mendoza,
sometime in November 1994. When
confronted by her mother, Aileen revealed that
petitioner raped her. Aileens parents then
brought her to the Pasig Police Station, where
they lodged a criminal complaint against
petitioner.[4]
Dr. Rosaline Cosidon, who examined Aileen,
confirmed that she was eight months pregnant
and found in her hymen healed lacerations at
the 5:00 and 8:00 positions. On December 19,
1994, Aileen gave birth to a baby girl whom
she named Leahlyn Mendoza.[5]
In his defense, petitioner alleged that, at the
time of the alleged rape, he was already 67
years old. Old age and sickness had rendered
him incapable of having an erection. He further
averred that Aileens family had been holding a
grudge against him, which accounted for the
criminal charges. Finally, he interposed the
defense of alibi, claiming that at the time of the
incident, he was in his hometown of San Luis,
Batangas.[6]
The trial court found petitioner guilty beyond
reasonable doubt of the crime of qualified
rape, and sentenced him to death, to
indemnify the victim in the amount of
P50,000.00, to pay the costs of the suit and to
support the child, Leahlyn Mendoza.[7]
On automatic review,[8] we found that the date
of birth of Aileens child was medically
consistent with the time of the rape. Since it
was never alleged that Aileen gave birth to a
full-term nine-month old baby, we gave
credence to the prosecutions contention that
she prematurely gave birth to an eight-month
old baby by normal delivery.[9] Thus, we
affirmed petitioners conviction for rape, in a
Decision the dispositive portion of which
reads:

WHEREFORE, the judgment of the Regional
Trial Court, finding accused-appellant guilty
beyond reasonable doubt of the crime of rape,
is AFFIRMED with the MODIFICATIONS that
he is sentenced to suffer the penalty of
reclusin perpetua and ordered to pay the
offended party P50,000.00 as civil indemnity;
P50,000.00 as moral damages; costs of the
suit and to provide support for the child
Leahlyn Corales Mendoza.
SO ORDERED.[10]
Three years after the promulgation of our
Decision, we are once more faced with the
question of Reynaldo de Villas guilt or
innocence.
Petitioner-relator in this case, June de Villa, is
the son of Reynaldo. He alleges that during the
trial of the case, he was unaware that there
was a scientific test that could determine once
and for all if Reynaldo was the father of the
victims child, Leahlyn. Petitioner-relator was
only informed during the pendency of the
automatic review of petitioners case that DNA
testing could resolve the issue of paternity.[11]
This information was apparently furnished by
the Free Legal Assistance Group (FLAG) Anti-
Death Penalty Task Force, which took over as
counsel for petitioner.
Thus, petitioners brief in People v. de Villa
sought the conduct of a blood type test and
DNA test in order to determine the paternity of
the child allegedly conceived as a result of the
rape.[12] This relief was implicitly denied in our
Decision of February 21, 2001.
On March 16, 2001, Reynaldo de Villa filed a
Motion for Partial Reconsideration of the
Decision, wherein he once more prayed that
DNA tests be conducted.[13] The Motion was
denied with finality in a Resolution dated
November 20, 2001.[14] Hence, the Decision
became final and executory on January 16,
2002.[15]
Petitioner-relator was undaunted by these
challenges. Having been informed that DNA
tests required a sample that could be extracted
from saliva, petitioner-relator asked Billy Joe
de Villa, a grandson of Reynaldo de Villa and
a classmate of Leahlyn Mendoza, to ask
Leahlyn to spit into a new, sterile cup.[16]
WRITS TO SELF-INCRIMINATION ACJUCO 5
Leahlyn readily agreed and did so. Billy Joe
took the sample home and gave it to the
petitioner-relator, who immediately labeled the
cup as Container A.
Petitioner-relator then gathered samples from
four grandchildren of Reynaldo de Villa. These
samples were placed in separate containers
with distinguishing labels and temporarily
stored in a refrigerator prior to transport to the
DNA Analysis Laboratory at the National
Science Research Institute (NSRI).[17] During
transport, the containers containing the saliva
samples were kept on ice.
Petitioner-relator requested the NSRI to
conduct DNA testing on the sample given by
Leahlyn Mendoza, those given by the
grandchildren of Reynaldo de Villa, and that
given by Reynaldo de Villa himself. The
identities of the donors of the samples, save
for the sample given by Reynaldo de Villa,
were not made known to the DNA Analysis
Laboratory.[18]
After testing, the DNA Laboratory rendered a
preliminary report on March 21, 2003, which
showed that Reynaldo de Villa could not have
sired any of the children whose samples were
tested, due to the absence of a match between
the pertinent genetic markers in petitioners
sample and those of any of the other samples,
including Leahlyns.[19]
Hence, in the instant petition for habeas
corpus, petitioner argues as follows:
DNA ANALYSIS ON PATERNITY SHOWS
CONCLUSIVELY THAT PETITIONER DE
VILLA IS NOT THE FATHER OF LEAHLYN
MENDOZA; HIS CONVICTION FOR RAPE,
BASED ON THE FACT THAT LEAHLYN WAS
SIRED AS A RESULT OF THE ALLEGED
RAPE, CANNOT STAND AND MUST BE SET
ASIDE.[20]
xxxxxxxxx
A NEW TRIAL TO CONSIDER NEWLY
DISCOVERED EVIDENCE IS PROPER AND
MAY BE ORDERED BY THIS COURT IN
VIEW OF THE RESULTS OF THE DNA
TESTS CONDUCTED.[21]

Considering that the issues are inter-twined,
they shall be discussed together.
In brief, petitioner relies upon the DNA
evidence gathered subsequent to the trial in
order to re-litigate the factual issue of the
paternity of the child Leahlyn Mendoza.
Petitioner alleges that this issue is crucial,
considering that his conviction in 2001 was
based on the factual finding that he sired the
said child. Since this paternity is now
conclusively disproved, he argues that the
2001 conviction must be overturned.
In essence, petitioner invokes the remedy of
the writ of habeas corpus to collaterally attack
the 2001 Decision. The ancillary remedy of a
motion for new trial is resorted to solely to
allow the presentation of what is alleged to be
newly-discovered evidence. This Court is thus
tasked to determine, first, the propriety of the
issuance of a writ of habeas corpus to release
an individual already convicted and serving
sentence by virtue of a final and executory
judgment; and second, the propriety of
granting a new trial under the same factual
scenario.
The extraordinary writ of habeas corpus has
long been a haven of relief for those seeking
liberty from any unwarranted denial of freedom
of movement. Very broadly, the writ applies to
all cases of illegal confinement or detention by
which a person has been deprived of his
liberty, or by which the rightful custody of any
person has been withheld from the person
entitled thereto.[22] Issuance of the writ
necessitates that a person be illegally
deprived of his liberty. In the celebrated case
of Villavicencio v. Lukban,[23] we stated that
[a]ny restraint which will preclude freedom of
action is sufficient.[24]
The most basic criterion for the issuance of the
writ, therefore, is that the individual seeking
such relief be illegally deprived of his freedom
of movement or placed under some form of
illegal restraint. If an individuals liberty is
restrained via some legal process, the writ of
habeas corpus is unavailing. Concomitant to
this principle, the writ of habeas corpus cannot
be used to directly assail a judgment rendered
by a competent court or tribunal which, having
duly acquired jurisdiction, was not deprived or
WRITS TO SELF-INCRIMINATION ACJUCO 6
ousted of this jurisdiction through some
anomaly in the conduct of the proceedings.
Thus, notwithstanding its historic function as
the great writ of liberty, the writ of habeas
corpus has very limited availability as a post-
conviction remedy. In the recent case of Feria
v. Court of Appeals,[25] we ruled that review
of a judgment of conviction is allowed in a
petition for the issuance of the writ of habeas
corpus only in very specific instances, such as
when, 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.[26]
In this instance, petitioner invokes the writ of
habeas corpus to assail a final judgment of
conviction, without, however, providing a legal
ground on which to anchor his petition. In fine,
petitioner alleges neither the deprivation of a
constitutional right, the absence of jurisdiction
of the court imposing the sentence, or that an
excessive penalty has been imposed upon
him.
In fine, petitioner invokes the remedy of
habeas corpus in order to seek the review of
findings of fact long passed upon with finality.
This relief is far outside the scope of habeas
corpus proceedings. In the early case of Abriol
v. Homeres,[27] for example, this Court stated
the general rule that the writ of habeas corpus
is not a writ of error, and should not be thus
used. The writ of habeas corpus, whereas
permitting a collateral challenge of the
jurisdiction of the court or tribunal issuing the
process or judgment by which an individual is
deprived of his liberty, cannot be distorted by
extending the inquiry to mere errors of trial
courts acting squarely within their
jurisdiction.[28] The reason for this is
explained very simply in the case of Velasco v.
Court of Appeals:[29] a habeas corpus petition
reaches the body, but not the record of the
case. [30] A record must be allowed to remain
extant, and cannot be revised, modified,
altered or amended by the simple expedient of
resort to habeas corpus proceedings.
Clearly, mere errors of fact or law, which did
not have the effect of depriving the trial court

of its jurisdiction over the case and the person
of the defendant, are not correctible in a
petition for the issuance of the writ of habeas
corpus; if at all, these errors must be corrected
on certiorari or on appeal, in the form and
manner prescribed by law.[31] In the past, this
Court has disallowed the review of a courts
appreciation of the evidence in a petition for
the issuance of a writ of habeas corpus, as this
is not the function of said writ.[32] A survey of
our decisions in habeas corpus cases
demonstrates that, in general, the writ of
habeas corpus is a high prerogative writ which
furnishes an extraordinary remedy; it may thus
be invoked only under extraordinary
circumstances.[33] We have been categorical
in our pronouncements that the writ of habeas
corpus is not to be used as a substitute for
another, more proper remedy. Resort to the
writ of habeas corpus is available only in the
limited instances when a judgment is rendered
by a court or tribunal devoid of jurisdiction. If,
for instance, it can be demonstrated that there
was a deprivation of a constitutional right, the
writ can be granted even after an individual
has been meted a sentence by final judgment.
Thus, in the case of Chavez v. Court of
Appeals,[34] the writ of habeas corpus was
held to be available where an accused was
deprived of the constitutional right against self-
incrimination. A defect so pronounced as the
denial of an accuseds constitutional rights
results in the absence or loss of jurisdiction,
and therefore invalidates the trial and the
consequent conviction of the accused. That
void judgment of conviction may be
challenged by collateral attack, which
precisely is the function of habeas corpus.[35]
Later, in Gumabon v. Director of the Bureau of
Prisons,[36] this Court ruled that, once a
deprivation of a constitutional right is shown to
exist, the court that rendered the judgment is
deemed ousted of jurisdiction and habeas
corpus is the appropriate remedy to assail the
legality of the detention.[37] Although in Feria
v. Court of Appeals[38] this Court was inclined
to allow the presentation of new evidence in a
petition for the issuance of a writ of habeas
corpus, this was an exceptional situation. In
that case, we laid down the general rule, which
states that the burden of proving illegal
restraint by the respondent rests on the
petitioner who attacks such restraint. Where
the return is not subject to exception, that is,
WRITS TO SELF-INCRIMINATION ACJUCO 7
where it sets forth a process which, on its face,
shows good ground for the detention of the
prisoner, it is incumbent on petitioner to allege
and prove new matter that tends to invalidate
the apparent effect of such process.[39]
In the recent case of Calvan v. Court of
Appeals,[40] we summarized the scope of
review allowable in a petition for the issuance
of the writ of habeas corpus. We ruled that the
writ of habeas corpus, although not designed
to interrupt the orderly administration of
justice, can be invoked by the attendance of a
special circumstance that requires immediate
action. In such situations, the inquiry on a writ
of habeas corpus would be addressed, not to
errors committed by a court within its
jurisdiction, but to the question of whether the
proceeding or judgment under which a person
has been restrained is a complete nullity. The
probe may thus proceed to check on the power
and authority, itself an equivalent test of
jurisdiction, of the court or the judge to render
the order that so serves as the basis of
imprisonment or detention.[41] It is the nullity
of an assailed judgment of conviction which
makes it susceptible to collateral attack
through the filing of a petition for the issuance
of the writ of habeas corpus.
Upon a perusal of the records not merely of
this case but of People v. de Villa, we find that
the remedy of the writ of habeas corpus is
unavailing.
First, the denial of a constitutional right has not
been alleged by petitioner. As such, this Court
is hard-pressed to find legal basis on which to
anchor the grant of a writ of habeas corpus.
Much as this Court sympathizes with
petitioners plea, a careful scrutiny of the
records does not reveal any constitutional right
of which the petitioner was unduly deprived.
We are aware that other jurisdictions have
seen fit to grant the writ of habeas corpus in
order to test claims that a defendant was
denied effective aid of counsel.[42] In this
instance, we note that the record is replete
with errors committed by counsel, and it can
be alleged that the petitioner was, at trial,
denied the effective aid of counsel. The United
States Supreme Court requires a defendant
alleging incompetent counsel to show that the
attorneys performance was deficient under a

reasonable standard, and additionally to show
that the outcome of the trial would have been
different with competent counsel.[43] The
purpose of the right to effective assistance of
counsel is to ensure that the defendant
receives a fair trial.[44]
The U.S. Supreme Court asserts that in
judging any claim of ineffective assistance of
counsel, one must examine whether counsels
conduct undermined the proper functioning of
the adversarial process to such an extent that
the trial did not produce a fair and just
result.[45] The proper measure of attorney
performance is reasonable under the
prevailing professional norms, and the
defendant must show that the representation
received fell below the objective standard of
reasonableness.[46] For the petition to
succeed, the strong presumption that the
counsels conduct falls within the wide range or
reasonable professional assistance must be
overcome.[47]
In the case at bar, it appears that in the middle
of the appeal, the petitioners counsel of
record, a certain Atty. Alfonso G. Salvador,
suddenly and inexplicably withdrew his
appearance as counsel, giving the sole
explanation that he was leaving for the United
States for an indefinite period of time by virtue
of a petition filed in his favor.[48] In the face of
this abandonment, petitioner made an
impassioned plea that his lawyer be prevented
from this withdrawal in a handwritten Urgent
Motion for Reconsideration and Opposition of
Counsels Withdrawal of Appearance with
Leave of Court received by this Court on
September 14, 1999.[49] Petitioner alleged
that his counsels withdrawal is an untimely and
heartbreaking event, considering that he had
placed all [his] trust and confidence on [his
counsels] unquestionable integrity and
dignity.[50]
While we are sympathetic to petitioners plight,
we do not, however, find that there was such
negligence committed by his earlier counsel
so as to amount to a denial of a constitutional
right. There is likewise no showing that the
proceedings were tainted with any other
jurisdictional defect.
In fine, we find that petitioner invokes the
remedy of the petition for a writ of habeas
WRITS TO SELF-INCRIMINATION ACJUCO 8
corpus to seek a re-examination of the records
of People v. de Villa, without asserting any
legal grounds therefor. For all intents and
purposes, petitioner seeks a reevaluation of
the evidentiary basis for his conviction. We are
being asked to reexamine the weight and
sufficiency of the evidence in this case, not on
its own, but in light of the new DNA evidence
that the petitioner seeks to present to this
Court. This relief is outside the scope of a
habeas corpus petition. The petition for
habeas corpus must, therefore, fail.
Coupled with the prayer for the issuance of a
writ of habeas corpus, petitioner seeks a new
trial to re-litigate the issue of the paternity of
the child Leahlyn Mendoza.
It must be stressed that the issue of Leahlyn
Mendozas paternity is not central to the issue
of petitioners guilt or innocence. The rape of
the victim Aileen Mendoza is an entirely
different question, separate and distinct from
the question of the father of her child.
Recently, in the case of People v. Alberio,[51]
we ruled that the fact or not of the victims
pregnancy and resultant childbirth are
irrelevant in determining whether or not she
was raped. Pregnancy is not an essential
element of the crime of rape. Whether the child
which the victim bore was fathered by the
purported rapist, or by some unknown
individual, is of no moment in determining an
individuals guilt.
In the instant case, however, we note that the
grant of child support to Leahlyn Mendoza
indicates that our Decision was based, at least
in small measure, on the victims claim that the
petitioner fathered her child. This claim was
given credence by the trial court, and, as a
finding of fact, was affirmed by this Court on
automatic review.
The fact of the childs paternity is now in issue,
centrally relevant to the civil award of child
support. It is only tangentially related to the
issue of petitioners guilt. However, if it can be
conclusively determined that the petitioner did
not sire Leahlyn Mendoza, this may cast the
shadow of reasonable doubt, and allow the
acquittal of the petitioner on this basis.
Be that as it may, it appears that the petitioner
once more relies upon erroneous legal

grounds in resorting to the remedy of a motion
for new trial. A motion for new trial, under the
Revised Rules of Criminal Procedure, is
available only for a limited period of time, and
for very limited grounds. Under Section 1, Rule
121, of the Revised Rules of Criminal
Procedure, a motion for new trial may be filed
at any time before a judgment of conviction
becomes final, that is, within fifteen (15) days
from its promulgation or notice. Upon finality of
the judgment, therefore, a motion for new trial
is no longer an available remedy. Section 2 of
Rule 121 enumerates the grounds for a new
trial:
SEC. 2. Grounds for a new trial.The court shall
grant a new trial on any of the following
grounds:
(a) That errors of law or irregularities
prejudicial to the substantial rights of the
accused have been committed during the trial;
(b) That new and material evidence has been
discovered which the accused could not with
reasonable diligence have discovered and
produced at the trial and which if introduced
and admitted would probably change the
judgment.
In the case at bar, petitioner anchors his plea
on the basis of purportedly newly-discovered
evidence, i.e., the DNA test subsequently
conducted, allegedly excluding petitioner from
the child purportedly fathered as a result of the
rape.
The decision sought to be reviewed in this
petition for the issuance of a writ of habeas
corpus has long attained finality, and entry of
judgment was made as far back as January
16, 2002. Moreover, upon an examination of
the evidence presented by the petitioner, we
do not find that the DNA evidence falls within
the statutory or jurisprudential definition of
newly- discovered evidence.
A motion for new trial based on newly-
discovered evidence may be granted only if
the following requisites are met: (a) that the
evidence was discovered after trial; (b) that
said evidence could not have been discovered
and produced at the trial even with the
exercise of reasonable diligence; (c) that it is
material, not merely cumulative, corroborative
WRITS TO SELF-INCRIMINATION ACJUCO 9
or impeaching; and (d) that the evidence is of
such weight that that, if admitted, it would
probably change the judgment.[52] It is
essential that the offering party exercised
reasonable diligence in seeking to locate the
evidence before or during trial but nonetheless
failed to secure it.[53]
In this instance, although the DNA evidence
was undoubtedly discovered after the trial, we
nonetheless find that it does not meet the
criteria for newly-discovered evidence that
would merit a new trial. Such evidence
disproving paternity could have been
discovered and produced at trial with the
exercise of reasonable diligence.
Petitioner-relators claim that he was unaware
of the existence of DNA testing until the trial
was concluded carries no weight with this
Court. Lack of knowledge of the existence of
DNA testing speaks of negligence, either on
the part of petitioner, or on the part of
petitioners counsel. In either instance,
however, this negligence is binding upon
petitioner. It is a settled rule that a party cannot
blame his counsel for negligence when he
himself was guilty of neglect.[54] A client is
bound by the acts of his counsel, including the
latters mistakes and negligence.[55] It is
likewise settled that relief will not be granted to
a party who seeks to be relieved from the
effects of the judgment when the loss of the
remedy at law was due to his own negligence,
or to a mistaken mode of procedure.[56]
Even with all of the compelling and persuasive
scientific evidence presented by petitioner and
his counsel, we are not convinced that
Reynaldo de Villa is entitled to outright
acquittal. As correctly pointed out by the
Solicitor General, even if it is conclusively
proven that Reynaldo de Villa is not the father
of Leahlyn Mendoza, his conviction could, in
theory, still stand, with Aileen Mendozas
testimony and positive identification as its
bases.[57] The Solicitor General reiterates,
and correctly so, that the pregnancy of the
victim has never been an element of the crime
of rape.[58] Therefore, the DNA evidence has
failed to conclusively prove to this Court that
Reynaldo de Villa should be discharged.
Although petitioner claims that conviction was
based solely on a finding of paternity of the
child Leahlyn, this is not the case. Our
 WRITS TO SELF-INCRIMINATION ACJUCO 10

conviction was based on the clear and

convincing testimonial evidence of the victim,
which, given credence by the trial court, was
affirmed on appeal.

WHEREFORE, in view of the foregoing, the

instant petition for habeas corpus and new trial
is DISMISSED for lack of merit.

No costs.

SO ORDERED.
 WRITS TO SELF-INCRIMINATION ACJUCO 11
WRIT OF AMPARO
G.R. No. 180906 October 7, 2008
THE SECRETARY OF NATIONAL
DEFENSE, THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, petitioners,
vs.
RAYMOND MANALO and REYNALDO
MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are
separated from the rest of the world behind
secret walls, they are not separated from the
constitutional protection of their basic rights.
The constitution is an overarching sky that
covers all in its protection. The case at bar
involves the rights to life, liberty and security in
the first petition for a writ of Amparo filed
before this Court.
This is an appeal via Petition for Review under
Rule 45 of the Rules of Court in relation to
Section 191 of the Rule on the Writ of Amparo,
seeking to reverse and set aside on both
questions of fact and law, the Decision
promulgated by the Court of Appeals in C.A.
G.R. AMPARO No. 00001, entitled "Raymond
Manalo and Reynaldo Manalo, petitioners,
versus The Secretary of National Defense, the
Chief of Staff, Armed Forces of the Philippines,
respondents."
This case was originally a Petition for
Prohibition, Injunction, and Temporary
Restraining Order (TRO)2 filed before this
Court by herein respondents (therein
petitioners) on August 23, 2007 to stop herein
petitioners (therein respondents) and/or their
officers and agents from depriving them of
their right to liberty and other basic rights.
Therein petitioners also sought ancillary
remedies, Protective Custody Orders,
Appointment of Commissioner, Inspection and
Access Orders, and all other legal and
equitable reliefs under Article VIII, Section
5(5)3 of the 1987 Constitution and Rule 135,
Section 6 of the Rules of Court. In our
Resolution dated August 24, 2007, we (1)
ordered the Secretary of the Department of
National Defense and the Chief of Staff of the
AFP, their agents, representatives, or persons
acting in their stead, including but not limited
to the Citizens Armed Forces Geographical
Unit (CAFGU) to submit their Comment; and
(2) enjoined them from causing the arrest of
therein petitioners, or otherwise restricting,
curtailing, abridging, or depriving them of their
right to life, liberty, and other basic rights as
guaranteed under Article III, Section 14 of the
1987 Constitution.5
While the August 23, 2007 Petition was
pending, the Rule on the Writ of Amparo took
effect on October 24, 2007. Forthwith, therein
petitioners filed a Manifestation and Omnibus
Motion to Treat Existing Petition as Amparo
Petition, to Admit Supporting Affidavits, and to
Grant Interim and Final Amparo Reliefs. They
prayed that: (1) the petition be considered a
Petition for the Writ of Amparo under Sec. 266
of the Amparo Rule; (2) the Court issue the writ
commanding therein respondents to make a
verified return within the period provided by
law and containing the specific matter required
by law; (3) they be granted the interim reliefs
allowed by the Amparo Rule and all other
reliefs prayed for in the petition but not covered
by the Amparo Rule; (4) the Court, after
hearing, render judgment as required in Sec.
187 of the Amparo Rule; and (5) all other just
and equitable reliefs.8
On October 25, 2007, the Court resolved to
treat the August 23, 2007 Petition as a petition
under the Amparo Rule and further resolved,
viz:
WHEREFORE, let a WRIT OF AMPARO be
issued to respondents requiring them to file
with the CA (Court of Appeals) a verified
written return within five (5) working days from
service of the writ. We REMAND the petition
to the CA and designate the Division of
Associate Justice Lucas P. Bersamin to
conduct the summary hearing on the petition
on November 8, 2007 at 2:00 p.m. and decide
the petition in accordance with the Rule on the
Writ of Amparo.9
On December 26, 2007, the Court of Appeals
rendered a decision in favor of therein
petitioners (herein respondents), the
dispositive portion of which reads, viz:
 WRITS TO SELF-INCRIMINATION ACJUCO 12
ACCORDINGLY, the PRIVILEGE OF THE
WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF
NATIONAL DEFENSE and AFP CHIEF OF
STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court
within five days from notice of this decision all
official and unofficial reports of the
investigation undertaken in connection with
their case, except those already on file herein;
2. To confirm in writing the present places of
official assignment of M/Sgt Hilario aka Rollie
Castillo and Donald Caigas within five days
from notice of this decision.
3. To cause to be produced to this Court all
medical reports, records and charts, reports of
any treatment given or recommended and
medicines prescribed, if any, to the petitioners,
to include a list of medical and (sic) personnel
(military and civilian) who attended to them
from February 14, 2006 until August 12, 2007
within five days from notice of this decision.
The compliance with this decision shall be
made under the signature and oath of
respondent AFP Chief of Staff or his duly
authorized deputy, the latter's authority to be
express and made apparent on the face of the
sworn compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal,
we first unfurl the facts as alleged by herein
respondents:
Respondent Raymond Manalo recounted that
about one or two weeks before February 14,
2006, several uniformed and armed soldiers
and members of the CAFGU summoned to a
meeting all the residents of their barangay in
San Idelfonso, Bulacan. Respondents were
not able to attend as they were not informed of
the gathering, but Raymond saw some of the
soldiers when he passed by the barangay
hall.11
On February 14, 2006, Raymond was sleeping
in their house in Buhol na Mangga, San
Ildefonso, Bulacan. At past noon, several
armed soldiers wearing white shirts, fatigue
pants and army boots, entered their house and
roused him. They asked him if he was Bestre,
but his mother, Ester Manalo, replied that he
was Raymond, not Bestre. The armed soldier
slapped him on both cheeks and nudged him
in the stomach. He was then handcuffed,
brought to the rear of his house, and forced to
the ground face down. He was kicked on the
hip, ordered to stand and face up to the light,
then forcibly brought near the road. He told his
mother to follow him, but three soldiers
stopped her and told her to stay.12
Among the men who came to take him,
Raymond recognized brothers Michael de la
Cruz, Madning de la Cruz, "Puti" de la Cruz,
and "Pula" de la Cruz, who all acted as
lookout. They were all members of the CAFGU
and residing in Manuzon, San Ildefonso,
Bulacan. He also recognized brothers Randy
Mendoza and Rudy Mendoza, also members
of the CAFGU. While he was being forcibly
taken, he also saw outside of his house two
barangay councilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and
armed men.13
The men forced Raymond into a white L300
van. Once inside, he was blindfolded. Before
being blindfolded, he saw the faces of the
soldiers who took him. Later, in his 18 months
of captivity, he learned their names. The one
who drove the van was Rizal Hilario alias
Rollie Castillo, whom he estimated was about
40 years of age or older. The leader of the
team who entered his house and abducted
him was "Ganata." He was tall, thin, curly-
haired and a bit old. Another one of his
abductors was "George" who was tall, thin,
white-skinned and about 30 years old.14
The van drove off, then came to a stop. A
person was brought inside the van and made
to sit beside Raymond. Both of them were
beaten up. On the road, he recognized the
voice of the person beside him as his brother
Reynaldo's. The van stopped several times
until they finally arrived at a house. Raymond
and Reynaldo were each brought to a different
room. With the doors of their rooms left open,
Raymond saw several soldiers continuously
hitting his brother Reynaldo on the head and
other parts of his body with the butt of their
guns for about 15 minutes. After which,
Reynaldo was brought to his (Raymond's)
 WRITS TO SELF-INCRIMINATION ACJUCO 13
room and it was his (Raymond's) turn to be
beaten up in the other room. The soldiers
asked him if he was a member of the New
People's Army. Each time he said he was not,
he was hit with the butt of their guns. He was
questioned where his comrades were, how
many soldiers he had killed, and how many
NPA members he had helped. Each time he
answered none, they hit him.15
In the next days, Raymond's interrogators
appeared to be high officials as the soldiers
who beat him up would salute them, call them
"sir," and treat them with respect. He was in
blindfolds when interrogated by the high
officials, but he saw their faces when they
arrived and before the blindfold was put on. He
noticed that the uniform of the high officials
was different from those of the other soldiers.
One of those officials was tall and thin, wore
white pants, tie, and leather shoes, instead of
combat boots. He spoke in Tagalog and knew
much about his parents and family, and a
habeas corpus case filed in connection with
the respondents' abduction.16 While these
officials interrogated him, Raymond was not
manhandled. But once they had left, the
soldier guards beat him up. When the guards
got drunk, they also manhandled respondents.
During this time, Raymond was fed only at
night, usually with left-over and rotten food.17
On the third week of respondents' detention,
two men arrived while Raymond was sleeping
and beat him up. They doused him with urine
and hot water, hit his stomach with a piece of
wood, slapped his forehead twice with a .45
pistol, punched him on the mouth, and burnt
some parts of his body with a burning wood.
When he could no longer endure the torture
and could hardly breathe, they stopped. They
then subjected Reynaldo to the same ordeal in
another room. Before their torturers left, they
warned Raymond that they would come back
the next day and kill him.18
The following night, Raymond attempted to
escape. He waited for the guards to get drunk,
then made noise with the chains put on him to
see if they were still awake. When none of
them came to check on him, he managed to
free his hand from the chains and jumped
through the window. He passed through a
helipad and firing range and stopped near a
fishpond where he used stones to break his
chains. After walking through a forested area,
he came near a river and an Iglesia ni Kristo
church. He talked to some women who were
doing the laundry, asked where he was and
the road to Gapan. He was told that he was in
Fort Magsaysay.19 He reached the highway,
but some soldiers spotted him, forcing him to
run away. The soldiers chased him and caught
up with him. They brought him to another place
near the entrance of what he saw was Fort
Magsaysay. He was boxed repeatedly, kicked,
and hit with chains until his back bled. They
poured gasoline on him. Then a so-called
"Mam" or "Madam" suddenly called, saying
that she wanted to see Raymond before he
was killed. The soldiers ceased the torture and
he was returned inside Fort Magsaysay where
Reynaldo was detained.20
For some weeks, the respondents had a
respite from all the torture. Their wounds were
treated. When the wounds were almost
healed, the torture resumed, particularly when
respondents' guards got drunk.21
Raymond recalled that sometime in April until
May 2006, he was detained in a room
enclosed by steel bars. He stayed all the time
in that small room measuring 1 x 2 meters, and
did everything there, including urinating,
removing his bowels, bathing, eating and
sleeping. He counted that eighteen people22
had been detained in that bartolina, including
his brother Reynaldo and himself.23
For about three and a half months, the
respondents were detained in Fort
Magsaysay. They were kept in a small house
with two rooms and a kitchen. One room was
made into the bartolina. The house was near
the firing range, helipad and mango trees. At
dawn, soldiers marched by their house. They
were also sometimes detained in what he only
knew as the "DTU."24
At the DTU, a male doctor came to examine
respondents. He checked their body and eyes,
took their urine samples and marked them.
When asked how they were feeling, they
replied that they had a hard time urinating,
their stomachs were aching, and they felt other
pains in their body. The next day, two ladies in
white arrived. They also examined
respondents and gave them medicines,
including orasol, amoxicillin and mefenamic
 WRITS TO SELF-INCRIMINATION ACJUCO 14
acid. They brought with them the results of
respondents' urine test and advised them to
drink plenty of water and take their medicine.
The two ladies returned a few more times.
Thereafter, medicines were sent through the
"master" of the DTU, "Master" Del Rosario
alias Carinyoso at Puti. Respondents were
kept in the DTU for about two weeks. While
there, he met a soldier named Efren who said
that Gen. Palparan ordered him to monitor and
take care of them.25
One day, Rizal Hilario fetched respondents in
a Revo vehicle. They, along with Efren and
several other armed men wearing fatigue
suits, went to a detachment in Pinaud, San
Ildefonso, Bulacan. Respondents were
detained for one or two weeks in a big two-
storey house. Hilario and Efren stayed with
them. While there, Raymond was beaten up by
Hilario's men.26
From Pinaud, Hilario and Efren brought
respondents to Sapang, San Miguel, Bulacan
on board the Revo. They were detained in a
big unfinished house inside the compound of
"Kapitan" for about three months. When they
arrived in Sapang, Gen. Palparan talked to
them. They were brought out of the house to a
basketball court in the center of the compound
and made to sit. Gen. Palparan was already
waiting, seated. He was about two arms'
length away from respondents. He began by
asking if respondents felt well already, to
which Raymond replied in the affirmative. He
asked Raymond if he knew him. Raymond lied
that he did not. He then asked Raymond if he
would be scared if he were made to face Gen.
Palparan. Raymond responded that he would
not be because he did not believe that Gen.
Palparan was an evil man.27
Raymond narrated his conversation with Gen.
Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na
kaharap mo na ako, di ka ba natatakot sa
akin?"
Sumagot akong, "Siyempre po, natatakot
din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo
ng isang pagkakataon na mabuhay, basta't
sundin n'yo ang lahat ng sasabihin ko...
sabihin mo sa magulang mo - huwag pumunta
sa mga rali, sa hearing, sa Karapatan at sa
Human Right dahil niloloko lang kayo. Sabihin
sa magulang at lahat sa bahay na huwag
paloko doon. Tulungan kami na kausapin si
Bestre na sumuko na sa gobyerno."28
Respondents agreed to do as Gen. Palparan
told them as they felt they could not do
otherwise. At about 3:00 in the morning,
Hilario, Efren and the former's men - the same
group that abducted them - brought them to
their parents' house. Raymond was shown to
his parents while Reynaldo stayed in the Revo
because he still could not walk. In the
presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen.
Palparan told him. As they were afraid,
Raymond's parents acceded. Hilario
threatened Raymond's parents that if they
continued to join human rights rallies, they
would never see their children again. The
respondents were then brought back to
Sapang.29
When respondents arrived back in Sapang,
Gen. Palparan was about to leave. He was
talking with the four "masters" who were there:
Arman, Ganata, Hilario and Cabalse.30 When
Gen. Palparan saw Raymond, he called for
him. He was in a big white vehicle. Raymond
stood outside the vehicle as Gen. Palparan
told him to gain back his strength and be
healthy and to take the medicine he left for him
and Reynaldo. He said the medicine was
expensive at Php35.00 each, and would make
them strong. He also said that they should
prove that they are on the side of the military
and warned that they would not be given
another chance.31 During his testimony,
Raymond identified Gen. Palparan by his
picture.32
One of the soldiers named Arman made
Raymond take the medicine left by Gen.
Palparan. The medicine, named "Alive," was
green and yellow. Raymond and Reynaldo
were each given a box of this medicine and
instructed to take one capsule a day. Arman
checked if they were getting their dose of the
medicine. The "Alive" made them sleep each
time they took it, and they felt heavy upon
waking up.33
 WRITS TO SELF-INCRIMINATION ACJUCO 15
After a few days, Hilario arrived again. He took
Reynaldo and left Raymond at Sapang. Arman
instructed Raymond that while in Sapang, he
should introduce himself as "Oscar," a military
trainee from Sariaya, Quezon, assigned in
Bulacan. While there, he saw again Ganata,
one of the men who abducted him from his
house, and got acquainted with other military
men and civilians.34
After about three months in Sapang, Raymond
was brought to Camp Tecson under the 24th
Infantry Battalion. He was fetched by three
unidentified men in a big white vehicle. Efren
went with them. Raymond was then
blindfolded. After a 30-minute ride, his
blindfold was removed. Chains were put on
him and he was kept in the barracks.35
The next day, Raymond's chains were
removed and he was ordered to clean outside
the barracks. It was then he learned that he
was in a detachment of the Rangers. There
were many soldiers, hundreds of them were
training. He was also ordered to clean inside
the barracks. In one of the rooms therein, he
met Sherlyn Cadapan from Laguna. She told
him that she was a student of the University of
the Philippines and was abducted in Hagonoy,
Bulacan. She confided that she had been
subjected to severe torture and raped. She
was crying and longing to go home and be with
her parents. During the day, her chains were
removed and she was made to do the
laundry.36
After a week, Reynaldo was also brought to
Camp Tecson. Two days from his arrival, two
other captives, Karen Empeño and Manuel
Merino, arrived. Karen and Manuel were put in
the room with "Allan" whose name they later
came to know as Donald Caigas, called
"master" or "commander" by his men in the
24th Infantry Battalion. Raymond and
Reynaldo were put in the adjoining room. At
times, Raymond and Reynaldo were
threatened, and Reynaldo was beaten up. In
the daytime, their chains were removed, but
were put back on at night. They were
threatened that if they escaped, their families
would all be killed.37
On or about October 6, 2006, Hilario arrived in
Camp Tecson. He told the detainees that they
should be thankful they were still alive and
should continue along their "renewed life."
Before the hearing of November 6 or 8, 2006,
respondents were brought to their parents to
instruct them not to attend the hearing.
However, their parents had already left for
Manila. Respondents were brought back to
Camp Tecson. They stayed in that camp from
September 2006 to November 2006, and
Raymond was instructed to continue using the
name "Oscar" and holding himself out as a
military trainee. He got acquainted with
soldiers of the 24th Infantry Battalion whose
names and descriptions he stated in his
affidavit.38
On November 22, 2006, respondents, along
with Sherlyn, Karen, and Manuel, were
transferred to a camp of the 24th Infantry
Battalion in Limay, Bataan. There were many
huts in the camp. They stayed in that camp
until May 8, 2007. Some soldiers of the
battalion stayed with them. While there,
battalion soldiers whom Raymond knew as
"Mar" and "Billy" beat him up and hit him in the
stomach with their guns. Sherlyn and Karen
also suffered enormous torture in the camp.
They were all made to clean, cook, and help in
raising livestock.39
Raymond recalled that when "Operation
Lubog" was launched, Caigas and some other
soldiers brought him and Manuel with them to
take and kill all sympathizers of the NPA. They
were brought to Barangay Bayan-bayanan,
Bataan where he witnessed the killing of an old
man doing kaingin. The soldiers said he was
killed because he had a son who was a
member of the NPA and he coddled NPA
members in his house.40 Another time, in
another "Operation Lubog," Raymond was
brought to Barangay Orion in a house where
NPA men stayed. When they arrived, only the
old man of the house who was sick was there.
They spared him and killed only his son right
before Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn,
Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea.
Caigas and some of his men stayed with them.
A retired army soldier was in charge of the
house. Like in Limay, the five detainees were
made to do errands and chores. They stayed
in Zambales from May 8 or 9, 2007 until June
2007.42
 WRITS TO SELF-INCRIMINATION ACJUCO 16
In June 2007, Caigas brought the five back to
the camp in Limay. Raymond, Reynaldo, and
Manuel were tasked to bring food to detainees
brought to the camp. Raymond narrated what
he witnessed and experienced in the camp,
viz:
Isang gabi, sinabihan kami ni Donald (Caigas)
na matulog na kami. Nakita ko si Donald na
inaayos ang kanyang baril, at nilagyan ng
silenser. Sabi ni Donald na kung mayroon man
kaming makita o marinig, walang nangyari.
Kinaumagahan, nakita naming ang bangkay
ng isa sa mga bihag na dinala sa kampo.
Mayroong binuhos sa kanyang katawan at
ito'y sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay
and ibinaba ng mga unipormadong sundalo
mula sa 6 x 6 na trak at dinala sa loob ng
kampo. May naiwang mga bakas ng dugo
habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may
dinukot sila na dalawang Ita. Itinali sila sa
labas ng kubo, piniringan, ikinadena at labis
na binugbog. Nakita kong nakatakas ang isa
sa kanila at binaril siya ng sundalo ngunit hindi
siya tinamaan. Iyong gabi nakita kong pinatay
nila iyong isang Ita malapit sa Post 3; sinilaban
ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay
ang dinala sa kampo. Ibinaba ang mga
bangkay mula sa pick up trak, dinala ang mga
bangkay sa labas ng bakod. Kinaumagahan
nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at
1 kasama niya. Pinakain ko sila. Sabi nila sa
akin na dinukot sila sa Bataan. Iyong gabi,
inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw,
nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel,
wala siyang suot pang-itaas, pinosasan.
Nilakasan ng mga sundalo ang tunog na
galing sa istiryo ng sasakyan. Di nagtagal,
narinig ko ang hiyaw o ungol ni Manuel.
Sumilip ako sa isang haligi ng kamalig at
nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami.
Tinanggal ang mga kadena mga 3 o 4 na araw
pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa
ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami
ni Donald. Tinanong kami kung ano ang sabi
ni Manuel sa amin. Sabi ni Donald huwag na
raw naming hanapin ang dalawang babae at
si Manuel, dahil magkakasama na yung tatlo.
Sabi pa ni Donald na kami ni Reynaldo ay
magbagong buhay at ituloy namin ni Reynaldo
ang trabaho. Sa gabi, hindi na kami
kinakadena.43
On or about June 13, 2007, Raymond and
Reynaldo were brought to Pangasinan,
ostensibly to raise poultry for Donald (Caigas).
Caigas told respondents to also farm his land,
in exchange for which, he would take care of
the food of their family. They were also told
that they could farm a small plot adjoining his
land and sell their produce. They were no
longer put in chains and were instructed to use
the names Rommel (for Raymond) and Rod
(for Reynaldo) and represent themselves as
cousins from Rizal, Laguna.44
Respondents started to plan their escape.
They could see the highway from where they
stayed. They helped farm adjoining lands for
which they were paid Php200.00 or
Php400.00 and they saved their earnings.
When they had saved Php1,000.00 each,
Raymond asked a neighbor how he could get
a cellular phone as he wanted to exchange
text messages with a girl who lived nearby. A
phone was pawned to him, but he kept it first
and did not use it. They earned some more
until they had saved Php1,400.00 between
them.
There were four houses in the compound.
Raymond and Reynaldo were housed in one
of them while their guards lived in the other
three. Caigas entrusted respondents to
Nonong, the head of the guards. Respondents'
house did not have electricity. They used a
lamp. There was no television, but they had a
radio. In the evening of August 13, 2007,
Nonong and his cohorts had a drinking
 WRITS TO SELF-INCRIMINATION ACJUCO 17
session. At about 1:00 a.m., Raymond turned
up the volume of the radio. When none of the
guards awoke and took notice, Raymond and
Reynaldo proceeded towards the highway,
leaving behind their sleeping guards and
barking dogs. They boarded a bus bound for
Manila and were thus freed from captivity.45
Reynaldo also executed an affidavit affirming
the contents of Raymond's affidavit insofar as
they related to matters they witnessed
together. Reynaldo added that when they
were taken from their house on February 14,
2006, he saw the faces of his abductors before
he was blindfolded with his shirt. He also
named the soldiers he got acquainted with in
the 18 months he was detained. When
Raymond attempted to escape from Fort
Magsaysay, Reynaldo was severely beaten up
and told that they were indeed members of the
NPA because Raymond escaped. With a .45
caliber pistol, Reynaldo was hit on the back
and punched in the face until he could no
longer bear the pain.
At one point during their detention, when
Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and
brought to Pinaud by Rizal Hilario. He was
kept in the house of Kapitan, a friend of Hilario,
in a mountainous area. He was instructed to
use the name "Rodel" and to represent himself
as a military trainee from Meycauayan,
Bulacan. Sometimes, Hilario brought along
Reynaldo in his trips. One time, he was
brought to a market in San Jose, del Monte,
Bulacan and made to wait in the vehicle while
Hilario was buying. He was also brought to
Tondo, Manila where Hilario delivered boxes
of "Alive" in different houses. In these trips,
Hilario drove a black and red vehicle.
Reynaldo was blindfolded while still in
Bulacan, but allowed to remove the blindfold
once outside the province. In one of their trips,
they passed by Fort Magsaysay and Camp
Tecson where Reynaldo saw the sign board,
"Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the
accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in
forensic medicine and was connected with the
Medical Action Group, an organization
handling cases of human rights violations,
particularly cases where torture was involved.
He was requested by an NGO to conduct
medical examinations on the respondents
after their escape. He first asked them about
their ordeal, then proceeded with the physical
examination. His findings showed that the
scars borne by respondents were consistent
with their account of physical injuries inflicted
upon them. The examination was conducted
on August 15, 2007, two days after
respondents' escape, and the results thereof
were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he
followed the Istanbul Protocol in conducting
the examination.47
Petitioners dispute respondents' account of
their alleged abduction and torture. In
compliance with the October 25, 2007
Resolution of the Court, they filed a Return of
the Writ of Amparo admitting the abduction but
denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo
Manalo were not at any time arrested, forcibly
abducted, detained, held incommunicado,
disappeared or under the custody by the
military. This is a settled issue laid to rest in the
habeas corpus case filed in their behalf by
petitioners' parents before the Court of
Appeals in C.A.-G.R. SP No. 94431 against
M/Sgt. Rizal Hilario aka Rollie Castillo, as
head of the 24th Infantry Battalion; Maj. Gen.
Jovito Palparan, as Commander of the 7th
Infantry Division in Luzon; Lt. Gen.
Hermogenes Esperon, in his capacity as the
Commanding General of the Philippine Army,
and members of the Citizens Armed Forces
Geographical Unit (CAFGU), namely: Michael
dela Cruz, Puti dela Cruz, Madning dela Cruz,
Pula dela Cruz, Randy Mendoza and Rudy
Mendoza. The respondents therein submitted
a return of the writ... On July 4, 2006, the Court
of Appeals dropped as party respondents Lt.
Gen. Hermogenes C. Esperon, Jr., then
Commanding General of the Philippine Army,
and on September 19, 2006, Maj. (sic) Jovito
S. Palparan, then Commanding General, 7th
Infantry Division, Philippine Army, stationed at
Fort Magsaysay, Palayan City, Nueva Ecija,
upon a finding that no evidence was
introduced to establish their personal
involvement in the taking of the Manalo
brothers. In a Decision dated June 27, 2007...,
it exonerated M/Sgt. Rizal Hilario aka Rollie
Castillo for lack of evidence establishing his
 WRITS TO SELF-INCRIMINATION ACJUCO 18
involvement in any capacity in the
disappearance of the Manalo brothers,
although it held that the remaining
respondents were illegally detaining the
Manalo brothers and ordered them to release
the latter.48
Attached to the Return of the Writ was the
affidavit of therein respondent (herein
petitioner) Secretary of National Defense,
which attested that he assumed office only on
August 8, 2007 and was thus unaware of the
Manalo brothers' alleged abduction. He also
claimed that:
7. The Secretary of National Defense does not
engage in actual military directional
operations, neither does he undertake
command directions of the AFP units in the
field, nor in any way micromanage the AFP
operations. The principal responsibility of the
Secretary of National Defense is focused in
providing strategic policy direction to the
Department (bureaus and agencies) including
the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo
issued by the Honorable Supreme Court in this
case, I have directed the Chief of Staff, AFP to
institute immediate action in compliance with
Section 9(d) of the Amparo Rule and to submit
report of such compliance... Likewise, in a
Memorandum Directive also dated October
31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the
AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a
competent court against any members of the
AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related
to the death or disappearance of the person
identified in the petition which may aid in the
prosecution of the person or persons
responsible;
(3) to identify witnesses and obtain statements
from them concerning the death or
disappearance;
(4) to determine the cause, manner, location
and time of death or disappearance as well as
any pattern or practice that may have brought
about the death or disappearance;
(5) to identify and apprehend the person or
persons involved in the death or
disappearance; and
(6) to bring the suspected offenders before a
competent court.49
Therein respondent AFP Chief of Staff also
submitted his own affidavit, attached to the
Return of the Writ, attesting that he received
the above directive of therein respondent
Secretary of National Defense and that acting
on this directive, he did the following:
3.1. As currently designated Chief of Staff,
Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the
AFP for the purpose of establishing the
circumstances of the alleged disappearance
and the recent reappearance of the
petitioners.
3.2. I have caused the immediate investigation
and submission of the result thereof to Higher
headquarters and/or direct the immediate
conduct of the investigation on the matter by
the concerned unit/s, dispatching Radio
Message on November 05, 2007, addressed
to the Commanding General, Philippine Army
(Info: COMNOLCOM, CG, 71D PA and CO 24
IB PA). A Copy of the Radio Message is
attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the
investigations conducted or to be conducted
by the concerned unit relative to the
circumstances of the alleged disappearance of
the persons in whose favor the Writ of Amparo
has been sought for as soon as the same has
been furnished Higher headquarters.
3.4. A parallel investigation has been directed
to the same units relative to another Petition
for the Writ of Amparo (G.R. No. 179994) filed
at the instance of relatives of a certain
Cadapan and Empeño pending before the
Supreme Court.
3.5. On the part of the Armed Forces, this
respondent will exert earnest efforts to
establish the surrounding circumstances of the
disappearances of the petitioners and to bring
 WRITS TO SELF-INCRIMINATION ACJUCO 19
those responsible, including any military
personnel if shown to have participated or had
complicity in the commission of the
complained acts, to the bar of justice, when
warranted by the findings and the competent
evidence that may be gathered in the
process.50
Also attached to the Return of the Writ was the
affidavit of Lt. Col. Felipe Anontado, INF
(GSC) PA, earlier filed in G.R. No. 179994,
another Amparo case in this Court, involving
Cadapan, Empeño and Merino, which averred
among others, viz:
10) Upon reading the allegations in the
Petition implicating the 24th Infantry Batallion
detachment as detention area, I immediately
went to the 24th IB detachment in Limay,
Bataan and found no untoward incidents in the
area nor any detainees by the name of Sherlyn
Cadapan, Karen Empeño and Manuel Merino
being held captive;
11) There was neither any reports of any death
of Manuel Merino in the 24th IB in Limay,
Bataan;
12) After going to the 24th IB in Limay, Bataan,
we made further inquiries with the Philippine
National Police, Limay, Bataan regarding the
alleged detentions or deaths and were
informed that none was reported to their good
office;
13) I also directed Company Commander 1st
Lt. Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to
be a detention place where Sherlyn Cadapan,
Karen Empeño and Manuel Merino were
detained. As per the inquiry, however, no such
beachhouse was used as a detention place
found to have been used by armed men to
detain Cadapan, Empeño and Merino.51
It was explained in the Return of the Writ that
for lack of sufficient time, the affidavits of Maj.
Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal
Hilario aka Rollie Castillo, and other persons
implicated by therein petitioners could not be
secured in time for the submission of the
Return and would be subsequently
submitted.52
Herein petitioners presented a lone witness in
the summary hearings, Lt. Col. Ruben U.
Jimenez, Provost Marshall, 7th Infantry
Division, Philippine Army, based in Fort
Magsaysay, Palayan City, Nueva Ecija. The
territorial jurisdiction of this Division covers
Nueva Ecija, Aurora, Bataan, Bulacan,
Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is
part of the 7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was
directed by the Commanding General of the
7th Infantry Division, Maj. Gen. Jovito
Palaran,55 through his Assistant Chief of
Staff,56 to investigate the alleged abduction of
the respondents by CAFGU auxiliaries under
his unit, namely: CAA Michael de la Cruz; CAA
Roman de la Cruz, aka Puti; CAA Maximo de
la Cruz, aka Pula; CAA Randy Mendoza; ex-
CAA Marcelo de la Cruz aka Madning; and a
civilian named Rudy Mendoza. He was
directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo
by the alleged elements of the CAFGU
auxiliaries; and (2) the administrative liability of
said auxiliaries, if any.57 Jimenez testified that
this particular investigation was initiated not by
a complaint as was the usual procedure, but
because the Commanding General saw news
about the abduction of the Manalo brothers on
the television, and he was concerned about
what was happening within his territorial
jurisdiction.58
Jimenez summoned all six implicated persons
for the purpose of having them execute sworn
statements and conducting an investigation on
May 29, 2006.59 The investigation started at
8:00 in the morning and finished at 10:00 in the
evening.60 The investigating officer, Technical
Sgt. Eduardo Lingad, took the individual sworn
statements of all six persons on that day.
There were no other sworn statements taken,
not even of the Manalo family, nor were there
other witnesses summoned and
investigated61 as according to Jimenez, the
directive to him was only to investigate the six
persons.62
Jimenez was beside Lingad when the latter
took the statements.63 The six persons were
not known to Jimenez as it was in fact his first
time to meet them.64 During the entire time
that he was beside Lingad, a subordinate of
 WRITS TO SELF-INCRIMINATION ACJUCO 20
his in the Office of the Provost Marshall,
Jimenez did not propound a single question to
the six persons.65
Jimenez testified that all six statements were
taken on May 29, 2006, but Marcelo Mendoza
and Rudy Mendoza had to come back the next
day to sign their statements as the printing of
their statements was interrupted by a power
failure. Jimenez testified that the two signed on
May 30, 2006, but the jurats of their
statements indicated that they were signed on
May 29, 2006.66 When the Sworn Statements
were turned over to Jimenez, he personally
wrote his investigation report. He began
writing it in the afternoon of May 30, 2006 and
finished it on June 1, 2006.67 He then gave his
report to the Office of the Chief of
Personnel.68
As petitioners largely rely on Jimenez's
Investigation Report dated June 1, 2006 for
their evidence, the report is herein
substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND
MANALO and REYNALDO MANALO who
were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on 14 February 2006 by
unidentified armed men and thereafter were
forcibly disappeared. After the said incident,
relatives of the victims filed a case for
Abduction in the civil court against the herein
suspects: Michael dela Cruz, Madning dela
Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy
Mendoza and Rudy Mendoza as alleged
members of the Citizen Armed Forces
Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela
Cruz, aka Pula dated 29 May 2006 in (Exhibit
"B") states that he was at Sitio Mozon, Brgy.
Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church located
nearby his residence, together with some
neighbor thereat. He claims that on 15
February 2006, he was being informed by
Brgy. Kagawad Pablo Umayan about the
abduction of the brothers Raymond and
Reynaldo Manalo. As to the allegation that he
was one of the suspects, he claims that they
only implicated him because he was a CAFGU
and that they claimed that those who abducted
the Manalo brothers are members of the
Military and CAFGU. Subject vehemently
denied any participation or involvement on the
abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz
y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit "C") states that he is a resident of Sitio
Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member based
at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that Raymond and
Reynaldo Manalo being his neighbors are
active members/sympathizers of the
CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an
NPA Leader operating in their province. That
at the time of the alleged abduction of the two
(2) brothers and for accusing him to be one of
the suspects, he claims that on February 14,
2006, he was one of those working at the
concrete chapel being constructed nearby his
residence. He claims further that he just came
only to know about the incident on other day
(15 Feb 06) when he was being informed by
Kagawad Pablo Kunanan. That subject CAA
vehemently denied any participation about the
incident and claimed that they only implicated
him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y
Lingas dated 29 May 2006 in (Exhibit "O")
states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a
member of CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was
very much aware about the background of the
two (2) brothers Raymond and Reynaldo as
active supporters of the CPP NPA in their
Brgy. and he also knew their elder brother
"KUMANDER BESTRE" TN: Rolando Manalo.
Being one of the accused, he claims that on 14
February 2006, he was at Brgy. Magmarate,
San Miguel, Bulacan in the house of his aunt
and he learned only about the incident when
he arrived home in their place. He claims
further that the only reason why they
implicated him was due to the fact that his
mother has filed a criminal charge against their
brother Rolando Manalo @ KA BESTRE who
is an NPA Commander who killed his father
and for that reason they implicated him in
support of their brother. Subject CAA
 WRITS TO SELF-INCRIMINATION ACJUCO 21
vehemently denied any involvement on the
abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y
Lingasa dated May 29, 2006 in (Exhibit "E")
states that he is a resident of Brgy. Marungko,
Angat, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being his
barriomate when he was still unmarried and he
knew them since childhood. Being one of the
accused, he claims that on 14 February 2006,
he was at his residence in Brgy. Marungko,
Angat, Bulacan. He claims that he was being
informed only about the incident lately and he
was not aware of any reason why the two (2)
brothers were being abducted by alleged
members of the military and CAFGU. The only
reason he knows why they implicated him was
because there are those people who are angry
with their family particularly victims of
summary execution (killing) done by their
brother @ KA Bestre Rolando Manalo who is
an NPA leader. He claims further that it was
their brother @ KA BESTRE who killed his
father and he was living witness to that
incident. Subject civilian vehemently denied
any involvement on the abduction of the
Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala
Cruz dated 29 May 2006 in (Exhibit "F") states
that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, a
farmer and a former CAA based at Biak na
Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar to
him being their barrio mate. He claims further
that they are active supporters of CPP/NPA
and that their brother Rolando Manalo @ KA
BESTRE is an NPA leader. Being one of the
accused, he claims that on 14 February 2006,
he was in his residence at Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan.
That he vehemently denied any participation
of the alleged abduction of the two (2) brothers
and learned only about the incident when
rumors reached him by his barrio mates. He
claims that his implication is merely fabricated
because of his relationship to Roman and
Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y
Faustino dated 29 May 2006 in (Exhibit "G")
states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, the Chief of Brgy. Tanod and a
CAFGU member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims
that he knew very well the brothers Raymond
and Reynaldo Manalo in their barangay for
having been the Tanod Chief for twenty (20)
years. He alleged further that they are active
supporters or sympathizers of the CPP/NPA
and whose elder brother Rolando Manalo @
KA BESTRE is an NPA leader operating within
the area. Being one of the accused, he claims
that on 14 Feb 2006 he was helping in the
construction of their concrete chapel in their
place and he learned only about the incident
which is the abduction of Raymond and
Reynaldo Manalo when one of the Brgy.
Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims
further that he is truly innocent of the allegation
against him as being one of the abductors and
he considers everything fabricated in order to
destroy his name that remains loyal to his
service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of
respondents in this particular case, the proof
of linking them to the alleged abduction and
disappearance of Raymond and Reynaldo
Manalo that transpired on 14 February 2006 at
Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, is unsubstantiated. Their
alleged involvement theretofore to that
incident is considered doubtful, hence, no
basis to indict them as charged in this
investigation.
Though there are previous grudges between
each families (sic) in the past to quote: the
killing of the father of Randy and Rudy
Mendoza by @ KA BESTRE TN: Rolando
Manalo, this will not suffice to establish a fact
that they were the ones who did the abduction
as a form of revenge. As it was also stated in
the testimony of other accused claiming that
the Manalos are active
sympathizers/supporters of the CPP/NPA, this
would not also mean, however, that in the first
place, they were in connivance with the
abductors. Being their neighbors and as
members of CAFGU's, they ought to be
vigilant in protecting their village from any
intervention by the leftist group, hence inside
their village, they were fully aware of the
 WRITS TO SELF-INCRIMINATION ACJUCO 22
activities of Raymond and Reynaldo Manalo in
so far as their connection with the CPP/NPA is
concerned.
V. CONCLUSION
6. Premises considered surrounding this case
shows that the alleged charges of abduction
committed by the above named respondents
has not been established in this investigation.
Hence, it lacks merit to indict them for any
administrative punishment and/or criminal
liability. It is therefore concluded that they are
innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F.
Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F. Dela
Cruz and Rudy L. Mendoza be exonerated
from the case.
8. Upon approval, this case can be dropped
and closed.69
In this appeal under Rule 45, petitioners
question the appellate court's assessment of
the foregoing evidence and assail the
December 26, 2007 Decision on the following
grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY
AND GRIEVOUSLY ERRED IN BELIEVING
AND GIVING FULL FAITH AND CREDIT TO
THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY
SCRIPTED, REHEARSED AND SELF-
SERVING AFFIDAVIT/TESTIMONY OF
HEREIN RESPONDENT RAYMOND
MANALO.
II.
THE COURT OF APPEALS SERIOUSLY
AND GRIEVOUSLY ERRED IN REQUIRING
RESPONDENTS (HEREIN PETITIONERS)
TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF
APPEALS ALL OFFICIAL AND UNOFFICIAL
REPORTS OF THE INVESTIGATION
UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN
FILE WITH THE COURT; (B) CONFIRM IN
WRITING THE PRESENT PLACES OF
OFFICIAL ASSIGNMENT OF M/SGT.
HILARIO aka ROLLIE CASTILLO AND
DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS
ALL MEDICAL REPORTS, RECORDS AND
CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED
AND MEDICINES PRESCRIBED, IF ANY, TO
THE MANALO BROTHERS, TO INCLUDE A
LIST OF MEDICAL PERSONNEL (MILITARY
AND CIVILIAN) WHO ATTENDED TO THEM
FROM FEBRUARY 14, 2006 UNTIL AUGUST
12, 2007.70
The case at bar is the first decision on the
application of the Rule on the Writ of Amparo
(Amparo Rule). Let us hearken to its
beginning.
The adoption of the Amparo Rule surfaced as
a recurring proposition in the
recommendations that resulted from a two-day
National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances
sponsored by the Court on July 16-17, 2007.
The Summit was "envisioned to provide a
broad and fact-based perspective on the issue
of extrajudicial killings and enforced
disappearances,"71 hence "representatives
from all sides of the political and social
spectrum, as well as all the stakeholders in the
justice system"72 participated in mapping out
ways to resolve the crisis.
On October 24, 2007, the Court promulgated
the Amparo Rule "in light of the prevalence of
extralegal killing and enforced
disappearances."73 It was an exercise for the
first time of the Court's expanded power to
promulgate rules to protect our people's
constitutional rights, which made its maiden
appearance in the 1987 Constitution in
response to the Filipino experience of the
martial law regime.74 As the Amparo Rule was
intended to address the intractable problem of
"extralegal killings" and "enforced
disappearances," its coverage, in its present
form, is confined to these two instances or to
threats thereof. "Extralegal killings" are
"killings committed without due process of law,
i.e., without legal safeguards or judicial
proceedings."75 On the other hand, "enforced
disappearances" are "attended by the
 WRITS TO SELF-INCRIMINATION ACJUCO 23
following characteristics: an arrest, detention
or abduction of a person by a government
official or organized groups or private
individuals acting with the direct or indirect
acquiescence of the government; the refusal
of the State to disclose the fate or
whereabouts of the person concerned or a
refusal to acknowledge the deprivation of
liberty which places such persons outside the
protection of law."76
The writ of Amparo originated in Mexico.
"Amparo" literally means "protection" in
Spanish.77 In 1837, de Tocqueville's
Democracy in America became available in
Mexico and stirred great interest. Its
description of the practice of judicial review in
the U.S. appealed to many Mexican jurists.78
One of them, Manuel Crescencio Rejón,
drafted a constitutional provision for his native
state, Yucatan,79 which granted judges the
power to protect all persons in the enjoyment
of their constitutional and legal rights. This
idea was incorporated into the national
constitution in 1847, viz:
The federal courts shall protect any inhabitant
of the Republic in the exercise and
preservation of those rights granted to him by
this Constitution and by laws enacted pursuant
hereto, against attacks by the Legislative and
Executive powers of the federal or state
governments, limiting themselves to granting
protection in the specific case in litigation,
making no general declaration concerning the
statute or regulation that motivated the
violation.80
Since then, the protection has been an
important part of Mexican constitutionalism.81
If, after hearing, the judge determines that a
constitutional right of the petitioner is being
violated, he orders the official, or the official's
superiors, to cease the violation and to take
the necessary measures to restore the
petitioner to the full enjoyment of the right in
question. Amparo thus combines the
principles of judicial review derived from the
U.S. with the limitations on judicial power
characteristic of the civil law tradition which
prevails in Mexico. It enables courts to enforce
the constitution by protecting individual rights
in particular cases, but prevents them from
using this power to make law for the entire
nation.82
The writ of Amparo then spread throughout the
Western Hemisphere, gradually evolving into
various forms, in response to the particular
needs of each country.83 It became, in the
words of a justice of the Mexican Federal
Supreme Court, one piece of Mexico's self-
attributed "task of conveying to the world's
legal heritage that institution which, as a shield
of human dignity, her own painful history
conceived."84 What began as a protection
against acts or omissions of public authorities
in violation of constitutional rights later evolved
for several purposes: (1) Amparo libertad for
the protection of personal freedom, equivalent
to the habeas corpus writ; (2) Amparo contra
leyes for the judicial review of the
constitutionality of statutes; (3) Amparo
casacion for the judicial review of the
constitutionality and legality of a judicial
decision; (4) Amparo administrativo for the
judicial review of administrative actions; and
(5) Amparo agrario for the protection of
peasants' rights derived from the agrarian
reform process.85
In Latin American countries, except Cuba, the
writ of Amparo has been constitutionally
adopted to protect against human rights
abuses especially committed in countries
under military juntas. In general, these
countries adopted an all-encompassing writ to
protect the whole gamut of constitutional
rights, including socio-economic rights.86
Other countries like Colombia, Chile, Germany
and Spain, however, have chosen to limit the
protection of the writ of Amparo only to some
constitutional guarantees or fundamental
rights.87
In the Philippines, while the 1987 Constitution
does not explicitly provide for the writ of
Amparo, several of the above Amparo
protections are guaranteed by our charter. The
second paragraph of Article VIII, Section 1 of
the 1987 Constitution, the Grave Abuse
Clause, provides for the judicial power "to
determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentality of the Government." The
Clause accords a similar general protection to
human rights extended by the Amparo contra
leyes, Amparo casacion, and Amparo
administrativo. Amparo libertad is comparable
 WRITS TO SELF-INCRIMINATION ACJUCO 24
to the remedy of habeas corpus found in
several provisions of the 1987 Constitution.88
The Clause is an offspring of the U.S. common
law tradition of judicial review, which finds its
roots in the 1803 case of Marbury v.
Madison.89
While constitutional rights can be protected
under the Grave Abuse Clause through
remedies of injunction or prohibition under
Rule 65 of the Rules of Court and a petition for
habeas corpus under Rule 102,90 these
remedies may not be adequate to address the
pestering problem of extralegal killings and
enforced disappearances. However, with the
swiftness required to resolve a petition for a
writ of Amparo through summary proceedings
and the availability of appropriate interim and
permanent reliefs under the Amparo Rule, this
hybrid writ of the common law and civil law
traditions - borne out of the Latin American and
Philippine experience of human rights abuses
- offers a better remedy to extralegal killings
and enforced disappearances and threats
thereof. The remedy provides rapid judicial
relief as it partakes of a summary proceeding
that requires only substantial evidence to
make the appropriate reliefs available to the
petitioner; it is not an action to determine
criminal guilt requiring proof beyond
reasonable doubt, or liability for damages
requiring preponderance of evidence, or
administrative responsibility requiring
substantial evidence that will require full and
exhaustive proceedings.91
The writ of Amparo serves both preventive and
curative roles in addressing the problem of
extralegal killings and enforced
disappearances. It is preventive in that it
breaks the expectation of impunity in the
commission of these offenses; it is curative in
that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to
subsequent investigation and action. In the
long run, the goal of both the preventive and
curative roles is to deter the further
commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an
action for "Prohibition, Injunction, and
Temporary Restraining Order"92 to stop
petitioners and/or their officers and agents
from depriving the respondents of their right to
liberty and other basic rights on August 23,
2007,93 prior to the promulgation of the
Amparo Rule. They also sought ancillary
remedies including Protective Custody
Orders, Appointment of Commissioner,
Inspection and Access Orders and other legal
and equitable remedies under Article VIII,
Section 5(5) of the 1987 Constitution and Rule
135, Section 6 of the Rules of Court. When the
Amparo Rule came into effect on October 24,
2007, they moved to have their petition treated
as an Amparo petition as it would be more
effective and suitable to the circumstances of
the Manalo brothers' enforced disappearance.
The Court granted their motion.
With this backdrop, we now come to the
arguments of the petitioner. Petitioners' first
argument in disputing the Decision of the
Court of Appeals states, viz:
The Court of Appeals seriously and grievously
erred in believing and giving full faith and credit
to the incredible uncorroborated, contradicted,
and obviously scripted, rehearsed and self-
serving affidavit/testimony of herein
respondent Raymond Manalo.94
In delving into the veracity of the evidence, we
need to mine and refine the ore of petitioners'
cause of action, to determine whether the
evidence presented is metal-strong to satisfy
the degree of proof required.
Section 1 of the Rule on the Writ of Amparo
provides for the following causes of action, viz:
Section 1. Petition. - The petition for a writ of
Amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
(emphasis supplied)
Sections 17 and 18, on the other hand, provide
for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of
Diligence Required. - The parties shall
establish their claims by substantial evidence.
 WRITS TO SELF-INCRIMINATION ACJUCO 25
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the
petition are proven by substantial evidence,
the court shall grant the privilege of the writ
and such reliefs as may be proper and
appropriate; otherwise, the privilege shall be
denied. (emphases supplied)
Substantial evidence has been defined as
such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion.95
After careful perusal of the evidence
presented, we affirm the findings of the Court
of Appeals that respondents were abducted
from their houses in Sito Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan on
February 14, 2006 and were continuously
detained until they escaped on August 13,
2007. The abduction, detention, torture, and
escape of the respondents were narrated by
respondent Raymond Manalo in a clear and
convincing manner. His account is dotted with
countless candid details of respondents'
harrowing experience and tenacious will to
escape, captured through his different senses
and etched in his memory. A few examples are
the following: "Sumilip ako sa isang haligi ng
kamalig at nakita kong sinisilaban si
Manuel."96 "(N)ilakasan ng mga sundalo ang
tunog na galing sa istiryo ng sasakyan. Di
nagtagal, narinig ko ang hiyaw o ungol ni
Manuel."97 "May naiwang mga bakas ng dugo
habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas."98
"Tumigil ako sa may palaisdaan kung saan
ginamit ko ang bato para tanggalin ang mga
kadena."99 "Tinanong ko sa isang kapit-bahay
kung paano ako makakakuha ng cell phone;
sabi ko gusto kong i-text ang isang babae na
nakatira sa malapit na lugar."100
We affirm the factual findings of the appellate
court, largely based on respondent Raymond
Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed
men who were sufficiently identified by the
petitioners (herein respondents) to be military
personnel and CAFGU auxiliaries. Raymond
recalled that the six armed men who barged
into his house through the rear door were
military men based on their attire of fatigue
pants and army boots, and the CAFGU
auxiliaries, namely: Michael de la Cruz,
Madning de la Cruz, Puti de la Cruz and Pula
de la Cruz, all members of the CAFGU and
residents of Muzon, San Ildefonso, Bulacan,
and the brothers Randy Mendoza and Rudy
Mendoza, also CAFGU members, served as
lookouts during the abduction. Raymond was
sure that three of the six military men were
Ganata, who headed the abducting team,
Hilario, who drove the van, and George.
Subsequent incidents of their long captivity, as
narrated by the petitioners, validated their
assertion of the participation of the elements
of the 7th Infantry Division, Philippine Army,
and their CAFGU auxiliaries.
We are convinced, too, that the reason for the
abduction was the suspicion that the
petitioners were either members or
sympathizers of the NPA, considering that the
abductors were looking for Ka Bestre, who
turned out to be Rolando, the brother of
petitioners.
The efforts exerted by the Military Command
to look into the abduction were, at best, merely
superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on
the one-sided version of the CAFGU
auxiliaries involved. This one-sidedness might
be due to the fact that the Provost Marshall
could delve only into the participation of
military personnel, but even then the Provost
Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he
perfunctorily investigated...
Gen. Palparan's participation in the abduction
was also established. At the very least, he was
aware of the petitioners' captivity at the hands
of men in uniform assigned to his command.
In fact, he or any other officer tendered no
controversion to the firm claim of Raymond
that he (Gen. Palparan) met them in person in
a safehouse in Bulacan and told them what he
wanted them and their parents to do or not to
be doing. Gen. Palparan's direct and personal
role in the abduction might not have been
shown but his knowledge of the dire situation
of the petitioners during their long captivity at
the hands of military personnel under his
command bespoke of his indubitable
command policy that unavoidably encouraged
and not merely tolerated the abduction of
 WRITS TO SELF-INCRIMINATION ACJUCO 26
civilians without due process of law and
without probable cause.
In the habeas proceedings, the Court, through
the Former Special Sixth Division (Justices
Buzon, chairman; Santiago-Lagman, Sr.,
member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and
convincing evidence to establish that M/Sgt.
Rizal Hilario had anything to do with the
abduction or the detention. Hilario's
involvement could not, indeed, be then
established after Evangeline Francisco, who
allegedly saw Hilario drive the van in which the
petitioners were boarded and ferried following
the abduction, did not testify. (See the decision
of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that
Hilario drove the white L-300 van in which the
petitioners were brought away from their
houses on February 14, 2006. Raymond also
attested that Hilario participated in subsequent
incidents during the captivity of the petitioners,
one of which was when Hilario fetched them
from Fort Magsaysay on board a Revo and
conveyed them to a detachment in Pinaud,
San Ildefonso, Bulacan where they were
detained for at least a week in a house of
strong materials (Exhibit D, rollo, p. 205) and
then Hilario (along with Efren) brought them to
Sapang, San Miguel, Bulacan on board the
Revo, to an unfinished house inside the
compound of Kapitan where they were kept for
more or less three months. (Exhibit D, rollo, p.
205) It was there where the petitioners came
face to face with Gen. Palparan. Hilario and
Efren also brought the petitioners one early
morning to the house of the petitioners'
parents, where only Raymond was presented
to the parents to relay the message from Gen.
Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they
would not again see their sons should they join
any rallies to denounce human rights
violations. (Exhibit D, rollo, pp. 205-206)
Hilario was also among four Master Sergeants
(the others being Arman, Ganata and
Cabalse) with whom Gen. Palparan conversed
on the occasion when Gen. Palparan required
Raymond to take the medicines for his health.
(Exhibit D, rollo, p. 206) There were other
occasions when the petitioners saw that
Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of
Hilario in the abduction and forced
disappearance of the petitioners was
established. The participation of other military
personnel like Arman, Ganata, Cabalse and
Caigas, among others, was similarly
established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court
found them personally involved in the
abduction. We also do, for, indeed, the
evidence of their participation is
overwhelming.101
We reject the claim of petitioners that
respondent Raymond Manalo's statements
were not corroborated by other independent
and credible pieces of evidence.102
Raymond's affidavit and testimony were
corroborated by the affidavit of respondent
Reynaldo Manalo. The testimony and medical
reports prepared by forensic specialist Dr.
Molino, and the pictures of the scars left by the
physical injuries inflicted on respondents,103
also corroborate respondents' accounts of the
torture they endured while in detention.
Respondent Raymond Manalo's familiarity
with the facilities in Fort Magsaysay such as
the "DTU," as shown in his testimony and
confirmed by Lt. Col. Jimenez to be the
"Division Training Unit,"104 firms up
respondents' story that they were detained for
some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by
the Inter-American Commission on Human
Rights, the Commission considered similar
evidence, among others, in finding that
complainant Sister Diana Ortiz was abducted
and tortured by agents of the Guatemalan
government. In this case, Sister Ortiz was
kidnapped and tortured in early November
1989. The Commission's findings of fact were
mostly based on the consistent and credible
statements, written and oral, made by Sister
Ortiz regarding her ordeal.106 These
statements were supported by her recognition
of portions of the route they took when she
was being driven out of the military installation
where she was detained.107 She was also
examined by a medical doctor whose findings
showed that the 111 circular second degree
burns on her back and abrasions on her cheek
 WRITS TO SELF-INCRIMINATION ACJUCO 27
coincided with her account of cigarette burning
and torture she suffered while in detention.108
With the secret nature of an enforced
disappearance and the torture perpetrated on
the victim during detention, it logically holds
that much of the information and evidence of
the ordeal will come from the victims
themselves, and the veracity of their account
will depend on their credibility and candidness
in their written and/or oral statements. Their
statements can be corroborated by other
evidence such as physical evidence left by the
torture they suffered or landmarks they can
identify in the places where they were
detained. Where powerful military officers are
implicated, the hesitation of witnesses to
surface and testify against them comes as no
surprise.
We now come to the right of the respondents
to the privilege of the writ of Amparo. There is
no quarrel that the enforced disappearance of
both respondents Raymond and Reynaldo
Manalo has now passed as they have
escaped from captivity and surfaced. But while
respondents admit that they are no longer in
detention and are physically free, they assert
that they are not "free in every sense of the
word"109 as their "movements continue to be
restricted for fear that people they have named
in their Judicial Affidavits and testified against
(in the case of Raymond) are still at large and
have not been held accountable in any way.
These people are directly connected to the
Armed Forces of the Philippines and are, thus,
in a position to threaten respondents' rights to
life, liberty and security."110 (emphasis
supplied) Respondents claim that they are
under threat of being once again abducted,
kept captive or even killed, which constitute a
direct violation of their right to security of
person.111
Elaborating on the "right to security, in
general," respondents point out that this right
is "often associated with liberty;" it is also seen
as an "expansion of rights based on the
prohibition against torture and cruel and
unusual punishment." Conceding that there is
no right to security expressly mentioned in
Article III of the 1987 Constitution, they submit
that their rights "to be kept free from torture
and from incommunicado detention and
solitary detention places112 fall under the
general coverage of the right to security of
person under the writ of Amparo." They submit
that the Court ought to give an expansive
recognition of the right to security of person in
view of the State Policy under Article II of the
1987 Constitution which enunciates that, "The
State values the dignity of every human
person and guarantees full respect for human
rights." Finally, to justify a liberal interpretation
of the right to security of person, respondents
cite the teaching in Moncupa v. Enrile113 that
"the right to liberty may be made more
meaningful only if there is no undue restraint
by the State on the exercise of that liberty"114
such as a requirement to "report under
unreasonable restrictions that amounted to a
deprivation of liberty"115 or being put under
"monitoring and surveillance."116
In sum, respondents assert that their cause of
action consists in the threat to their right to life
and liberty, and a violation of their right to
security.
Let us put this right to security under the lens
to determine if it has indeed been violated as
respondents assert. The right to security or the
right to security of person finds a textual hook
in Article III, Section 2 of the 1987 Constitution
which provides, viz:
Sec. 2. The right of the people to be secure in
their persons, houses, papers and effects
against unreasonable searches and seizures
of whatever nature and for any purpose shall
be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined personally
by the judge...
At the core of this guarantee is the immunity of
one's person, including the extensions of
his/her person - houses, papers, and effects -
against government intrusion. Section 2 not
only limits the state's power over a person's
home and possessions, but more importantly,
protects the privacy and sanctity of the person
himself.117 The purpose of this provision was
enunciated by the Court in People v. CFI of
Rizal, Branch IX, Quezon City, viz: 118
The purpose of the constitutional guarantee
against unreasonable searches and seizures
is to prevent violations of private security in
person and property and unlawful invasion of
 WRITS TO SELF-INCRIMINATION ACJUCO 28
the security of the home by officers of the law
acting under legislative or judicial sanction and
to give remedy against such usurpation when
attempted. (Adams v. New York, 192 U.S. 858;
Alvero v. Dizon, 76 Phil. 637 [1946]). The right
to privacy is an essential condition to the
dignity and happiness and to the peace and
security of every individual, whether it be of
home or of persons and correspondence.
(Tañada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The
constitutional inviolability of this great
fundamental right against unreasonable
searches and seizures must be deemed
absolute as nothing is closer to a man's soul
than the serenity of his privacy and the
assurance of his personal security. Any
interference allowable can only be for the best
causes and reasons.119 (emphases supplied)
While the right to life under Article III, Section
1120 guarantees essentially the right to be
alive121 - upon which the enjoyment of all
other rights is preconditioned - the right to
security of person is a guarantee of the secure
quality of this life, viz: "The life to which each
person has a right is not a life lived in fear that
his person and property may be unreasonably
violated by a powerful ruler. Rather, it is a life
lived with the assurance that the government
he established and consented to, will protect
the security of his person and property. The
ideal of security in life and property... pervades
the whole history of man. It touches every
aspect of man's existence."122 In a broad
sense, the right to security of person
"emanates in a person's legal and
uninterrupted enjoyment of his life, his limbs,
his body, his health, and his reputation. It
includes the right to exist, and the right to
enjoyment of life while existing, and it is
invaded not only by a deprivation of life but
also of those things which are necessary to the
enjoyment of life according to the nature,
temperament, and lawful desires of the
individual."123
A closer look at the right to security of person
would yield various permutations of the
exercise of this right.
First, the right to security of person is "freedom
from fear." In its "whereas" clauses, the
Universal Declaration of Human Rights
(UDHR) enunciates that "a world in which
human beings shall enjoy freedom of speech
and belief and freedom from fear and want has
been proclaimed as the highest aspiration of
the common people." (emphasis supplied)
Some scholars postulate that "freedom from
fear" is not only an aspirational principle, but
essentially an individual international human
right.124 It is the "right to security of person"
as the word "security" itself means "freedom
from fear."125 Article 3 of the UDHR provides,
viz:
Everyone has the right to life, liberty and
security of person.126 (emphasis supplied)
In furtherance of this right declared in the
UDHR, Article 9(1) of the International
Covenant on Civil and Political Rights (ICCPR)
also provides for the right to security of person,
viz:
1. Everyone has the right to liberty and security
of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds
and in accordance with such procedure as are
established by law. (emphasis supplied)
The Philippines is a signatory to both the
UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule,
"freedom from fear" is the right and any threat
to the rights to life, liberty or security is the
actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action.
Fear caused by the same stimulus can range
from being baseless to well-founded as people
react differently. The degree of fear can vary
from one person to another with the variation
of the prolificacy of their imagination, strength
of character or past experience with the
stimulus. Thus, in the Amparo context, it is
more correct to say that the "right to security"
is actually the "freedom from threat." Viewed
in this light, the "threatened with violation"
Clause in the latter part of Section 1 of the
Amparo Rule is a form of violation of the right
to security mentioned in the earlier part of the
provision.127
Second, the right to security of person is a
guarantee of bodily and psychological integrity
or security. Article III, Section II of the 1987
Constitution guarantees that, as a general
 WRITS TO SELF-INCRIMINATION ACJUCO 29
rule, one's body cannot be searched or
invaded without a search warrant.128 Physical
injuries inflicted in the context of extralegal
killings and enforced disappearances
constitute more than a search or invasion of
the body. It may constitute dismemberment,
physical disabilities, and painful physical
intrusion. As the degree of physical injury
increases, the danger to life itself escalates.
Notably, in criminal law, physical injuries
constitute a crime against persons because
they are an affront to the bodily integrity or
security of a person.129
Physical torture, force, and violence are a
severe invasion of bodily integrity. When
employed to vitiate the free will such as to
force the victim to admit, reveal or fabricate
incriminating information, it constitutes an
invasion of both bodily and psychological
integrity as the dignity of the human person
includes the exercise of free will. Article III,
Section 12 of the 1987 Constitution more
specifically proscribes bodily and
psychological invasion, viz:
(2) No torture, force, violence, threat or
intimidation, or any other means which vitiate
the free will shall be used against him (any
person under investigation for the commission
of an offense). Secret detention places,
solitary, incommunicado or other similar forms
of detention are prohibited.
Parenthetically, under this provision, threat
and intimidation that vitiate the free will -
although not involving invasion of bodily
integrity - nevertheless constitute a violation of
the right to security in the sense of "freedom
from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from
dehumanizing abuses of persons under
investigation for the commission of an offense.
Victims of enforced disappearances who are
not even under such investigation should all
the more be protected from these
degradations.
An overture to an interpretation of the right to
security of person as a right against torture
was made by the European Court of Human
Rights (ECHR) in the recent case of Popov v.
Russia.130 In this case, the claimant, who was
lawfully detained, alleged that the state
authorities had physically abused him in
prison, thereby violating his right to security of
person. Article 5(1) of the European
Convention on Human Rights provides, viz:
"Everyone has the right to liberty and security
of person. No one shall be deprived of his
liberty save in the following cases and in
accordance with a procedure prescribed by
law ..." (emphases supplied) Article 3, on the
other hand, provides that "(n)o one shall be
subjected to torture or to inhuman or
degrading treatment or punishment." Although
the application failed on the facts as the
alleged ill-treatment was found baseless, the
ECHR relied heavily on the concept of security
in holding, viz:
...the applicant did not bring his allegations to
the attention of domestic authorities at the time
when they could reasonably have been
expected to take measures in order to ensure
his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security
in custody or to comply with the procedural
obligation under Art.3 to conduct an effective
investigation into his allegations.131
(emphasis supplied)
The U.N. Committee on the Elimination of
Discrimination against Women has also made
a statement that the protection of the bodily
integrity of women may also be related to the
right to security and liberty, viz:
...gender-based violence which impairs or
nullifies the enjoyment by women of human
rights and fundamental freedoms under
general international law or under specific
human rights conventions is discrimination
within the meaning of article 1 of the
Convention (on the Elimination of All Forms of
Discrimination Against Women). These rights
and freedoms include . . . the right to liberty
and security of person.132
Third, the right to security of person is a
guarantee of protection of one's rights by the
government. In the context of the writ of
Amparo, this right is built into the guarantees
of the right to life and liberty under Article III,
Section 1 of the 1987 Constitution and the right
 WRITS TO SELF-INCRIMINATION ACJUCO 30
to security of person (as freedom from threat
and guarantee of bodily and psychological
integrity) under Article III, Section 2. The right
to security of person in this third sense is a
corollary of the policy that the State
"guarantees full respect for human rights"
under Article II, Section 11 of the 1987
Constitution.133 As the government is the
chief guarantor of order and security, the
Constitutional guarantee of the rights to life,
liberty and security of person is rendered
ineffective if government does not afford
protection to these rights especially when they
are under threat. Protection includes
conducting effective investigations,
organization of the government apparatus to
extend protection to victims of extralegal
killings or enforced disappearances (or threats
thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-
American Court of Human Rights stressed the
importance of investigation in the Velasquez
Rodriguez Case,134 viz:
(The duty to investigate) must be undertaken
in a serious manner and not as a mere
formality preordained to be ineffective. An
investigation must have an objective and be
assumed by the State as its own legal duty, not
as a step taken by private interests that
depends upon the initiative of the victim or his
family or upon their offer of proof, without an
effective search for the truth by the
government.135
This third sense of the right to security of
person as a guarantee of government
protection has been interpreted by the United
Nations' Human Rights Committee136 in not a
few cases involving Article 9137 of the ICCPR.
While the right to security of person appears in
conjunction with the right to liberty under
Article 9, the Committee has ruled that the
right to security of person can exist
independently of the right to liberty. In other
words, there need not necessarily be a
deprivation of liberty for the right to security of
person to be invoked. In Delgado Paez v.
Colombia,138 a case involving death threats
to a religion teacher at a secondary school in
Leticia, Colombia, whose social views differed
from those of the Apostolic Prefect of Leticia,
the Committee held, viz:
The first sentence of article 9 does not stand
as a separate paragraph. Its location as a part
of paragraph one could lead to the view that
the right to security arises only in the context
of arrest and detention. The travaux
préparatoires indicate that the discussions of
the first sentence did indeed focus on matters
dealt with in the other provisions of article 9.
The Universal Declaration of Human Rights, in
article 3, refers to the right to life, the right to
liberty and the right to security of the person.
These elements have been dealt with in
separate clauses in the Covenant. Although in
the Covenant the only reference to the right of
security of person is to be found in article 9,
there is no evidence that it was intended to
narrow the concept of the right to security only
to situations of formal deprivation of liberty. At
the same time, States parties have undertaken
to guarantee the rights enshrined in the
Covenant. It cannot be the case that, as a
matter of law, States can ignore known threats
to the life of persons under their jurisdiction,
just because that he or she is not arrested or
otherwise detained. States parties are under
an obligation to take reasonable and
appropriate measures to protect them. An
interpretation of article 9 which would allow a
State party to ignore threats to the personal
security of non-detained persons within its
jurisdiction would render totally ineffective the
guarantees of the Covenant.139 (emphasis
supplied)
The Paez ruling was reiterated in Bwalya v.
Zambia,140 which involved a political activist
and prisoner of conscience who continued to
be intimidated, harassed, and restricted in his
movements following his release from
detention. In a catena of cases, the ruling of
the Committee was of a similar import:
Bahamonde v. Equatorial Guinea,141
involving discrimination, intimidation and
persecution of opponents of the ruling party in
that state; Tshishimbi v. Zaire,142 involving
the abduction of the complainant's husband
who was a supporter of democratic reform in
Zaire; Dias v. Angola,143 involving the murder
of the complainant's partner and the
harassment he (complainant) suffered
because of his investigation of the murder; and
Chongwe v. Zambia,144 involving an
assassination attempt on the chairman of an
opposition alliance.
 WRITS TO SELF-INCRIMINATION ACJUCO 31
Similarly, the European Court of Human
Rights (ECHR) has interpreted the "right to
security" not only as prohibiting the State from
arbitrarily depriving liberty, but imposing a
positive duty on the State to afford protection
of the right to liberty.145 The ECHR
interpreted the "right to security of person"
under Article 5(1) of the European Convention
of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146
In this case, the claimant's son had been
arrested by state authorities and had not been
seen since. The family's requests for
information and investigation regarding his
whereabouts proved futile. The claimant
suggested that this was a violation of her son's
right to security of person. The ECHR ruled,
viz:
... any deprivation of liberty must not only have
been effected in conformity with the
substantive and procedural rules of national
law but must equally be in keeping with the
very purpose of Article 5, namely to protect the
individual from arbitrariness... Having
assumed control over that individual it is
incumbent on the authorities to account for his
or her whereabouts. For this reason, Article 5
must be seen as requiring the authorities to
take effective measures to safeguard against
the risk of disappearance and to conduct a
prompt effective investigation into an arguable
claim that a person has been taken into
custody and has not been seen since.147
(emphasis supplied)
Applying the foregoing concept of the right to
security of person to the case at bar, we now
determine whether there is a continuing
violation of respondents' right to security.
First, the violation of the right to security as
freedom from threat to respondents' life, liberty
and security.
While respondents were detained, they were
threatened that if they escaped, their families,
including them, would be killed. In Raymond's
narration, he was tortured and poured with
gasoline after he was caught the first time he
attempted to escape from Fort Magsaysay. A
call from a certain "Mam," who wanted to see
him before he was killed, spared him.
This time, respondents have finally escaped.
The condition of the threat to be killed has
come to pass. It should be stressed that they
are now free from captivity not because they
were released by virtue of a lawful order or
voluntarily freed by their abductors. It ought to
be recalled that towards the end of their
ordeal, sometime in June 2007 when
respondents were detained in a camp in
Limay, Bataan, respondents' captors even told
them that they were still deciding whether they
should be executed. Respondent Raymond
Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami.
Tinanggal ang mga kadena mga 3 o 4 na araw
pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa
ng mga sundalo kung papatayin kami o
hindi.148
The possibility of respondents being executed
stared them in the eye while they were in
detention. With their escape, this continuing
threat to their life is apparent, moreso now that
they have surfaced and implicated specific
officers in the military not only in their own
abduction and torture, but also in those of
other persons known to have disappeared
such as Sherlyn Cadapan, Karen Empeño,
and Manuel Merino, among others.
Understandably, since their escape,
respondents have been under concealment
and protection by private citizens because of
the threat to their life, liberty and security. The
threat vitiates their free will as they are forced
to limit their movements or activities.149
Precisely because respondents are being
shielded from the perpetrators of their
abduction, they cannot be expected to show
evidence of overt acts of threat such as face-
to-face intimidation or written threats to their
life, liberty and security. Nonetheless, the
circumstances of respondents' abduction,
detention, torture and escape reasonably
support a conclusion that there is an apparent
threat that they will again be abducted,
tortured, and this time, even executed. These
constitute threats to their liberty, security, and
life, actionable through a petition for a writ of
Amparo.
Next, the violation of the right to security as
protection by the government. Apart from the
 WRITS TO SELF-INCRIMINATION ACJUCO 32
failure of military elements to provide
protection to respondents by themselves
perpetrating the abduction, detention, and
torture, they also miserably failed in
conducting an effective investigation of
respondents' abduction as revealed by the
testimony and investigation report of
petitioners' own witness, Lt. Col. Ruben
Jimenez, Provost Marshall of the 7th Infantry
Division.
The one-day investigation conducted by
Jimenez was very limited, superficial, and one-
sided. He merely relied on the Sworn
Statements of the six implicated members of
the CAFGU and civilians whom he met in the
investigation for the first time. He was present
at the investigation when his subordinate
Lingad was taking the sworn statements, but
he did not propound a single question to
ascertain the veracity of their statements or
their credibility. He did not call for other
witnesses to test the alibis given by the six
implicated persons nor for the family or
neighbors of the respondents.
In his affidavit, petitioner Secretary of National
Defense attested that in a Memorandum
Directive dated October 31, 2007, he issued a
policy directive addressed to the AFP Chief of
Staff, that the AFP should adopt rules of action
in the event the writ of Amparo is issued by a
competent court against any members of the
AFP, which should essentially include
verification of the identity of the aggrieved
party; recovery and preservation of relevant
evidence; identification of witnesses and
securing statements from them; determination
of the cause, manner, location and time of
death or disappearance; identification and
apprehension of the person or persons
involved in the death or disappearance; and
bringing of the suspected offenders before a
competent court.150 Petitioner AFP Chief of
Staff also submitted his own affidavit attesting
that he received the above directive of
respondent Secretary of National Defense and
that acting on this directive, he immediately
caused to be issued a directive to the units of
the AFP for the purpose of establishing the
circumstances of the alleged disappearance
and the recent reappearance of the
respondents, and undertook to provide results
of the investigations to respondents.151 To
this day, however, almost a year after the
policy directive was issued by petitioner
Secretary of National Defense on October 31,
2007, respondents have not been furnished
the results of the investigation which they now
seek through the instant petition for a writ of
Amparo.
Under these circumstances, there is
substantial evidence to warrant the conclusion
that there is a violation of respondents' right to
security as a guarantee of protection by the
government.
In sum, we conclude that respondents' right to
security as "freedom from threat" is violated by
the apparent threat to their life, liberty and
security of person. Their right to security as a
guarantee of protection by the government is
likewise violated by the ineffective
investigation and protection on the part of the
military.
Finally, we come to the reliefs granted by the
Court of Appeals, which petitioners question.
First, that petitioners furnish respondents all
official and unofficial reports of the
investigation undertaken in connection with
their case, except those already in file with the
court.
Second, that petitioners confirm in writing the
present places of official assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to
the Court of Appeals all medical reports,
records and charts, and reports of any
treatment given or recommended and
medicines prescribed, if any, to the Manalo
brothers, to include a list of medical personnel
(military and civilian) who attended to them
from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs,
petitioners argue that the production order
sought by respondents partakes of the
characteristics of a search warrant. Thus, they
claim that the requisites for the issuance of a
search warrant must be complied with prior to
the grant of the production order, namely: (1)
the application must be under oath or
affirmation; (2) the search warrant must
particularly describe the place to be searched
and the things to be seized; (3) there exists
 WRITS TO SELF-INCRIMINATION ACJUCO 33
probable cause with one specific offense; and
(4) the probable cause must be personally
determined by the judge after examination
under oath or affirmation of the complainant
and the witnesses he may produce.152 In the
case at bar, however, petitioners point out that
other than the bare, self-serving and vague
allegations made by respondent Raymond
Manalo in his unverified declaration and
affidavit, the documents respondents seek to
be produced are only mentioned generally by
name, with no other supporting details. They
also argue that the relevancy of the
documents to be produced must be apparent,
but this is not true in the present case as the
involvement of petitioners in the abduction has
not been shown.
Petitioners' arguments do not hold water. The
production order under the Amparo Rule
should not be confused with a search warrant
for law enforcement under Article III, Section 2
of the 1987 Constitution. This Constitutional
provision is a protection of the people from the
unreasonable intrusion of the government, not
a protection of the government from the
demand of the people such as respondents.
Instead, the Amparo production order may be
likened to the production of documents or
things under Section 1, Rule 27 of the Rules of
Civil Procedure which provides in relevant
part, viz:
Section 1. Motion for production or inspection
order.
Upon motion of any party showing good cause
therefor, the court in which an action is
pending may (a) order any party to produce
and permit the inspection and copying or
photographing, by or on behalf of the moving
party, of any designated documents, papers,
books of accounts, letters, photographs,
objects or tangible things, not privileged, which
constitute or contain evidence material to any
matter involved in the action and which are in
his possession, custody or control...
In Material Distributors (Phil.) Inc. v. Judge
Natividad,153 the respondent judge, under
authority of Rule 27, issued a subpoena duces
tecum for the production and inspection of
among others, the books and papers of
Material Distributors (Phil.) Inc. The company
questioned the issuance of the subpoena on
the ground that it violated the search and
seizure clause. The Court struck down the
argument and held that the subpoena
pertained to a civil procedure that "cannot be
identified or confused with unreasonable
searches prohibited by the Constitution..."
Moreover, in his affidavit, petitioner AFP Chief
of Staff himself undertook "to provide results of
the investigations conducted or to be
conducted by the concerned unit relative to the
circumstances of the alleged disappearance of
the persons in whose favor the Writ of Amparo
has been sought for as soon as the same has
been furnished Higher headquarters."
With respect to the second and third reliefs,
petitioners assert that the disclosure of the
present places of assignment of M/Sgt. Hilario
aka Rollie Castillo and Donald Caigas, as well
as the submission of a list of medical
personnel, is irrelevant, improper, immaterial,
and unnecessary in the resolution of the
petition for a writ of Amparo. They add that it
will unnecessarily compromise and jeopardize
the exercise of official functions and duties of
military officers and even unwittingly and
unnecessarily expose them to threat of
personal injury or even death.
On the contrary, the disclosure of the present
places of assignment of M/Sgt. Hilario aka
Rollie Castillo and Donald Caigas, whom
respondents both directly implicated as
perpetrators behind their abduction and
detention, is relevant in ensuring the safety of
respondents by avoiding their areas of
territorial jurisdiction. Such disclosure would
also help ensure that these military officers
can be served with notices and court
processes in relation to any investigation and
action for violation of the respondents' rights.
The list of medical personnel is also relevant
in securing information to create the medical
history of respondents and make appropriate
medical interventions, when applicable and
necessary.
In blatant violation of our hard-won guarantees
to life, liberty and security, these rights are
snuffed out from victims of extralegal killings
and enforced disappearances. The writ of
Amparo is a tool that gives voice to preys of
silent guns and prisoners behind secret walls.
 WRITS TO SELF-INCRIMINATION ACJUCO 34

WHEREFORE, premises considered, the

petition is DISMISSED. The Decision of the
Court of Appeals dated December 26, 2007 is
affirmed.

SO ORDERED.
 WRITS TO SELF-INCRIMINATION ACJUCO 35
G.R. Nos. 184379-80 April 24, 2012
RODOLFO NOEL LOZADA, JR., VIOLETA
LOZADA and ARTURO LOZADA,
Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL
ARROYO, EDUARDO ERMITA, AVELINO
RAZON, ANGEL ATUTUBO and SPO4
ROGER VALEROSO,* Respondents.
DECISION
SERENO, J.:
What the Court decides today has nothing to
do with the substance or merits surrounding
the aborted deal of the Philippine government
with the National Broadband Network and ZTE
Corporation, or any allegation of petitioner
Rodolfo Noel "June" Lozada, Jr., (Lozada)
regarding the same. There is only one issue
that we decide today – whether circumstances
are adequately alleged and proven by
petitioner Lozada to entitle him to the
protection of the writ of amparo. Before us is a
Petition for Review on Certiorari of the
Decision dated 12 September 2008 of the
Court of Appeals (CA), dismissing the Petition
for the Issuance of a Writ of Amparo.1
Petitioner Lozada was the former President
and Chief Executive Officer of the Philippine
Forest Corporation (PFC), a government-
owned- and -controlled corporation under the
Department of Environment and Natural
Resources (DENR).2 Petitioner Violeta
Lozada (Violeta) is his wife, while petitioner
Arturo Lozada (Arturo) is his brother.
At the time the Petition for the Writ of Amparo
was filed, respondent former President Gloria
Macapagal Arroyo (former President Arroyo)
was the incumbent President of the
Philippines. Meanwhile, Eduardo Ermita (ES
Ermita) was then the Executive Secretary;
Avelino Razon (Razon), the Director General
of the Philippine National Police (PNP); Angel
Atutubo (Atutubo), the Assistant General
Manager for Security and Emergency
Services of the Manila International Airport
Authority; and Rodolfo Valeroso (Valeroso),
an agent of the Aviation Security Group (ASG)
of the PNP.
Antecedent Facts
The instant Petition stems from the alleged
corruption scandal precipitated by a
transaction between the Philippine
government, represented by the National
Broadband Network (NBN), and ZTE
Corporation (ZTE), a Chinese manufacturer of
telecommunications equipment.3 Former
National Economic Development Authority
(NEDA) Secretary Romulo Neri (Sec. Neri)
sought the services of Lozada as an unofficial
consultant in the ZTE-NBN deal.4 The latter
avers that during the course of his
engagement, he discovered several
anomalies in the said transaction involving
certain public officials.5 These events impelled
the Senate of the Philippines Blue Ribbon
Committee (Blue Ribbon Committee) to
conduct an investigation thereon,6 for which it
issued a subpoena directing Lozada to appear
and testify on 30 January 2008.7
On that date, instead of appearing before the
Blue Ribbon Committee, Lozada left the
country for a purported official trip to London,
as announced by then DENR Secretary Lito
Atienza (Sec. Atienza).8 In the Petition,
Lozada alleged that his failure to appear at the
scheduled hearing was upon the instructions
of then Executive Assistant Undersecretary
Manuel Gaite (Usec. Gaite).9 Consequently,
the Senate issued an Order dated 30 January
2008: (a) citing Lozada for contempt; (b)
ordering his arrest and detention; and (c)
directing the Senate Sergeant-at-Arms to
implement the Order and make a return
thereon.10
While overseas, Lozada asked Sec. Atienza
whether the former could be allowed to go
back to the Philippines.11 Upon the approval
of Sec. Atienza, Lozada informed his family
that he was returning from Hong Kong on 5
February 2008 on board Cathay Pacific Flight
No. 919, bound to arrive in Manila at 4:40 p.m.
on the same day.12
In the Petition, Lozada claims that, upon
disembarking from the aircraft, several men
held his arms and took his bag. Although he
allegedly insisted on meeting with his family,
he later realized that it was wiser to just follow
them, especially when he overheard from their
 WRITS TO SELF-INCRIMINATION ACJUCO 36
handheld radio: "[H]wag kayong dumaan
diyan sir nandyan ang mga taga senado."13
Lozada asked if he could go to the comfort
room, an opportunity he used to call up his
brother, petitioner Arturo, and inform him of his
situation.14 The men thereafter led him
through the departure area of the airport and
into a car waiting for them.15 They made him
sit alone at the back of the vehicle, while a
man, whom he later discovered to be
respondent Valeroso, took the passenger seat
and was always in contact with other
individuals.16 Lozada observed that other
cars tailed their vehicle.17
Sec. Atienza then phoned Lozada, assuring
the latter that he was with people from the
government, and that the former was going to
confer with "ES and Ma’[a]m." Lozada
surmised that these individuals referred to ES
Ermita and former President Arroyo,
respectively.18 Sec. Atienza also purportedly
instructed Lozada to pacify his wife, petitioner
Violeta, who was making public statements
asking for her husband’s return.19
The vehicle traversed the South Luzon
Expressway and drove towards the direction
of Laguna.20 Along the way, the men asked
Lozada to draft an antedated letter requesting
police protection.21
Lozada requested that he be brought home to
Pasig, but the men were allegedly compelled
to deny his request on account of unidentified
security risks.22 Eventually, however, the
vehicle turned around and drove to Libis,
Quezon City. The group stopped at The
Outback restaurant to meet with certain
individuals, who turned out to be Atty. Antonio
Bautista (Atty. Bautista) and Colonel Paul
Mascarinas (Col. Mascarinas) of the Police
Special Protection Office (PSPO). At the
restaurant, Lozada claimed that he was made
to fill in the blanks of a prepared affidavit.23
After the meeting, the men informed Lozada
that they were going to billet him in a hotel for
a night, but he suggested that they take him to
La Salle Green Hills instead. The men
acquiesced.24
Upon arriving in La Salle Green Hills, Lozada
was met by Violeta and his sister, Carmen
Lozada (Carmen).25 He observed that the
perimeter was guarded by policemen,
purportedly restraining his liberty and
threatening not only his security, but also that
of his family and the De La Salle brothers.26
On 6 February 2008, at around 10:00 a.m.,
Col. Mascarinas supposedly brought Lozada
to the office of Atty. Bautista to finalize and
sign an affidavit.27
At about 1:00 p.m., Violeta filed before this
Court a Petition for Habeas Corpus, docketed
as G.R. No. 181342 (the Habeas Corpus
case).28 Arturo likewise filed before this Court
a Petition for a Writ of Amparo, docketed as
G.R. No. 181356 (the Amparo case), and
prayed for the issuance of (a) the writ of
amparo; (b) a Temporary Protection Order
(TPO); and (c) Inspection and Production
Orders as regards documents related to the
authority ordering custody over Lozada, as
well as any other document that would show
responsibility for his alleged abduction.29
At around the same time that Arturo filed the
Petition for a Writ of Amparo, Col. Mascarinas
drove Lozada back to La Salle Green Hills.30
Lozada was then made to sign a typewritten,
antedated letter requesting police
protection.31 Thereafter, former Presidential
Spokesperson Michael Defensor (Sec.
Defensor) supposedly came and requested
Lozada to refute reports that the latter was
kidnapped and to deny knowledge of alleged
anomalies in the NBN-ZTE deal. Sec.
Defensor then purportedly gave Lozada
₱50,000 for the latter’s expenses.32
On 7 February 2008, Lozada decided to hold
a press conference and contact the Senate
Sergeant-at-Arms, who served the warrant of
arrest on him.33 Lozada claimed that after his
press conference and testimony in the Senate,
he and his family were since then harassed,
stalked and threatened.34
On the same day, this Court issued a
Resolution (a) consolidating the Habeas
Corpus case and the Amparo case; (b)
requiring respondents in the Habeas Corpus
case to comment on the Petition; (c) issuing a
Writ of Amparo; (d) ordering respondents in
the Amparo case to file their verified Return;
(e) referring the consolidated Petitions to the
 WRITS TO SELF-INCRIMINATION ACJUCO 37
CA; and (f) directing the CA to set the cases
for hearing on 14 February 2008.35
Accordingly, the court a quo set both cases for
hearing on 14 February 2008.36
On 12 February 2008, respondents filed
before the CA a Manifestation and Motion,
praying for the dismissal of the Habeas Corpus
case.37 They asserted that Lozada was never
illegally deprived of his liberty and was, at that
time, no longer in their custody. They likewise
averred that, beginning 8 February 2008,
Lozada had already been under the
supervision of the Senate and, from then on,
had been testifying before it.38
In their verified Return, respondents claimed
that Sec. Atienza had arranged for the
provision of a security team to be assigned to
Lozada, who was then fearful for his safety.39
In effect, respondents asserted that Lozada
had knowledge and control of the events that
took place on 5 February 2008, voluntarily
entrusted himself to their company, and was
never deprived of his liberty. Hence,
respondents prayed for the denial of the
interim reliefs and the dismissal of the
Petition.40
During the initial hearing on 14 February 2008,
Lozada and Violeta ratified the Petition in the
Amparo case41 to comply with Section 2 of the
Rule on the Writ of Amparo,42 which imposes
an order to be followed by those who can sue
for the writ.43 The CA also dismissed the
Habeas Corpus case in open court for being
moot and academic, as Lozada was physically
present and was not confined or detained by
any of the respondents.44 Considering that
petitioners failed to question the dismissal of
the Habeas Corpus case, the said dismissal
had lapsed into finality, leaving only the
Amparo case open for disposition.
Thereafter, Lozada filed a Motion for
Temporary Protection Order and Production of
Documents,45 while Arturo filed a Motion for
Production of Documents.46 Additionally,
Arturo also filed a Motion for the Issuance of
Subpoena Ad Testificandum and Presentation
of Hostile Witnesses and Adverse Parties
Romulo Neri, Benjamin Abalos, [Sr.], Rodolfo
Valeroso, "Jaime" the Driver and Other
Respondents. Respondents opposed these
motions.47 The CA denied the Motion for the
Issuance of Subpoena on the ground that the
alleged acts and statements attributed to Sec.
Neri and Benjamin Abalos (Abalos) were
irrelevant to the Amparo case, and that to
require them to testify would only result in a
fishing expedition.48 The CA likewise denied
Arturo’s subsequent Motion for
Reconsideration.49
In its Resolution dated 5 March 2008, the CA
dropped former President Arroyo as a
respondent on the ground that at the time the
Petition in the Amparo case was filed, she was
still the incumbent President enjoying
immunity from suit.50 Arturo filed a Motion for
Reconsideration,51 which the CA denied in its
Resolution dated 25 March 2008.52
On 12 September 2008, the CA rendered its
Decision denying petitioners the privilege of
the Writ of Amparo and dismissing the
Petition.53 The CA found that petitioners were
unable to prove through substantial evidence
that respondents violated, or threatened with
violation, the right to life, liberty and security of
Lozada.
Petitioners thus filed the instant Petition,
praying for: (a) the reversal of the assailed CA
Decision; (b) the issuance of the TPO; and (c)
the accreditation of the Association of Major
Religious Superiors of the Philippines and the
De La Salle Brothers as the sanctuaries of
Lozada and his family.54 In the alternative,
petitioners pray that this Court remand the
case to the CA for further hearings and reverse
the latter’s Orders: (a) denying the Motion to
Issue a Subpoena Ad Testificandum and (b)
dropping former President Arroyo as a
respondent. Petitioners raise the following
issues:
(1) Whether the Court a [q]uo erred in ruling to
dismiss the petition for a writ of amparo and
deny Petitioners’ prayer for a Temporary
Protection Order, inter alia, because there is
no substantial evidence to prove that the right
to life, liberty or security of Jun Lozada was
violated or threatened with violation. This rule
is not in accord with the rule on the writ of
amparo and Supreme Court jurisprudence on
substantial evidence[.]
(2) Whether the Ponencia erred and gravely
abused its discretion by prematurely ruling that
 WRITS TO SELF-INCRIMINATION ACJUCO 38
the testimony of witnesses which Petitioners
sought to present and who are subject of the
Motion for Issuance of Subpoena ad
testificandum were irrelevant to the Petition for
a Writ of Amparo in a way not in accord with
the Rules of Court and Supreme Court
decisions.
(3) Whether the Court a quo erred in using and
considering the affidavits of respondents in
coming up with the questioned decision when
these were not offered as evidence and were
not subjected to cross-examination. This ruling
is not in accord with the Rules of Court and
jurisprudence.
(4) Whether the Court a [q]uo erred in dropping
as respondent Pres. Gloria Arroyo despite her
failure to submit a verified return and
personally claim presidential immunity in a
way not in accord with the Rule on the Writ of
Amparo.55
The Office of the Solicitor General (OSG)
asserts that petitioners failed to adduce
substantial evidence, as the allegations they
propounded in support of their Petition were
largely hearsay.56 The OSG also maintains
that it was proper for the CA to have dropped
former President Arroyo as respondent on
account of her presidential immunity from
suit.57
Respondent Atutubo also alleges, among
others, that: (a) Lozada voluntarily asked for
security and protection; (b) Lozada willingly
submitted himself to the company of the police
escorts; (c) Atutubo merely accompanied him
to pass through the contingency route
customarily provided to VIP passengers,
public figures, foreign dignitaries, and the like;
and (d) Atutubo only performed his job to
ensure security and maintain order at the
airport upon the arrival of Lozada.58
In the face of these assertions by respondents,
petitioners nevertheless insist that while they
have sufficiently established that Lozada was
taken against his will and was put under
restraint, respondents have failed to discharge
their own burden to prove that they exercised
extraordinary diligence as public officials.59
Petitioners also maintain that it was erroneous
for the CA to have denied their motion for
subpoena ad testificandum for being
irrelevant, given that the relevancy of evidence
must be examined after it is offered, and not
before.60 Finally, petitioners contend that the
presidential immunity from suit cannot be
invoked in amparo actions.61
Issues
In ruling on whether the CA committed
reversible error in issuing its assailed
Decision, three issues must be discussed:
I. Whether the CA committed an error in
dropping former President Arroyo as a
respondent in the Amparo case.
II. Whether the CA committed an error in
denying petitioners’ Motion for the Issuance of
a Subpoena Ad Testificandum.
III. Whether petitioners should be granted the
privilege of the writ of amparo.
Discussion
The writ of amparo is an independent and
summary remedy that provides rapid judicial
relief to protect the people’s right to life, liberty
and security.62 Having been originally
intended as a response to the alarming cases
of extrajudicial killings and enforced
disappearances in the country, it serves both
preventive and curative roles to address the
said human rights violations. 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.63
As it stands, the writ of amparo is confined only
to cases of extrajudicial killings and enforced
disappearances, or to threats thereof.64
Considering that this remedy is aimed at
addressing these serious violations of or
threats to the right to life, liberty and security,
it cannot be issued on amorphous and
uncertain grounds,65 or in cases where the
alleged threat has ceased and is no longer
imminent or continuing.66 Instead, it must be
granted judiciously so as not to dilute the
extraordinary and remedial character of the
writ, thus:
 WRITS TO SELF-INCRIMINATION ACJUCO 39
The privilege of the writ of amparo is
envisioned basically to protect and guarantee
the rights to life, liberty, and security of
persons, free from fears and threats that vitiate
the quality of this life. It is an extraordinary writ
conceptualized and adopted in light of and in
response to the prevalence of extra-legal
killings and enforced disappearances.
Accordingly, the remedy ought to be resorted
to and granted judiciously, lest the ideal
sought by the Amparo Rule be diluted and
undermined by the indiscriminate filing of
amparo petitions for purposes less than the
desire to secure amparo reliefs and protection
and/or on the basis of unsubstantiated
allegations.67 (Emphasis supplied.)
Using this perspective as the working
framework for evaluating the assailed CA
decision and the evidence adduced by the
parties, this Court denies the Petition.
First issue: Presidential immunity from suit
It is settled in jurisprudence that the President
enjoys immunity from suit during his or her
tenure of office or actual incumbency.68
Conversely, this presidential privilege of
immunity cannot be invoked by a non-sitting
president even for acts committed during his
or her tenure.69
In the case at bar, the events that gave rise to
the present action, as well as the filing of the
original Petition and the issuance of the CA
Decision, occurred during the incumbency of
former President Arroyo. In that respect, it was
proper for the court a quo to have dropped her
as a respondent on account of her presidential
immunity from suit.
It must be underscored, however, that since
her tenure of office has already ended, former
President Arroyo can no longer invoke the
privilege of presidential immunity as a defense
to evade judicial determination of her
responsibility or accountability for the alleged
violation or threatened violation of the right to
life, liberty and security of Lozada.
Nonetheless, examining the merits of the case
still results in the denial of the Petition on the
issue of former President Arroyo’s alleged
responsibility or accountability. A thorough
examination of the allegations postulated and
the evidence adduced by petitioners reveals
their failure to sufficiently establish any
unlawful act or omission on her part that
violated, or threatened with violation, the right
to life, liberty and security of Lozada. Except
for the bare claims that: (a) Sec. Atienza
mentioned a certain "Ma’[a]m,"70 whom
Lozada speculated to have referred to her,
and (b) Sec. Defensor told Lozada that "the
President was ‘hurting’ from all the media
frenzy,"71 there is nothing in the records that
would sufficiently establish the link of former
President Arroyo to the events that transpired
on 5-6 February 2010, as well as to the
subsequent threats that Lozada and his family
purportedly received.
Second issue: Denial of the issuance of a
subpoena ad testificandum
This Court, in Roco v. Contreras,72 ruled that
for a subpoena to issue, it must first appear
that the person or documents sought to be
presented are prima facie relevant to the issue
subject of the controversy, to wit:
A subpoena is a process directed to a person
requiring him to attend and to testify at the
hearing or trial of an action or at any
investigation conducted under the laws of the
Philippines, or for the taking of his deposition.
In this jurisdiction, there are two (2) kinds of
subpoena, to wit: subpoena ad testificandum
and subpoena duces tecum. The first is used
to compel a person to testify, while the second
is used to compel the production of books,
records, things or documents therein
specified. As characterized in H.C. Liebenow
vs. The Philippine Vegetable Oil Company:
The subpoena duces tecum is, in all respects,
like the ordinary subpoena ad testificandum
with the exception that it concludes with an
injunction that the witness shall bring with him
and produce at the examination the books,
documents, or things described in the
subpoena.
Well-settled is the rule that before a subpoena
duces tecum may issue, the court must first be
satisfied that the following requisites are
present: (1) the books, documents or other
things requested must appear prima facie
relevant to the issue subject of the controversy
 WRITS TO SELF-INCRIMINATION ACJUCO 40
(test of relevancy); and (2) such books must
be reasonably described by the parties to be
readily identified (test of definiteness).73
(Emphasis supplied.)
In the present case, the CA correctly denied
petitioners’ Motion for the Issuance of
Subpoena Ad Testificandum on the ground
that the testimonies of the witnesses sought to
be presented during trial were prima facie
irrelevant to the issues of the case. The court
a quo aptly ruled in this manner:
The alleged acts and statements attributed by
the petitioner to Neri and Abalos are not
relevant to the instant Amparo Petition where
the issue involved is whether or not Lozada’s
right to life, liberty and security was threatened
or continues to be threatened with violation by
the unlawful act/s of the respondents.
Evidence, to be relevant, must have such a
relation to the fact in issue as to induce belief
in its existence or nonexistence. Further, Neri,
Abalos and a certain driver "Jaime" are not
respondents in this Amparo Petition and the
vague allegations averred in the Motion with
respect to them do not pass the test of
relevancy. To Our mind, petitioner appears to
be embarking on a "fishing expedition".
Petitioner should present the aggrieved party
[Lozada], who has been regularly attending
the hearings, to prove the allegations in the
Amparo Petition, instead of dragging the
names of other people into the picture. We
have repeatedly reminded the parties, in the
course of the proceedings, that the instant
Amparo Petition does not involve the
investigation of the ZTE-[NBN] contract.
Petitioner should focus on the fact in issue and
not embroil this Court into said ZTE-NBN
contract, which is now being investigated by
the Senate Blue Ribbon Committee and the
Office of the Ombudsman.74 (Emphasis
supplied.)
All the references of petitioners to either Sec.
Neri or Abalos were solely with respect to the
ZTE-NBN deal, and not to the events that
transpired on 5-6 February 2008, or to the
ensuing threats that petitioners purportedly
received. Although the present action is rooted
from the involvement of Lozada in the said
government transaction, the testimonies of
Sec. Neri or Abalos are nevertheless not prima
facie relevant to the main issue of whether
there was an unlawful act or omission on the
part of respondents that violated the right to
life, liberty and security of Lozada. Thus, the
CA did not commit any reversible error in
denying the Motion for the Issuance of
Subpoena Ad Testificandum.
Third issue: Grant of the privilege of the writ of
amparo
A. Alleged violation of or threat to the right to
life, liberty and security of Lozada
Sections 17 and 18 of the Rule on the Writ of
Amparo requires the parties to establish their
claims by substantial evidence,75 or such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.76
The use of this evidentiary threshold reveals
the clear intent of the framers of the Rule on
the Writ of Amparo to have the equivalent of
an administrative proceeding, albeit judicially
conducted, in addressing amparo
situations.77
In cases where the violation of the right to life,
liberty or security has already ceased, it is
necessary for the petitioner in an amparo
action to prove the existence of a continuing
threat.78 Thus, this Court held in its Resolution
in Razon v. Tagitis:79
Manalo is different from Tagitis in terms of their
factual settings, as enforced disappearance
was no longer a problem in that case. The
enforced disappearance of the brothers
Raymond and Reynaldo Manalo effectively
ended when they escaped from captivity and
surfaced, while Tagitis is still nowhere to be
found and remains missing more than two
years after his reported disappearance. An
Amparo situation subsisted in Manalo,
however, because of the continuing threat to
the brothers’ right to security; the brothers
claimed that since the persons responsible for
their enforced disappearance were still at
large and had not been held accountable, the
former were still under the threat of being once
again abducted, kept captive or even killed,
which threat constituted a direct violation of
their right to security of person.80 (Emphasis
supplied.)
In the present case, the totality of the evidence
adduced by petitioners failed to meet the
 WRITS TO SELF-INCRIMINATION ACJUCO 41
threshold of substantial evidence. Sifting
through all the evidence and allegations
presented, the crux of the case boils down to
assessing the veracity and credibility of the
parties’ diverging claims as to what actually
transpired on 5-6 February 2008. In this
regard, this Court is in agreement with the
factual findings of the CA to the extent that
Lozada was not illegally deprived of his liberty
from the point when he disembarked from the
aircraft up to the time he was led to the
departure area of the airport,81 as he
voluntarily submitted himself to the custody of
respondents:
[Lozada] was one of the first few passengers
to get off the plane because he was instructed
by Secretary Atienza, th[r]ough a phone call
on the night of 04 February 2008, while he was
still in Hong Kong, to proceed directly to the
Bureau of Immigration so that few people
would notice him and he could be facilitated in
going out of the airport without any hassle from
the people of the Senate Sergeant-at-Arms.
Again, [Lozada] stated that he wanted to get
away from the Senate people. [Lozada] even
went to the men’s room of the airport, after he
was allegedly "grabbed", where he made a call
to his brother Arturo, using his Globe phone,
and he was not prevented from making said
call, and was simply advised by the person
who met him at the tube to (sic) "sir, bilisan mo
na". When they proceeded out of the tube and
while walking, [Lozada] heard from the radio
track down, "wag kayo dyan, sir, nandyan
yong mga taga Senado", so they took a detour
and went up to the departure area, did not go
out of the normal arrival area, and proceeded
towards the elevator near the Duty Free Shop
and then down towards the tarmac. Since
[Lozada] was avoiding the people from the
Office of the Senate Sergeant-at-Arms, said
detour appears to explain why they did not get
out at the arrival area, where [Lozada] could
have passed through immigration so that his
passport could be properly stamped.
This Court does not find any evidence on
record that [Lozada] struggled or made an
outcry for help when he was allegedly
"grabbed" or "abducted" at the airport.
[Lozada] even testified that nobody held him,
and they were not hostile to him nor shouted
at him. With noon day clarity, this Court finds
that the reason why [Lozada] was fetched at
the airport was to help him avoid the Senate
contingent, who would arrest and detain him at
the Office of the Senate Sergeant-at-Arms,
until such time that he would appear and give
his testimony, pursuant to the Order of the
Senate on the NBN-ZTE Project. [Lozada]
clearly knew this because at that time, it was
still his decision not to testify before the
Senate. He agreed with that plan.82
(Emphases supplied.)
The foregoing statements show that Lozada
personally sought the help of Sec. Atienza to
avoid the Senate personnel, and thus knew
that the men who met him at the airport were
there to aid him in such objective. Surely, the
actions of Lozada evinced knowledge and
voluntariness, uncharacteristic of someone
who claims to have been forcibly abducted.
However, these men’s subsequent acts of
directing Lozada to board the vehicle and
driving him around, without disclosing the
exact purpose thereof, appear to be beyond
what he had consented to and requested from
Sec. Atienza. These men neither informed him
of where he was being transported nor
provided him complete liberty to contact his
family members to assure them of his safety.
These acts demonstrated that he lacked
absolute control over the situation, as well as
an effective capacity to challenge their
instructions.
Nevertheless, it must be emphasized that if
Lozada had in fact been illegally restrained, so
much so that his right to liberty and security
had been violated, the acts that manifested
this restraint had already ceased and has
consequently rendered the grant of the
privilege of the writ of amparo moot. Whether
or not Lozada was deprived of his liberty from
the point when he was led inside the vehicle
waiting for him at the airport up to the time he
was taken to La Salle Green Hills, petitioners’
assertions that Lozada and his family continue
to suffer various threats from respondents
remain unproven. The CA correctly found as
follows:
The supposed announcement of General
Razon over the radio that [Lozada] was in the
custody of the PNP can neither be construed
as a threat to [Lozada’s] life, liberty and
security. Certainly, no person in his right mind
 WRITS TO SELF-INCRIMINATION ACJUCO 42
would make that kind of media announcement
if his intent was indeed to threaten somebody’s
life, liberty and security.
xxx xxx xxx
He claims that he is threatened by the alleged
presence of armed men riding in motorcycle
passing outside the De La Salle premises
where he and his family are staying and by
alleged threats of armed men around him at
places where he went to. Again, these alleged
threats were not proven by any evidence at all,
as having originated from any of the
respondents.
[Lozada] also considers the installation of the
surveillance camera at the De La Salle and at
St. Scholastica as indirect threat to his right to
life, liberty and security. He claims that these
are spy cameras. However, save for
[Lozada’s] self-serving claim, he simply failed
to prove that they were installed or ordered
installed by the respondents for the purpose of
threatening his right to life, liberty and security.
[Lozada] further maintains that there is an
alleged trend, i.e., wherever he goes, there is
a bomb threat. There were bomb threats in the
places where he went to like in [the
Polytechnic University of the Philippines],
Dagupan, Cebu and Bohol. However,
[Lozada] himself testified that he did not try to
ascertain where the bomb threats emanated.
Plainly, there is no evidence on record that the
bomb threats were made by the respondents
or done upon their instigation.
Moreover, [Lozada] views the pronouncement
of the Secretary of Justice that he was put on
the watch list of the Bureau of Immigration as
a threat to his life, liberty and security. This
alleged threat is again unsupported by
evidence, as in fact, [Lozada] testified that he
did not ascertain from the Bureau of
Immigration whether his name was actually in
the official watch list of the Bureau. At any rate,
the Secretary of Justice is not one of the
respondents in the amparo petition, and there
is no showing in the record that it was the
respondents who ordered the same for the
purpose of threatening him.
[Lozada] harps on the filing of alleged frivolous
cases against him and his family as threat to
his life, liberty and security. xxx However,
[Lozada] himself testified that he does not
know whether the respondents or any of the
respondents ordered the filing of these cases
against him. In any event, said purported
cases are to be determined based on their own
merits and are clearly beyond the realm of the
instant amparo petition filed against the
respondents.83 (Emphasis supplied.)
Finally, petitioners insist that while they were
able to sufficiently establish their case by the
required evidentiary standard, respondents
failed to discharge their burden to prove their
defenses by substantial evidence and to show
that respondents exercised extraordinary
diligence as required by the Rule on the Writ
of Amparo.84 This Court has squarely passed
upon this contention in Yano v. Sanchez,85 to
wit:
The failure to establish that the public official
observed extraordinary diligence in the
performance of duty does not result in the
automatic grant of the privilege of the amparo
writ. It does not relieve the petitioner from
establishing his or her claim by substantial
evidence.
Thus, in amparo actions, petitioners must
establish their claims by substantial evidence,
and they cannot merely rely on the supposed
failure of respondents to prove either their
defenses or their exercise of extraordinary
diligence. In this case, the totality of the
evidence presented by petitioners fails to meet
the requisite evidentiary threshold, and the
privilege of the writ of amparo has already
been rendered moot and academic by the
cessation of the restraint to Lozada’s liberty.
B. Propriety of the privilege of the writ of
amparo and its interim reliefs
As previously discussed, there is no basis to
grant Lozada the privilege of the writ of
amparo, considering that the illegal restraint
alleged in this case had already ceased and
there is no imminent or continuing restriction
on his liberty. In Castillo v. Cruz,86 this Court
held as follows:
Although respondents’ release from
confinement does not necessarily hinder
supplication for the writ of amparo, absent any
 WRITS TO SELF-INCRIMINATION ACJUCO 43
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.
(Emphasis supplied.)1âwphi1
Further, it appears that Lozada had already
filed before the Department of Justice (DOJ) a
Complaint charging respondents with
kidnapping and attempted murder, docketed
as I.S. No. 2008-467.87 In this regard, this
Court’s ruling in Rubrico v. Arroyo88 is worth
considering:
First, a criminal complaint for kidnapping and,
alternatively, for arbitrary detention rooted in
the same acts and incidents leading to the
filing of the subject amparo petition has been
instituted with the OMB, docketed as OMB-P-
C-O7-0602-E. The usual initial steps to
determine the existence of a prima facie case
against the five (5) impleaded individuals
suspected to be actually involved in the
detention of Lourdes have been set in motion.
It must be pointed out, though, that the filing of
the OMB complaint came before the effectivity
of the Amparo Rule on October 24, 2007.
Second, Sec. 22 of the Amparo Rule
proscribes the filing of an amparo petition
should a criminal action have, in the
meanwhile, been commenced. The
succeeding Sec. 23, on the other hand,
provides that when the criminal suit is filed
subsequent to a petition for amparo, the
petition shall be consolidated with the criminal
action where the Amparo Rule shall
nonetheless govern the disposition of the relief
under the Rule. Under the terms of said Sec.
22, the present petition ought to have been
dismissed at the outset. But as things stand,
the outright dismissal of the petition by force of
that section is no longer technically feasible in
light of the interplay of the following factual
mix: (1) the Court has, pursuant to Sec. 6 of
the Rule, already issued ex parte the writ of
amparo; (2) the CA, after a summary hearing,
has dismissed the petition, but not on the basis
of Sec. 22; and (3) the complaint in OMB-P-C-
O7-0602-E named as respondents only those
believed to be the actual abductors of
Lourdes, while the instant petition impleaded,
in addition, those tasked to investigate the
kidnapping and detention incidents and their
superiors at the top. Yet, the acts and/or
omissions subject of the criminal complaint
and the amparo petition are so linked as to call
for the consolidation of both proceedings to
obviate the mischief inherent in a multiplicity-
of-suits situation.
Given the above perspective and to fully apply
the beneficial nature of the writ of amparo as
an inexpensive and effective tool to protect
certain rights violated or threatened to be
violated, the Court hereby adjusts to a degree
the literal application of Secs. 22 and 23 of the
Amparo Rule to fittingly address the situation
obtaining under the premises. Towards this
end, two things are at once indicated: (1) the
consolidation of the probe and fact-finding
aspects of the instant petition with the
investigation of the criminal complaint before
the OMB; and (2) the incorporation in the same
criminal complaint of the allegations in this
petition bearing on the threats to the right to
security. Withal, the OMB should be furnished
copies of the investigation reports to aid that
body in its own investigation and eventual
resolution of OMB-P-C-O7-0602-E. Then, too,
the OMB shall be given easy access to all
pertinent documents and evidence, if any,
adduced before the CA. Necessarily, Lourdes,
as complainant in OMB-P-C-O7-0602-E,
should be allowed, if so minded, to amend her
basic criminal complaint if the consolidation of
cases is to be fully effective. (Emphasis
supplied.)
Thus, if the Complaint filed before the DOJ had
already progressed into a criminal case, then
the latter action can more adequately dispose
of the allegations made by petitioners. After all,
one of the ultimate objectives of the writ of
amparo as a curative remedy is to facilitate the
subsequent punishment of perpetrators.89 On
the other hand, if there is no actual criminal
case lodged before the courts, then the denial
of the Petition is without prejudice to the filing
of the appropriate administrative, civil or
criminal case, if applicable, against those
individuals whom Lozada deems to have
unduly restrained his liberty.
Finally, with respect to the interim reliefs
sought by petitioners, this Court, in Yano v.
Sanchez,90 declined to grant the prayer for
the issuance of a TPO, as well as Inspection
 WRITS TO SELF-INCRIMINATION ACJUCO 44

and Production Orders, upon a finding that the

implicated public officials were not
accountable for the disappearance subject of
that case. Analogously, it would be
incongruous to grant herein petitioners’ prayer
for a TPO and Inspection and Production
Orders and at the same time rule that there no
longer exists any imminent or continuing threat
to Lozada’s right to life, liberty and security.
Thus, there is no basis on which a prayer for
the issuance of these interim reliefs can be
anchored.

WHEREFORE, the instant petition is DENIED

for being moot and academic. The Court of
Appeals’ denial of the privilege of the writ of
amparo is hereby AFFIRMED.

SO ORDERED.
 WRITS TO SELF-INCRIMINATION ACJUCO 45
G.R. No. 184467 June 19, 2012
EDGARDO NAVIA,1 RUBEN DIO,2 and
ANDREW BUISING, Petitioners,
vs.
VIRGINIA PARDICO, for and in behalf and
in representation of BENHUR V. PARDICO
Respondent.
DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in
enforced disappearance cases, allegation and
proof that the persons subject thereof are
missing are not enough. It must also be shown
by the required quantum of proof that their
disappearance was carried out by, "or with the
authorization, support or acquiescence of, [the
government] or a political organization,
followed by a refusal to acknowledge [the
same or] give information on the fate or
whereabouts of [said missing] persons."3
This petition for review on certiorari4 filed in
relation to Section 19 of A.M. No. 07-9-12-SC5
challenges the July 24, 2008 Decision6 of the
Regional Trial Court (RTC), Branch 20,
Malolos City which granted the Petition for Writ
of Amparo7 filed by herein respondent against
the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a
vehicle of Asian Land Strategies Corporation8
(Asian Land) arrived at the house of Lolita M.
Lapore (Lolita) located at 7A Lot 9, Block 54,
Grand Royale Subdivision, Barangay Lugam,
Malolos City. The arrival of the vehicle
awakened Lolita’s son, Enrique Lapore
(Bong), and Benhur Pardico (Ben), who were
then both staying in her house. When Lolita
went out to investigate, she saw two uniformed
guards disembarking from the vehicle. One of
them immediately asked Lolita where they
could find her son Bong. Before Lolita could
answer, the guard saw Bong and told him that
he and Ben should go with them to the security
office of Asian Land because a complaint was
lodged against them for theft of electric wires
and lamps in the subdivision.9
Shortly thereafter, Bong, Lolita and Ben were
in the office of the security department of Asian
Land also located in Grand Royale
Subdivision.10 The supervisor of the security
guards, petitioner Edgardo Navia (Navia), also
arrived thereat.
As to what transpired next, the parties’
respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and
Ben to their office because they received a
report from a certain Mrs. Emphasis, a
resident of Grand Royale Subdivision, that she
saw Bong and Ben removing a lamp from a
post in said subdivision.11 The reported
unauthorized taking of the lamp was relayed
thru radio to petitioners Ruben Dio (Dio) and
Andrew Buising (Buising), who both work as
security guards at the Asian Land security
department. Following their department’s
standard operating procedure, Dio and
Buising entered the report in their logbook and
proceeded to the house of Mrs. Emphasis. It
was there where Dio and Buising were able to
confirm who the suspects were. They thus
repaired to the house of Lolita where Bong and
Ben were staying to invite the two suspects to
their office. Bong and Ben voluntarily went with
them.
At the security office, Dio and Buising
interviewed Bong and Ben. The suspects
admitted that they took the lamp but clarified
that they were only transferring it to a post
nearer to the house of Lolita.12 Soon, Navia
arrived and Buising informed him that the
complainant was not keen in participating in
the investigation. Since there was no
complainant, Navia ordered the release of
Bong and Ben. Bong then signed a statement
to the effect that the guards released him
without inflicting any harm or injury to him.13
His mother Lolita also signed the logbook
below an entry which states that she will never
again harbor or entertain Ben in her house.
Thereafter, Lolita and Bong left the security
office.
Ben was left behind as Navia was still talking
to him about those who might be involved in
the reported loss of electric wires and lamps
within the subdivision. After a brief discussion
 WRITS TO SELF-INCRIMINATION ACJUCO 46
though, Navia allowed Ben to leave. Ben also
affixed his signature on the logbook to affirm
the statements entered by the guards that he
was released unharmed and without any
injury.14
Upon Navia’s instructions, Dio and Buising
went back to the house of Lolita to make her
sign the logbook as witness that they indeed
released Ben from their custody. Lolita asked
Buising to read aloud that entry in the logbook
where she was being asked to sign, to which
Buising obliged. Not contented, Lolita put on
her reading glasses and read the entry in the
logbook herself before affixing her signature
therein. After which, the guards left.
Subsequently, petitioners received an
invitation15 from the Malolos City Police
Station requesting them to appear thereat on
April 17, 2008 relative to the complaint of
Virginia Pardico (Virginia) about her missing
husband Ben. In compliance with the
invitation, all three petitioners appeared at the
Malolos City Police Station. However, since
Virginia was not present despite having
received the same invitation, the meeting was
reset to April 22, 2008.16
On April 22, 2008, Virginia attended the
investigation. Petitioners informed her that
they released Ben and that they have no
information as to his present whereabouts.17
They assured Virginia though that they will
cooperate and help in the investigation of her
missing husband.18
Version of the Respondent
According to respondent, Bong and Ben were
not merely invited. They were unlawfully
arrested, shoved into the Asian Land vehicle
and brought to the security office for
investigation. Upon seeing Ben at the security
office, Navia lividly grumbled "Ikaw na
naman?"19 and slapped him while he was still
seated. Ben begged for mercy, but his pleas
were met with a flurry of punches coming from
Navia hitting him on different parts of his
body.20 Navia then took hold of his gun,
looked at Bong, and said, "Wala kang nakita at
wala kang narinig, papatayin ko na si Ben."21
Bong admitted that he and Ben attempted to
take the lamp. He explained that the area
where their house is located is very dark and
his father had long been asking the
administrator of Grand Royale Subdivision to
install a lamp to illumine their area. But since
nothing happened, he took it upon himself to
take a lamp from one of the posts in the
subdivision and transfer it to a post near their
house. However, the lamp Bong got was no
longer working. Thus, he reinstalled it on the
post from which he took it and no longer
pursued his plan. 22
Later on, Lolita was instructed to sign an entry
in the guard’s logbook where she undertook
not to allow Ben to stay in her house
anymore.23 Thereafter, Navia again asked
Lolita to sign the logbook. Upon Lolita’s inquiry
as to why she had to sign again, Navia
explained that they needed proof that they
released her son Bong unharmed but that Ben
had to stay as the latter’s case will be
forwarded to the barangay. Since she has
poor eyesight, Lolita obligingly signed the
logbook without reading it and then left with
Bong.24 At that juncture, Ben grabbed Bong
and pleaded not to be left alone. However,
since they were afraid of Navia, Lolita and
Bong left the security office at once leaving
Ben behind.25
Moments after Lolita and Bong reached their
house, Buising arrived and asked Lolita to sign
the logbook again. Lolita asked Buising why
she had to sign again when she already twice
signed the logbook at the headquarters.
Buising assured her that what she was about
to sign only pertains to Bong’s release. Since
it was dark and she has poor eyesight, Lolita
took Buising’s word and signed the logbook
without, again, reading what was written in it.
26
The following morning, Virginia went to the
Asian Land security office to visit her husband
Ben, but only to be told that petitioners had
already released him together with Bong the
night before. She then looked for Ben, asked
around, and went to the barangay. Since she
could not still find her husband, Virginia
reported the matter to the police.
In the course of the investigation on Ben’s
disappearance, it dawned upon Lolita that
petitioners took advantage of her poor
eyesight and naivete. They made her sign the
 WRITS TO SELF-INCRIMINATION ACJUCO 47
logbook as a witness that they already
released Ben when in truth and in fact she
never witnessed his actual release. The last
time she saw Ben was when she left him in
petitioners’ custody at the security office.27
Exasperated with the mysterious
disappearance of her husband, Virginia filed a
Petition for Writ of Amparo28 before the RTC
of Malolos City. Finding the petition sufficient
in form and substance, the amparo court
issued an Order29 dated June 26, 2008
directing, among others, the issuance of a writ
of amparo and the production of the body of
Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of
the Supreme Court Resolution [in] A.M. No.
07-[9]-12-SC, also known as "The Rule On
The Writ Of Amparo", let a writ of amparo be
issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia,
Ruben Dio and Andrew Buising of the Asian
Land Security Agency to produce before the
Court the body of aggrieved party Benhur
Pardico, on Monday, June 30, 2008, at 10:30
a.m.;
(2) ORDERING the holding of a summary
hearing of the petition on the aforementioned
date and time, and DIRECTING the
[petitioners] to personally appear thereat;
(3) COMMANDING [petitioners] Edgardo
Navia, Ruben Dio and Andrew Buising to file,
within a non-extendible period of seventy-two
(72) hours from service of the writ, a verified
written return with supporting affidavits which
shall, among other things, contain the
following:
a) The lawful defenses to show that the
[petitioners] did not violate or threaten with
violation the right to life, liberty and security of
the aggrieved party, through any act or
omission;
b) The steps or actions taken by the
[petitioners] to determine the fate or
whereabouts of the aggrieved party and the
person or persons responsible for the threat,
act or omission; and
c) All relevant information in the possession of
the [petitioners] pertaining to the threat, act or
omission against the aggrieved party.
(4) GRANTING, motu proprio, a Temporary
Protection Order prohibiting the [petitioners],
or any persons acting for and in their behalf,
under pain of contempt, from threatening,
harassing or inflicting any harm to
[respondent], his immediate family and any
[member] of his household.
The Branch Sheriff is directed to immediately
serve personally on the [petitioners], at their
address indicated in the petition, copies of the
writ as well as this order, together with copies
of the petition and its annexes.30
A Writ of Amparo31 was accordingly issued
and served on the petitioners on June 27,
2008.32 On June 30, 2008, petitioners filed
their Compliance33 praying for the denial of
the petition for lack of merit.
A summary hearing was thereafter conducted.
Petitioners presented the testimony of Buising,
while Virginia submitted the sworn
statements34 of Lolita and Enrique which the
two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the
challenged Decision35 granting the petition. It
disposed as follows:
WHEREFORE, the Court hereby grants the
privilege of the writ of amparo, and deems it
proper and appropriate, as follows:
(a) To hereby direct the National Bureau of
Investigation (NBI) to immediately conduct a
deep and thorough investigation of the
[petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising in connection with the
circumstances surrounding the disappearance
of [Benhur] Pardico, utilizing in the process, as
part of the investigation, the documents
forming part of the records of this case;
(b) To hereby direct the NBI to extend to the
family of [Benhur] Pardico and the witnesses
who testified in this case protection as it may
deem necessary to secure their safety and
security; and
 WRITS TO SELF-INCRIMINATION ACJUCO 48
(c) To hereby direct the Office of the Provincial
Prosecutor of Bulacan to investigate the
circumstances concerning the legality of the
arrest of [Benhur] Pardico by the [petitioners]
in this case, utilizing in the process, as part of
said investigation, the pertinent documents
and admissions forming part of the record of
this case, and take whatever course/s of action
as may be warranted.
Furnish immediately copies of this decision to
the NBI, through the Office of Director Nestor
Mantaring, and to the Provincial Prosecutor of
Bulacan.
SO ORDERED.36
Petitioners filed a Motion for
Reconsideration37 which was denied by the
trial court in an Order38 dated August 29,
2008.
Hence, this petition raising the following issues
for our consideration:
4.1. WHETHER X X X THE HONORABLE
TRIAL COURT GRAVELY ERRED IN
RULING THAT RESPONDENT IS ENTITLED
TO THE PRIVILEGE OF THE WRIT OF
AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS
ABLE TO ESTABLISH THAT PETITIONERS
HAVE COMMITTED OR ARE COMMITTING
ACTS IN VIOLATION OF HER HUSBAND’S
RIGHT TO LIFE, LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT
SUFFICIENTLY ESTABLISHED THE FACT
OF THE DISAPPEARANCE OF BENHUR
PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS
ABLE TO ESTABLISH THAT THE ALLEGED
DISAPPEARANCE OF BENHUR PARDICO
WAS AT THE INSTANCE OF HEREIN
PETITIONERS.39
Petitioners’ Arguments
Petitioners essentially assail the sufficiency of
the amparo petition. They contend that the writ
of amparo is available only in cases where the
factual and legal bases of the violation or
threatened violation of the aggrieved party’s
right to life, liberty and security are clear.
Petitioners assert that in the case at bench,
Virginia miserably failed to establish all these.
First, the petition is wanting on its face as it
failed to state with some degree of specificity
the alleged unlawful act or omission of the
petitioners constituting a violation of or a threat
to Ben’s right to life, liberty and security. And
second, it cannot be deduced from the
evidence Virginia adduced that Ben is missing;
or that petitioners had a hand in his alleged
disappearance. On the other hand, the entries
in the logbook which bear the signatures of
Ben and Lolita are eloquent proof that
petitioners released Ben on March 31, 2008 at
around 10:30 p.m. Petitioners thus posit that
the trial court erred in issuing the writ and in
holding them responsible for Ben’s
disappearance.
Our Ruling
Virginia’s Petition for Writ of Amparo is fatally
defective and must perforce be dismissed, but
not for the reasons adverted to by the
petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ
of Amparo was promulgated to arrest the
rampant extralegal killings and enforced
disappearances in the country. Its purpose is
to provide an expeditious and effective relief
"to any person whose right to life, liberty and
security is violated or threatened with violation
by an unlawful act or omission of a public
official or employee, or of a private individual
or entity." 40
Here, Ben’s right to life, liberty and security is
firmly settled as the parties do not dispute his
identity as the same person summoned and
questioned at petitioners’ security office on the
night of March 31, 2008. Such uncontroverted
fact ipso facto established Ben’s inherent and
constitutionally enshrined right to life, liberty
and security. Article 641 of the International
Covenant on Civil and Political Rights42
recognizes every human being’s inherent right
to life, while Article 943 thereof ordains that
everyone has the right to liberty and security.
The right to life must be protected by law while
the right to liberty and security cannot be
impaired except on grounds provided by and
in accordance with law. This overarching
 WRITS TO SELF-INCRIMINATION ACJUCO 49
command against deprivation of life, liberty
and security without due process of law is also
embodied in our fundamental law.44
The pivotal question now that confronts us is
whether Ben’s disappearance as alleged in
Virginia’s petition and proved during the
summary proceedings conducted before the
court a quo, falls within the ambit of A.M. No.
07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC
provides:
SECTION 1. Petition. – The petition for a writ
of amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
(Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-
SC’s coverage, said Rules does not, however,
define extralegal killings and enforced
disappearances. This omission was
intentional as the Committee on Revision of
the Rules of Court which drafted A.M. No. 07-
9-12-SC chose to allow it to evolve through
time and jurisprudence and through
substantive laws as may be promulgated by
Congress.45 Then, the budding jurisprudence
on amparo blossomed in Razon, Jr. v.
Tagitis46 when this Court defined enforced
disappearances. The Court in that case
applied the generally accepted principles of
international law and adopted the International
Convention for the Protection of All Persons
from Enforced Disappearance’s definition of
enforced disappearances, as "the arrest,
detention, abduction or any other form of
deprivation of liberty by agents of the State or
by persons or groups of persons acting with
the authorization, support or acquiescence of
the State, followed by a refusal to
acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the
disappeared person, which place such a
person outside the protection of the law."47
Not long thereafter, another significant
development affecting A.M. No. 07-9-12-SC
came about after Congress enacted Republic
Act (RA) No. 985148 on December 11, 2009.
Section 3(g) thereof defines enforced or
involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of
persons" means the arrest, detention, or
abduction of persons by, or with the
authorization, support or acquiescence of, a
State or a political organization followed by a
refusal to acknowledge that deprivation of
freedom or to give information on the fate or
whereabouts of those persons, with the
intention of removing from the protection of the
law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo49
where Justice Arturo D. Brion wrote in his
Separate Opinion that with the enactment of
RA No. 9851, "the Rule on the Writ of Amparo
is now a procedural law anchored, not only on
the constitutional rights to the rights to life,
liberty and security, but on a concrete statutory
definition as well of what an ‘enforced or
involuntary disappearance’ is."50 Therefore,
A.M. No. 07-9-12-SC’s reference to enforced
disappearances should be construed to mean
the enforced or involuntary disappearance of
persons contemplated in Section 3(g) of RA
No. 9851. Meaning, in probing enforced
disappearance cases, courts should read A.M.
No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced
disappearance, thus, we can derive the
following elements that constitute it:
(a) that there be an arrest, detention,
abduction or any form of deprivation of liberty;
(b) that it be carried out by, or with the
authorization, support or acquiescence of, the
State or a political organization;
(c) that it be followed by the State or political
organization’s refusal to acknowledge or give
information on the fate or whereabouts of the
person subject of the amparo petition; and,
(d) that the intention for such refusal is to
remove subject person from the protection of
the law for a prolonged period of time.
As thus dissected, it is now clear that for the
protective writ of amparo to issue, allegation
 WRITS TO SELF-INCRIMINATION ACJUCO 50
and proof that the persons subject thereof are
missing are not enough. It must also be shown
and proved by substantial evidence that the
disappearance was carried out by, or with the
authorization, support or acquiescence of, the
State or a political organization, followed by a
refusal to acknowledge the same or give
information on the fate or whereabouts of said
missing persons, with the intention of
removing them from the protection of the law
for a prolonged period of time. Simply put, the
petitioner in an amparo case has the burden of
proving by substantial evidence the
indispensable element of government
participation.
In the present case, we do not doubt Bong’s
testimony that Navia had a menacing attitude
towards Ben and that he slapped and inflicted
fistic blows upon him. Given the
circumstances and the pugnacious character
of Navia at that time, his threatening
statement, "Wala kang nakita at wala kang
narinig, papatayin ko na si Ben," cannot be
taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is
nothing on record which would support
petitioners’ assertion that they released Ben
on the night of March 31, 2008 unscathed from
their wrath. Lolita sufficiently explained how
she was prodded into affixing her signatures in
the logbook without reading the entries
therein. And so far, the information petitioners
volunteered are sketchy at best, like the
alleged complaint of Mrs. Emphasis who was
never identified or presented in court and
whose complaint was never reduced in
writing.1âwphi1
But lest it be overlooked, in an amparo petition,
proof of disappearance alone is not enough. It
is likewise essential to establish that such
disappearance was carried out with the direct
or indirect authorization, support or
acquiescence of the government. This
indispensable element of State participation is
not present in this case. The petition does not
contain any allegation of State complicity, and
none of the evidence presented tend to show
that the government or any of its agents
orchestrated Ben’s disappearance. In fact,
none of its agents, officials, or employees were
impleaded or implicated in Virginia’s amparo
petition whether as responsible or accountable
persons.51 Thus, in the absence of an
allegation or proof that the government or its
agents had a hand in Ben’s disappearance or
that they failed to exercise extraordinary
diligence in investigating his case, the Court
will definitely not hold the government or its
agents either as responsible or accountable
persons.
We are aware that under Section 1 of A.M. No.
07-9-12-SC a writ of amparo may lie against a
private individual or entity. But even if the
person sought to be held accountable or
responsible in an amparo petition is a private
individual or entity, still, government
involvement in the disappearance remains an
indispensable element. Here, petitioners are
mere security guards at Grand Royale
Subdivision in Brgy. Lugam, Malolos City and
their principal, the Asian Land, is a private
entity. They do not work for the government
and nothing has been presented that would
link or connect them to some covert police,
military or governmental operation. As
discussed above, to fall within the ambit of
A.M. No. 07-9-12-SC in relation to RA No.
9851, the disappearance must be attended by
some governmental involvement. This
hallmark of State participation differentiates an
enforced disappearance case from an
ordinary case of a missing person.
WHEREFORE, the July 24, 2008 Decision of
the Regional Trial Court, Branch 20, Malolos
City, is REVERSED and SET ASIDE. The
Petition for Writ of Amparo filed by Virginia
Pardico is hereby DISMISSED.
SO ORDERED.
 WRITS TO SELF-INCRIMINATION ACJUCO 51
G.R. No. 193652 August 5, 2014
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 died8 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
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
 WRITS TO SELF-INCRIMINATION ACJUCO 52
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 to file
their verified written return to the writ pursuant
to Section 919 of the Amparo Rule, within five
working days from the service of the writ.
The respondents complied with the writ and
filed their Return20 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.
 WRITS TO SELF-INCRIMINATION ACJUCO 53
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 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 laws29 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:
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
 WRITS TO SELF-INCRIMINATION ACJUCO 54
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. 985134 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, the respondent DSWD officers never
concealed Baby Julian's whereabouts. In fact,
Christina obtained a copy of the DSWD's May
28, 2010 Memorandum35 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.
 WRITS TO SELF-INCRIMINATION ACJUCO 55
SPEEDY DISPOSITION OF CASES
G.R. Nos. 146368-69 October 18,
2004
MADELEINE MENDOZA-ONG, petitioner,
vs.
HON. SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, respondents.
RESOLUTION
QUISUMBING, J.:
In this Motion for Reconsideration,1 petitioner
Madeleine Mendoza-Ong seeks a reversal of
this Court’s October 23, 2003, Resolution
dismissing her petition for certiorari and
upholding the Sandiganbayan’s denial of her
motion to quash. She contends that the Court
erred in:
I facts and circumstances peculiar to each
…holding that the information filed against
[her] in Criminal Case No. 23848 has alleged
the essential ingredients of the offense
charged [and in]
II
…failing to resolve the fundamental issue of
whether the excessive or inordinate delay in
the conduct of the preliminary investigation
and filing of the informations after three (3)
years had deprived [her] of her Constitutional
and statutory right to due process and speedy
determinations and disposition of the cases
against her warranting dismissal thereof.2
Concerning the first ground abovecited, the
Court notes that the motion contains merely a
reiteration or rehash of arguments already
submitted to the Court and found to be without
merit. Petitioner fails to raise any new and
substantial arguments, and no cogent reason
exists to warrant a reconsideration of the
Court’s Resolution. It would be a useless ritual
for the Court to reiterate itself.3
As to the second ground, we find it raises
arguments that have already been passed
upon. Reconsideration on that ground may
also be denied summarily. Nevertheless, we
shall take time to explain why her motion must
be set aside for lack of merit, if only to clear
any lingering doubt on the matter.
Petitioner laments that although the complaint
was filed with the Office of the Deputy
Ombudsman for the Visayas as early as
December 13, 1994, the informations were
filed with the Sandiganbayan only on August
1, 1997, and the amended informations, on
October 27, 1998. According to her, the delay
of nearly three years to finish the preliminary
investigation violated her constitutional rights
to due process and speedy disposition of
cases. The established facts of this case,
however, show no such violation.
The right to speedy disposition of cases, like
the right to speedy trial, is violated only when
the proceedings are attended by vexatious,
capricious and oppressive delays.4 In the
determination of whether said right has been
violated, particular regard must be taken of the
case.5 The conduct of both the prosecution
and the defendant, the length of the delay, the
reasons for such delay, the assertion or failure
to assert such right by the accused, and the
prejudice caused by the delay are the factors
to consider and balance.6 A mere
mathematical reckoning of time involved
would not be sufficient.7
In this case, the Graft Investigation Officer
released his resolution finding probable cause
against petitioner on August 16, 1995, less
than six months from the time petitioner and
her co-accused submitted their counter-
affidavits. On October 30, 1995, only two and
a half months later, Ombudsman Aniano
Desierto had reviewed the case and had
approved the resolution. Contrary to
petitioner’s contention, the lapse of only ten
months from the filing of the complaint on
December 13, 1994, to the approval of the
resolution on October 30, 1995, is by no
means oppressive. "Speedy disposition of
cases" is consistent with reasonable delays. 8
The Court takes judicial notice of the fact that
the nature of the Office of the Ombudsman
encourages individuals who clamor for
efficient government service to lodge freely
their complaints against alleged wrongdoing of
government personnel.9 A steady stream of
cases reaching the Ombudsman inevitably
results.10 Naturally, disposition of those cases
 WRITS TO SELF-INCRIMINATION ACJUCO 56
would take some time. Moreover, petitioner
herself had contributed to the alleged delay
when she asked for extension of time to file her
counter-affidavit.
That the informations were filed only on
August 1, 1997, also did not violate petitioner’s
constitutional rights. The delay was not without
valid reasons. The Special Prosecutor in
charge of preparing the informations felt a
genuine need to specify in the informations (1)
the value of the five drums of fuel petitioner
received as gift in violation of the anti-graft law
and (2) the amount of the subsistence
allowance of heavy-equipment operators that
the municipality of Laoang, Northern Samar,
paid for when petitioner used heavy
equipment rented by the municipality to
develop her private property. The
recommendation to specify these two amounts
then had to undergo levels of review and was
approved by Ombudsman Desierto only on
January 29, 1996. Unfortunately, the needed
information was not in the records, so the
Deputy Special Prosecutor sought it from the
Office of the Deputy Ombudsman for the
Visayas. As that office also did not possess the
needed information, it issued an Order on
June 10, 1996, directing petitioner to supply
the needed information.
When petitioner received a copy of the Order,
however, she sought additional time to comply
with the Order. She waited for two months
before filing on August 23, 1996, a verified
statement supplying none of the information
required of her. She claimed that the five
drums of fuel were merely donated to her and
that she did not know their value. She also
alleged that it was she and her husband, and
not the government, who spent for the
subsistence allowance of the heavy-
equipment operator in the development of her
private property. She did not object to the
delay in the termination of the proceedings
against her, nor did she seek at that time to
expedite its resolution.
Petitioner’s refusal to supply the information
prompted the handling investigator at the
Office of the Deputy Ombudsman for the
Visayas to recommend on August 28, 1996,
that the price of the five drums of fuel be
estimated instead. Notably, the Office of the
Special Prosecutor could have filed the
informations then, but petitioner had filed with
the said office a motion for reassessment of
evidence on June 25, 1996, and a
supplemental motion on August 20, 1996.
These motions, which incidentally also failed
to raise the issue of delay, effectively
suspended the filing of the informations.
Subsequently, the case had to be reassigned
to another Special Prosecutor because the
original handling prosecutor was appointed
Resident Ombudsman for the Bureau of
Internal Revenue. Petitioner’s motion for
reassessment was resolved only on June 27,
1997. The resolution again went up for further
review.
Considering the number of times that the case
had to be reviewed, the levels of review that
the case had to undergo, and petitioner’s own
motions for additional time, the period that
lapsed -- roughly two years and five months
(from the time petitioner and her co-accused
submitted their counter-affidavits on March 29,
1995, to the time the informations were filed on
August 1, 1997) to terminate the proceedings
against petitioner -- could not be considered
vexatious, capricious, and oppressive delay.
They were necessitated by exigency of the
actions taken on the case. The period to
terminate the proceedings, in our view, had not
violated petitioner’s constitutionally
guaranteed rights to due process and to a
speedy disposition of cases.11
Neither could the delay be said to have been
prejudicial to her considering that she herself
is guilty of delay.12 The Court has held that if
the long delay in the termination of the
preliminary investigation was not solely the
prosecution’s fault, but was also due to
incidents attributable to the accused and his
counsel, the right of the accused to speedy
disposition of cases is not violated.13
Petitioner cannot now seek the protection of
the law to benefit from what she now considers
the adverse effects of her own conduct in this
case.
Petitioner’s reliance on the doctrines in Tatad
v. Sandiganbayan,14 Duterte v.
Sandiganbayan,15 and Angchangco, Jr. v.
Ombudsman16 is misplaced.
 WRITS TO SELF-INCRIMINATION ACJUCO 57

In Tatad v. Sandiganbayan, the cases against

petitioner remained dormant for almost three Unlike in the Tatad, Duterte, and Angchangco,
years. In ruling that the long delay violated not Jr., cases where the delays were manifestly
only Tatad’s constitutional right to due process oppressive, the facts of this case do not evince
but also his right to speedy disposition of the vexatious, capricious and oppressive delay in
cases against him, the Court considered three the conduct of the preliminary investigation.
factors. First, political motivation played a vital There appears, therefore, no persuasive much
role in activating and propelling the less compelling reason to grant in this case the
prosecutorial process. Second, there was a same radical relief granted in those three
blatant departure from established procedures cases that petitioner cited.19
prescribed by law for the conduct of a
preliminary investigation. And third, the long WHEREFORE, petitioner’s Motion for
delay in resolving the preliminary investigation Reconsideration is hereby DENIED for lack of
could not be justified on the basis of the merit.
records.17
SO ORDERED.
Worth noting, in Duterte v. Sandiganbayan,
petitioners were denied the right to a
preliminary investigation altogether. They
were not served copies of the complaint-
affidavits and were not given the chance to file
counter-affidavits. The Graft Investigator
merely required them to comment on a civil
complaint against them and on a Special Audit
Report of the Commission on Audit, both of
which were not equivalent to the complaint-
affidavits required by the applicable
administrative rules. In fact, the petitioners
were unaware and were never informed that a
preliminary investigation was being conducted
against them. The recommendations in the
COA Special Audit Report were already
accepted even before the report came out,
and the civil complaint had already long been
dismissed before the Graft Investigator
required petitioner’s comment on it.

Additionally, in Duterte, although the

petitioners had filed the manifestation in lieu of
the required comment on February 18, 1992,
it was only on February 22, 1996, or four years
later, that they received the resolution
recommending the filing of informations
against them. Then, also, informations were
filed against petitioners in that case even in the
absence of sufficient ground to hold them
liable for the crime charged.

In Angchangco, Jr. v. Ombudsman, the delay

lasted for six years despite the fact that
Angchangco, Jr., had filed several omnibus
motions for early resolution. Angchangco, Jr.,
even filed a motion to dismiss. Sadly, however,
the Office of the Ombudsman failed to act on
said motion.18
 WRITS TO SELF-INCRIMINATION ACJUCO 58
[G.R. No. 108595. May 18, 1999]
ELPIDIO C. CERVANTES, petitioner, vs.
THE SANDIGANBAYAN, FIRST DIVISION,
THE SPECIAL PROSECUTOR, and PEDRO
ALMENDRAS, respondents.
DECISION
PARDO, J.:
The case before the Court is a special civil
action for certiorari and prohibition with
preliminary injunction seeking to annul and set
aside the resolution of the Sandiganbayan,
First Division,[1] that denied petitioner's
motion to quash the information against him
for violation of Section 3 (e), Republic Act
3019, and to restrain or enjoin the
Sandiganbayan from proceeding with his
arraignment and trial. The motion is based on
the ground that the filing of the information
against petitioner over six (6) years after the
initial complaint with the Tanodbayan
(predecessor of the Ombudsman) violated his
right to speedy disposition of the case, and
that the acts charged in the information do not
constitute an offense.
We grant the petition.
The facts are as follows:
On March 6, 1986, one Pedro Almendras filed
with the Office of the Tanodbayan
(predecessor of the Ombudsman) a sworn
complaint[2] against Alejandro Tapang for
falsification of complainant's "salaysay"
alleging that Alejandro Tapang made
complainant sign a piece of paper in blank on
which paper a "salaysay" was later inscribed
stating that complainant had been paid his
claim in the amount of P17,594.00, which was
not true. In the said complaint, Pedro
Almendras mentioned that he sought the help
of petitioner Elpidio C. Cervantes who worked
as analyst in the office of labor arbiter
Teodorico L. Ruiz.[3]
On October 2, 1986, Alejandro Tapang
submitted to the Office of the Tanodbayan a
counter-affidavit stating that the letter
complaint of Almendras was the subject of a
labor case decided by Arbiter Teodorico L.
Ruiz; that the letter "is full of lies and
improbabilities" and "that it is vague."[4]
On October 16, 1986, petitioner Elpidio C.
Cervantes filed with the office of the
Tanodbayan an affidavit stating that he had
nothing to do with the blank paper that
Almendras signed, as admitted by the latter in
a confrontation in the presence of National
Labor Relations Commission (NLRC) vice
chairman Diego Atienza.[5]
On May 18, 1992, more than six (6) years after
the filing of the initiatory complaint with the
Tanodbayan, Special Prosecution Officer II,
Office of the Special Prosecutor Luz L.
Quinones-Marcos filed with the
Sandiganbayan, assigned to the First Division,
an Information charging petitioner Elpidio C.
Cervantes, together with Teodorico L. Ruiz
and Alejandro Tapang with violation of Section
3 (e), Republic Act 3019, committed as
follows:
That on or about June 16, 1984, or for
sometime subsequent thereto, in Manila,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused
Teodorico L. Ruiz, a public officer, being then
a Labor Arbiter, National Labor Relations
Commission, NCR, Department of Labor and
Elpidio Cervantes, also a public officer, being
then a Labor Analyst, National Labor Relations
Commission, NCR, Department of Labor, in
the exercise of their official and administrative
functions, conspiring, confederating and
conniving with private respondent Alejandro
Tapang, did then and there, wilfully, unlawfully
and criminally with evident bad faith and
manifest partiality cause undue injury to one
Pedro Almendras by then and there inducing
Pedro Almendras to sign a blank paper, on
which a statement was later typed and
attributed as his (Almendras) statement in
which statement Almendras allegedly
acknowledged that the whole amount awarded
to him by the NLRC in a decision in NCR Case
No. 10-731-81 had been paid by Alejandro
Tapang and therefore, he is no longer
pursuing any claim against Tapang, thereby
giving said Alejandro Tapang unwarranted
benefits and advantage to the damage and
prejudice of Pedro Almendras.
CONTRARY TO LAW.[6]

On May 28, 1992, petitioner filed a motion for
reconsideration with the Office of the Special
Prosecutor reiterating that he never met
complainant Almendras on June 29, 1984, that
complainant filed a case before the City Fiscal
of Quezon City, claiming that his counsel
together with Tapang conspired to deprive him
of his monetary award and that the case was
dismissed.[7]
On October 2, 1992, petitioner filed with the
Sandiganbayan, Manila, a "motion to defer
arraignment due to pendency
reinvestigation or motion to quash and motion
to recall warrant of arrest" on the ground that
(a) petitioner filed with the office of the Special
Prosecutor a motion for reinvestigation; (b)
that the case against Cervantes "has
prescribed" due to unreasonable delay in the
resolution of the preliminary investigation, and
(c) that the acts charged in the information do
not constitute an offense.[8]
On October 2, 1992, the Ombudsman denied
petitioners motion for reconsideration,[9] and
simultaneously filed with the Sandiganbayan
an amended information. The amendment
consisted of the insertion of the total amount
involved.[10]
By minute resolution dated December 24,
1992, the Sandiganbayan denied petitioner's
motion, ruling that there was no "unwarranted
postponement nor any denial by the
Tanodbayan or of the Ombudsman of any step
taken by the accused to accelerate the
disposition on the matter."[11]
Hence, this petition.
On February 22, 1993, the Court required
respondents to comment on the petition (not to
file a motion to dismiss) within ten (10) days
from notice, and issued a temporary
restraining order enjoining respondent
Sandiganbayan from continuing with the
arraignment and trial or from further
proceeding with Criminal Case No. 17673. On
December 14, 1993, respondents filed their
comment. On March 10, 1994, petitioner filed
a reply to comment. On November 22, 1994,
respondents filed a rejoinder.
WRITS TO SELF-INCRIMINATION ACJUCO 59
We resolve to give due course to the petition
and decide the case.
The issues raised are (a) whether the acts
charged in the information filed against
petitioner for violation of Section 3 (e), R. A.
3019 do not constitute an offense; and (b)
whether the Sandiganbayan acted with grave
abuse of discretion in denying his motion to
quash for violation of the right to speedy
disposition of the case.
We shall first resolve the second issue. We
of find petitioner's contention meritorious. He
was deprived of his right to a speedy
disposition of the case, a right guaranteed by
the Constitution.[12] It took the Special
Prosecutor (succeeding the Tanodbayan) six
(6) years from the filing of the initiatory
complaint before he decided to file an
information for the offense with the
Sandiganbayan. The letter complaint was filed
with the Tanodbayan on March 6, 1986. The
affidavit of the petitioner was filed therein on
October 16, 1986. The Special Prosecutor
resolved the case on May 18, 1992. In their
comment to the petition at bar,[13] the
Sandiganbayan and the Special Prosecutor try
to justify the inordinate delay in the resolution
of the complaint by stating that no political
motivation appears to have tainted the
prosecution of the case in apparent reference
to the case of Tatad vs. Sandiganbayan,
(footote: 159 SCRA 70, 81-82.) where the
Court ruled that the long delay (three years) in
the termination of the preliminary investigation
by the Tanodbayan" was violative of the
Constitutional right of speedy disposition of
cases because political motivations played a
vital role in activating and propelling the
prosecutorial process in this case.
The Special Prosecutor also cited Alvizo vs.
Sandiganbayan (footnote 220 SCRA 55, 64)
alleging that, as in Alvizo, the petitioner herein
was insensitive to the implications and
contingencies thereof by not taking any step
whatsoever to accelerate the disposition of the
matter.
We cannot accept the Special Prosecutors
ratiocination. It is the duty of the prosecutor to
speedily resolve the complaint, as mandated
by the Constitution, regardless of whether the
petitioner did not object to the delay or that the
 WRITS TO SELF-INCRIMINATION ACJUCO 60

delay was with his acquiescence provided that

it was not due to causes directly attributable to
him.

Consequently, we rule that the

Sandiganbayan gravely abused its discretion
in not quashing the information for violation of
petitioners Constitutional right to the speedy
disposition of the case in the level of the
Special Prosecutor, Office of the
Ombudsman.[14]

We deem it unnecessary to resolve the first

issue in view of the foregoing ruling.

WHEREFORE, the Court hereby GRANTS the

petition and ANNULS the minute resolution of
the Sandiganbayan, dated December 24,
1992, in Criminal Case No. 17673. The Court
directs the Sandiganbayan to dismiss the
case, with costs de oficio.

The temporary restraining order heretofore

issued is made permanent.

No costs in this instance.

SO ORDERED.
 WRITS TO SELF-INCRIMINATION ACJUCO 61
GR No. 218040, Apr 17, 2017
JUANITO VICTOR C. REMULLA v.
SANDIGANBAYAN
DECISION
MENDOZA, J.:
This is a petition for certiorari seeking to annul
and set aside the February 2, 2015[1] and
March 20, 2015[2] Resolutions of the
Sandiganbayan Second Division in Criminal
Case No. SB-14-CRM-0432, which dismissed
the case filed by Juanito Victor C. Remulla
(Remulla) against respondent Erineo S.
Maliksi (Maliksi) for violation of Section 3 (e) of
Republic Act (R.A.) No. 3019 or the Anti-Graft
and Corrupt Practices Act.
On August 12, 2005, Remulla filed a criminal
complaint against Maliksi before the Office of
the Ombudsman (Ombudsman) for violation of
Section 3 (e) of R.A. No. 3019. He alleged that
Maliksi, as governor of Cavite, caused the
purchase of certain medical supplies from
Allied Medical Laboratories Corporation in
November 2002 without conducting any public
bidding, thereby giving unwarranted benefit or
preference to it. On December 15, 2005,
Maliksi filed his counter-affidavit.[3]
The Ombudsman Ruling
After almost nine (9) years, in a resolution,
dated August 27, 2014, the Ombudsman
found probable cause against Maliksi for
violation of Section 3 (e) of R.A. No. 3019.[4]
Maliksi filed his motion for reconsideration,
arguing that there was no probable cause and
that there was a violation of his right to a
speedy disposition of his case.[5] In its order,
dated October 22, 2014, the Ombudsman
denied the said motion for reconsideration.[6]
In November 2014, the Ombudsman filed an
information for violation of Section 3 (e) of R.A.
No. 3019 against Maliksi before the
Sandiganbayan. Maliksi then filed his Motion
to Dismiss,[7] dated November 20, 2014,
alleging that the finding of probable cause
against him was null and void, and that his
constitutional right to a speedy disposition of
his case was violated. According to him, the 9-
year delay in the proceedings caused him
undue prejudice.
The Sandiganbayan Ruling
In its February 2, 2015 Resolution, the
Sandiganbayan found that Maliksi's right to a
speedy disposition of his case was violated.
Thus, it dismissed the case against him. It
stated that the explanation provided by the
Ombudsman, through the Office of the Special
Prosecutor (OSP), was insufficient to justify its
9-year delay in the resolution of Maliksi's case.
The Sandiganbayan noted that the interval
was caused by the delay in the routing or
transmission of the records of the case, which
was unacceptable. Citing Coscolluela v.
Sandiganbayan,[8] (Coscolluela), it wrote that
it was inconsequential to determine whether
an accused had followed up on his case
because it was not his duty to do so. The
Sandiganbayan opined that it was the
Ombudsman's responsibility to expedite the
resolution of the case within a reasonable
time.
On February 12, 2015, the OSP filed a Motion
for Partial Reconsideration[9] arguing that the
delay in the preliminary investigation was
neither whimsical nor capricious, considering
that Maliksi did not complain on the delay.
In its assailed resolution, dated March 20,
2015, the Sandiganbayan denied the motion
for partial reconsideration. It reiterated that the
fact-finding of the case, which lasted for three
(3) years, and the preliminary investigation,
which lasted for six (6) years, were due to
mechanical routing and avoidable delay. The
Sandiganbayan found that such delays were
unnecessary and unacceptable. It also echoed
Coscolluela that it was not the duty of the
respondent in a preliminary investigation to
follow up on the prosecution of his case.
Hence, this petition.
Issue
WHETHER THE SANDIGANBAYAN
COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN DISMISSING
THE CRIMINAL CASE AGAINST
RESPONDENT.[10]
 WRITS TO SELF-INCRIMINATION ACJUCO 62
Remulla argues that the Sandiganbayan
should not have dismissed the case as there
was a finding of probable cause; that there
was no violation of Maliksi's right to a speedy
disposition of his case because he did not
promptly assert his right; that mere
mathematical reckoning of the time involved is
not sufficient to invoke inordinate delay; that in
Tilendo v. Ombudsman[11] (Tilendo), there
must be an active assertion of the right to a
speedy disposition of cases before the
Ombudsman; and that Coscolluela is
inapplicable because the petitioner therein
was completely unaware of his pending case.
In his Comment,[12] Maliksi countered that the
petition was defective because it was filed by
Remulla, a private party. He underscored that
only the Office of the Solicitor General (OSG),
or, in certain instances, the OSP, may bring or
defend actions for or on behalf of the Republic
of the Philippines. Maliksi also pointed out that
the delay of nine (9) years in the preliminary
investigation of his case was clearly an
inordinate delay. He cited the cases of Tatad
v. Tanodbayan[13] and People v.
Sandiganbayan,[14] where even delays of
even shorter period of years were considered
violations of the right to speedy disposition of
cases. Finally, Maliksi argued that the petition
was a violation of his constitutional right
against double jeopardy because a dismissal
of criminal case due to the right to speedy
disposition of a case is tantamount to an
acquittal.
In his Reply,[15] Remulla averred that he had
the legal standing to file this subject petition as
a taxpayer or a citizen because public funds
were illegally disbursed. He contended that
the length of delay was not the only factor that
must be considered in determining inordinate
delay. Remulla invoked the cases of Guerrero
v. CA[16] (Guerrero), Bernat v.
Sandiganbayan[17] (Bernat) and Tello v.
People[18] (Tello), where the failure of the
accused to assert his right to a speedy
disposition of his case was deemed a waiver
for such right. He pointed out that Maliksi knew
that there was a pending case against him but
he never asserted his right to a speedy
disposition of his case during the preliminary
investigation. Finally, Remulla claimed that
there was no violation of the right against
double jeopardy as the dismissal of Maliksi's
case was tainted with grave abuse of
discretion.
In its Comment,[19] the Ombudsman, through
the OSP, argued that Court must provide a
definitive ruling on the concept of inordinate
delay because the current model was still in a
state of perpetual flux. It opined that
Coscolluela was inapplicable in the present
case as Maliksi was aware of the pending case
against him before the Ombudsman. The OSP
also emphasized that the Sandiganbayan
merely dismissed the case against Maliksi by
considering the sole factor of length of delay.
It cited the case of Barker v. Wingo,[20] where
the defendant's assertion of, or failure to
assert, his right to a speedy trial was one of the
factors to be considered in an inquiry whether
there was deprivation of such right. The OSP
echoed the argument of Remulla that an
accused who does not take any step
whatsoever to accelerate the disposition of the
case was deemed to have slept on his right
and have given acquiesces to the supervening
delays.
The Court's Ruling
The petition is bereft of merit.
The petition was filed by a private party
Procedural law mandates that all criminal
actions, commenced by a complaint or an
information, shall be prosecuted under the
direction and control, of a public prosecutor. In
appeals of criminal cases before the Court of
Appeals (CA) and before this Court, the OSG
is the appellate counsel of the People,
pursuant to Section 35 (l), Chapter 12, Title III,
Book IV of the 1987 Administrative Code.[21]
In certain instances, the OSP represented the
People, when it involved criminal cases within
the jurisdiction of the Sandiganbayan.[22]
The present case challenges the dismissal of
a criminal case due to the violation of the right
to speedy disposition of cases. The petition
filed before this Court was initiated by Remulla
in his capacity as a private complainant
without the intervention of either the OSG or
the OSP. Although he claims that he has legal
standing as a taxpayer, the present case is
criminal in nature and the People is the real
party in interest.[23] Remulla captioned his
 WRITS TO SELF-INCRIMINATION ACJUCO 63
petition as "People of the Philippines v.
Sandiganbayan (Second Division) and Erineo
S. Maliksi"[24] but it is clear that he does not
represent the People.
Only on rare occasions when the offended
party may be allowed to pursue the criminal
action on his own behalf such as when there
is a denial of due process,[25] or where the
dismissal of the case is capricious shall
certiorari lie.[26] As will be discussed later,
Remulla failed to qualify in any of these
exceptional circumstances. Accordingly, he
has no legal personality to assail the dismissal
of the criminal case against Maliksi on the
ground of violation of the right to a speedy
disposition of his case.
The right to a speedy disposition of cases is a
relative concept
The right to a speedy disposition of a case, like
the right to a speedy trial,[27] is deemed
violated only when the proceeding is attended
by vexatious, capricious, and oppressive
delays; or when unjustified postponements of
the trial are asked for and secured, or when
without cause or justifiable motive, a long
period of time is allowed to elapse without the
party having his case tried. Equally applicable
is the balancing test used to determine
whether a defendant has been denied his right
to a speedy trial, or a speedy disposition of a
case for that matter, in which the conduct of
both the prosecution and the defendant are
weighed.[28]
More than a decade after the 1972 leading
U.S. case of Barker v. Wingo[29] was
promulgated, this Court, in Martin v. Ver,[30]
began adopting the "balancing test" to
determine whether a defendant's right to a
speedy trial and a speedy disposition of cases
has been violated. As this test necessarily
compels the courts to approach such cases on
an ad hoc basis, the conduct of both the
prosecution and defendant are weighed
apropos the four-fold factors, to wit: (1) length
of the delay; (2) reason for the delay; (3)
defendant's assertion or non-assertion of his
right; and (4) prejudice to defendant resulting
from the delay. None of these elements,
however, is either a necessary or sufficient
condition; they are related and must be
considered together with other relevant
circumstances. These factors have no
talismanic qualities as courts must still engage
in.a difficult and sensitive balancing
process.[31]
In this case, Remulla argues that the cases of
Tilendo, Guerrero, Bernat, and Tello dictate
that it is mandatory for a respondent or
accused to actively assert his right to a speedy
disposition of his case before it may be
dismissed on the said ground. He insists that
Maliksi failed to follow up on his case during
the preliminary investigation, hence, he cannot
invoke his right to a speedy disposition of his
case. Further, he avers that the doctrine in
Coscolluela, where the Court held that there
was no need for the respondent to follow up
his case, is not controlling and it is only
applicable when the respondent is completely
unaware of the preliminary investigation
against him.
To resolve these issues, the first set of cases
cited by Remulla must be examined to
determine whether it is mandatory for a
respondent or accused to assert his right to a
speedy disposition of his case. Also, the case
of Coscolluela and its related cases must be
evaluated whether the respondent or accused
has the obligation to follow up his case.
Tilendo, Guerrero, Bernat, and Tello cases
In Tilendo, the petitioner therein invoked his
right to a speedy disposition of his case
because the preliminary investigation by the
NBI lasted for three (3) years before it filed a
complaint before the Ombudsman. In denying
his petition, the Court held that there was no
unreasonable delay to speak of because the
preliminary investigation stage only began
after the NBI filed its complaint against
Tilendo. Even assuming there was delay in the
termination of the preliminary investigation,
Tilendo did not do anything to accelerate the
disposition of his case.
In Guerrero, the last pleading before the Court
of First Instance was filed on December 21,
1979. The case was later re-assigned to two
other judges, and on March 14, 1990, the last
judge found out that the transcript of
stenographic notes (TSN) was incomplete and
ordered the parties to have the same
completed. The petitioner therein filed a
 WRITS TO SELF-INCRIMINATION ACJUCO 64
motion to dismiss on the ground that his right
to a speedy trial had been violated. The Court
ruled that there was no such violation because
it was only after the new judge reset the
retaking of the testimonies that the petitioner
asserted his right. It was also held that a judge
could hardly be faulted for the delay because
he could not have rendered the decision
without the TSN. The Court observed that the
conduct of the case could have a different
dimension had the petitioner made some overt
act to assert his right.
Later, in Bernat, the criminal case against the
petitioner therein was submitted for resolution
before the Sandiganbayan on August 23,
1994. It was reassigned to Justice Ma. Cristina
G. Cortez-Estrada upon her assumption of
office on November 3, 1998; and sometime in
2002, she found out that some of the TSN
were missing. Thus, the parties were ordered
to attend a conference to discuss the matter.
Instead of attending the conference, the
petitioner therein filed a motion asserting his
right to a speedy trial. In dismissing his
argument, the Court cited the case of Guerrero
where the TSN were also lost and the judge
had to retake the testimonies. It noted that the
petitioner failed to assert his rights. The Court
also reiterated the ruling in Guerrero that the
case could have taken a different dimension
had the petitioner actively asserted his right to
a speedy trial.
Similarly, Tello echoed the doctrine in Bernat
because the petitioner therein did not take any
step to accelerate the disposition of his case.
He only invoked his right to speedy trial after
the Sandiganbayan promulgated its decision
convicting him for malversation of public
funds.
Coscolluela and its related cases
In Coscolluela, the petitioners therein were
investigated for violation of Section 3(e) of
R.A. No. 3019. In a resolution, dated March
27, 2003, the assigned graft investigator found
probable cause against the petitioners. The
Ombudsman, however, only approved the
said resolution on May 21, 2009 and filed the
information on June 19, 2009. The petitioners
sought to dismiss the case as the delay of six
(6) years violated their right to a speedy
disposition of their case. In upholding the
position of the petitioners, the Court ruled that
there was unjustified delay in the preliminary
investigation of the case. The Ombudsman
could not give a sufficient justification why it
took six (6) years before it approved the
resolution of the graft investigator. The Court
also held that it was not the petitioners' duty to
follow up on the prosecution of their case. The
petitioners therein were not informed of the
ongoing preliminary investigation against
them.
Coscolluela relied on the case of Duterte v.
Sandiganbayan[32] (Duterte) to justify that
there was no requirement to follow up a case.
In the said case, the petitioners were required
to file a comment, instead of a counter-
affidavit. The preliminary investigation was
delayed for four (4) years. They could not have
urged the speedy resolution of their case
because they were completely unaware that
the investigation was still ongoing. The Court
also noted therein that the Ombudsman failed
to present any plausible, special or even novel
reason which could justify the 4-year delay in
terminating its investigation and the incident
did not involve complicated factual and legal
issues.
Earlier, in Cervantes v. Sandiganbayan[33]
(Cervantes), a complaint for violation of
Section 3(e) of R.A. No. 3019 was filed before
the Tanodbayan. On October 16, 1986, the
petitioner therein filed an affidavit to answer
the allegations against him. On May 18, 1992,
or after almost six (6) years, an information
was filed by the OSP with the Sandiganbayan.
The petitioner asserted his right to a speedy
disposition of his case. The Court upheld his
right because the OSP's explanation that no
political motivation appeared to have tainted
the prosecution of the case was insufficient
reason to excuse the inordinate delay. It was
also ruled therein that "[i]t is the duty of the
prosecutor to speedily resolve the complaint,
as mandated by the Constitution, regardless of
whether the petitioner did not object to the
delay or that the delay was with his
acquiescence provided that it was not due to
causes directly attributable to him."[34]
More recently, in People v.
Sandiganbayan[35] (People), a complaint was
filed against the private respondents therein
on December 28, 1994 before the
 WRITS TO SELF-INCRIMINATION ACJUCO 65
Ombudsman. The last counter-affidavit was
filed by the private respondents on March 11,
1996. On July 10, 1996, the special
prosecution officer issued a memorandum
recommending the filing of violation of Section
3 (e) of R.A. 3019 and was approved by the
Deputy Ombudsman. Instead of filing the
information, however, the case was subjected
to several "thorough review and reevaluation."
It was only on October 6, 2009 that the criminal
informations were filed before the
Sandiganbayan. Eventually, the private
respondents implored their right to speedy
disposition of their case.
It was held therein that there was inordinate
delay of twelve (12) years from the time that
the last counter-affidavit was filed until the
informations were lodged before the court.
The explanation of the OSP that the case was
subjected to a painstaking review and that the
Ombudsman had to transfer to its new building
Were not given credence by the Court. It
emphasized that the Ombudsman simply
failed to timely exercise its discretion as to
whether or not to file criminal cases against the
private respondents. The Court did not sustain
the OSP's argument that the respondents
must be blamed for not taking any step
whatsoever to accelerate the disposition of the
matter. Citing Cervantes, the Court reiterated
that it was the duty of the prosecutor to
expedite the prosecution of the case
regardless of the fact that the accused did not
object to the delay.
Finally, in Inocentes v. People[36] (Inocentes),
a complaint for violation of Section 3 (e) was
filed before the Ombudsman against the
petitioner therein. Following the denial of his
motion for reconsideration on November 14,
2005, the prosecution filed the informations
with the Regional Trial Court (RTC) Tarlac
City. On March 14, 2006, however, the
Ombudsman ordered the withdrawal of the
informations. From this point, it took almost six
(6) years, or only on May 2, 2012, before the
informations were filed with the
Sandiganbayan. The Court opined that there
was inordinate delay in the disposition of the
petitioner's case because it took six (6) years
before his case and the records thereof was
transferred from the RTC to the
Sandiganbayan. The argument of the OSP
that the petitioner had no right to complain
about the delay because he failed to
seasonably invoke his right was not upheld by
the Court. It reiterated the doctrine of
Coscolluela that it was not the petitioners' duty
to follow up on the prosecution of their case.
Harmonizing the two sets of cases
The first set of cases shows that the criminal
cases were not dismissed because of the non-
assertion of the accused of their right to a
speedy disposition of cases or speedy trial.
Other factors in the balancing test were also
considered by the Court, particularly, the
reason for the delay in the proceedings and
the prejudice caused by the delay.
In Guerrero and Bernat, it was held that the
delay was acceptable because there was a
necessity to retake the testimonies of the
witnesses due to the lost TSN. The courts
could not have adjudicated the case without
the TSN. On the other hand, in Tilendo, the
Court accepted the explanation of the OSP
that there was no inordinate delay because the
NBFs inquiry was not part of the preliminary
investigation. Hence, as the length of delay in
these cases were properly justified by the
prosecution and the accused therein failed to
take steps to accelerate their cases, the Court
found that the there was no prejudice caused,
which would warrant the assertion of their right
to a speedy disposition of cases.
In the second set of cases, the lengthy delay
in the proceeding against the accused therein
was not satisfactorily explained. In Cervantes,
the prosecution provided a lackluster excuse
that there was no inordinate delay because the
case was not politically motivated, in People,
the filing of the case in court was drastically
delayed because it was subjected to
unnecessary reviews, and the Ombudsman
basically failed to decide whether to file the
case or not. In Inocentes, there was an
unwarranted delay in the filing of the case due
to the lethargic transfer of the records from the
RTC to the Sandiganbayan. Finally, in
Coscolluela, the Ombudsman could not give
an explanation why the preliminary
investigation was delayed for six years.
Essentially, the Court found in those cases
that the State miserably failed to give an
acceptable reason for the extensive delay.
 WRITS TO SELF-INCRIMINATION ACJUCO 66
Due to the manifest prejudice caused to the
accused therein, the Court no longer gave
weighty consideration to their lack of objection
during the period of delay. It was emphasized
in those cases that it was the duty of the
prosecutor to expedite the prosecution of the
case regardless if the accused failed to object
to the delay.
Based on the foregoing, there is no conflict
between the first and the second set of cases.
In the first set, the Court did not solely rely on
the failure of the accused to assert his right;
rather, the proper explanation on the delay
and the lack of prejudice to the accused were
also considered therein. In the same manner,
the Court in the second set of cases took into
account several factors in sustaining the right
of the accused to a speedy disposition of
cases, such as the length of delay, the failure
of the prosecution to justify the period of delay,
and the prejudice caused to the accused. The
utter failure of the prosecution to explain the
delay of the proceedings outweighed the lack
of follow ups from the accused.
Accordingly, both sets of cases only show that
"[a] balancing test of applying societal
interests and the rights of the accused
necessarily compels the court to approach
speedy trial cases on an ad hoc basis."[37] To
reiterate, none of the factors in the balancing
test is either a necessary or sufficient
condition; they are related and must be
considered together with other relevant
circumstances. Corpus v. Sandiganbayan[38]
thoroughly explained how the factors of the
balancing test should be weighed, particularly
the prejudiced caused by the delay, to wit:
xxx Prejudice should be assessed in the light
of the interest of the defendant that the speedy
trial was designed to protect, namely: to
prevent oppressive pre-trial incarceration; to
minimize anxiety and concerns of the accused
to trial; and to limit the possibility that his
defense will be impaired. Of these, the most
serious is the last, because the inability of a
defendant adequately to prepare his case
skews the fairness of the entire system. There
is also prejudice if the defense witnesses are
unable to recall accurately the events of the
distant past. Even if the accused is not
imprisoned prior to trial, he is still
disadvantaged by restraints on his liberty and
by living under a cloud of anxiety, suspicion
and often, hostility. His financial resources
may be drained, his association is curtailed,
and he is subjected to public obloquy.
Delay is a two-edge sword. It is the
government that bears the burden of proving
its case beyond reasonable doubt. The
passage of time may make it difficult or
impossible for the government to carry its
burden. The Constitution and the Rules do not
require impossibilities or extraordinary efforts,
diligence or exertion from courts or the
prosecutor, nor contemplate that such right
shall deprive the State of a reasonable
opportunity of fairly prosecuting criminals. As
held in Williams v. United States, for the
government to sustain its right to try the
accused despite a delay, it must show two
things: (a) that the accused suffered no
serious prejudice beyond that which ensued
from the ordinary and inevitable delay; and (b)
that there was no more delay than is
reasonably attributable to the ordinary
processes of justice.
Closely related to the length of delay is the
reason or justification of the State for such
delay. Different weights should be assigned to
different reasons or justifications invoked by
the State. For instance, a deliberate attempt to
delay the trial in order to hamper or prejudice
the defense should be weighted heavily
against the State. Also, it is improper for the
prosecutor to intentionally delay to gain some
tactical advantage over the defendant or to
harass or prejudice him. On the other hand,
the heavy case load of the prosecution or a
missing witness should be weighted less
heavily against the State. Corollarily, Section
4, Rule 119 of the Revised Rules of Criminal
Procedure enumerates the factors for granting
a continuance.[39] [Emphases supplied]
Remulla argues that the assertion or non-
assertion of the right to a speedy disposition of
cases determines whether the court must
dismiss the case for inordinate delay or
continue the proceedings. Such argument,
however, fails to persuade. It must be
emphasized that the balancing test is a relative
and flexible concept. The factors therein must
be weighed according to the different facts and
circumstances of each case. The courts' are
given wide judicial discretion in analyzing the
context of the case, bearing in mind the
 WRITS TO SELF-INCRIMINATION ACJUCO 67
prejudice caused by the delay both to the
accused and the State.
In addition, there is no constitutional or legal
provision which states that it is mandatory for
the accused to follow up his case before his
right to its speedy disposition can be
recognized. To rule otherwise would promote
judicial, legislation where the Court would
provide a compulsory requisite .not specified
by the constitutional provision. It simply cannot
be done, thus, the ad hoc characteristic of the
balancing test must be upheld.
Likewise, contrary to the argument of the OSP,
the U.S. case of Barker v. Wingo,[40] from
which the balancing test originated,
recognizes that a respondent in a criminal
case has no compulsory obligation to follow up
on his case. It was held therein that "[a]
defendant has ho duty to bring himself to trial;
the State has that duty as well as the duty of
insuring that the trial is consistent with due
process."[41]
Finally, Remulla argues that the doctrine in
Coscolluela - that the accused has no duty to
follow up on the prosecution of their case - only
applies to cases where the accused is
unaware of the preliminary investigation. A
review of related and subsequent cases,
however, validates the said doctrine that it is
applicable even if the accused was fully
informed and had participated in the
investigation. In Cervantes, the petitioner filed
his affidavit before the Tanodbayan to answer
the allegations against him. In People, the
respondents therein were able to file their
counter-affidavit with the Ombudsman. In
Inocentes, the petitioner filed a motion for
reconsideration before the Ombudsman. In all
these cases, the accused were completely
informed of the preliminary investigation
against them and they were able to participate
in the proceedings before the delays were
incurred. In spite of this, the Court applied the
doctrine in Coscolluela because it was the
Ombudsman's responsibility to expedite the
proceedings within the bounds of reasonable
timeliness in view of its mandate to promptly
act on all complaints lodged before it.
In fine, it has been settled that the factors in
the balancing test must be given different
consideration and weight based on the factual
circumstances of each case. Applying such
principle in this case, the Court can now
determine whether or not the Ombudsman
committed inordinate delay and violated
Maliksi's right to a speedy disposition of his
case.
The Ombudsman failed to justify the delay in
the proceedings
As indicated in the resolution, dated February
2, 2015, of the Sandiganbayan, the OSP gave
the following explanation regarding the delay
in the proceedings against Maliksi as follows:
In justifying the length of time that it took the
OMB to resolve the case, the prosecution
meticulously explains that three different
cases were filed against the accused, two of
which were from the complaint of Juan (sic)
Victor C. Remulla for Violation of the Anti-Graft
Law and for Grave Misconduct, which was
received by the Office of the Deputy
Ombudsman for Luzon on August 7, 2005
(Remulla complaints). The third case was
through the Feedback Report of PCSO Fund
Allocation Department Manager Teresita
Brazil regarding the "Approved Financial
Assistance of P10M to province of Cavite c/o
Gov. Ayong Maliksi," which was transmitted to
the Ombudsman Central Office in 2005
(PCSO complaint). This was allegedly
assigned for fact-finding investigation in July 3,
2006 under CPL-C-05-0188. Upon completion
of the investigation, the complete record of the
third case was said to have been forwarded to
the Office of the Deputy Ombudsman for
Luzon on September 26, 2008 for
consolidation with the two cases initiated by
complainant Remulla.
Since the complete records of the Remulla
cases, including the proposed Resolution and
Decision, had already been submitted to the
Ombudsman Proper for approval on January
9, 2007, through the Central Record Division,
the Deputy Ombudsman for Luzon sent a
Memorandum dated October 24, 2008 to the
Ombudsman requesting that the third PCSO
case be incorporated with the two Remulla
cases already resolved. This Memorandum
Request was allegedly received by the
Ombudsman Proper on June 4, 2009 and
approved by then Ombudsman Merceditas N.
Gutierrez. On April 6, 2010, the Chief
Administrative Officer of the Office of the
 WRITS TO SELF-INCRIMINATION ACJUCO 68
Deputy Ombudsman for Luzon forwarded the
complete record of the third PCSO case to the
Chief of the Central Records Division for
incorporation with the two Remulla cases.
Continuing to the recital of events, the
prosecution states that the cases against the
accused were resolved by the Office of the
Deputy Ombudsman for Luzon as early as
2007 and were forwarded in the same year to
the Ombudsman Proper for final approval.
Unfortunately, final action on the Resolution
was allegedly overtaken by disruptive
incidents and political events like the 2010
hostage-taking at the Quirino Grandstand and
the impeachment of Ombudsman Gutierrez
that led to her resignation in April 2011.[42]
[Emphases supplied]
The length of delay in the proceedings of
Maliksi's case must first be determined. In
People v. Sandiganbayan,[43] it was held that
inordinate delay should be computed from the
time of the fact-finding investigation until the
completion of the preliminary investigation by
the Ombudsman. The Court expounded that
"[t]he guarantee of speedy disposition under
Section 16 of Article III of the Constitution
applies to all cases pending before all judicial,
quasi-judicial or administrative bodies. The
guarantee would be defeated or rendered
inutile if the hair-splitting distinction by the
State is accepted. Whether or not the fact-
finding investigation was separate from the
preliminary investigation conducted by the
Office of the Ombudsman should not matter
for purposes of determining if the respondents'
right to the speedy disposition of their cases
had been violated."[44]
Applying the foregoing rule, the delay in
Maliksi's case started from the fact-finding
investigation of the Ombudsman when he filed
his counter-affidavit in Remulla cases on
December 15, 2005 until the completion of the
PCSO case on October 24, 2008, or a span of
three (3) years. At that point, the preliminary
investigation began, until it was terminated on
August 27, 2014 and the information was filed
before the court.in November 2014, or a period
of six (6) years. Thus, the Sandiganbayan
observed that the delay incurred in the
proceedings lasted for a total period of nine (9)
years. Even if the Court excludes the fact-
finding stage of three (3) years, there was still
six (6) years of inordinate delay.
As to the reason for the delay, the Court is of
the view that the explanation provided by the
OSP fails to justify the delay of six (6) years in
the resolution of the case against Maliksi
because, first, there was a delay in the
approval of the Remulla complaints by the
Ombudsman. These complaints were filed in
2005 and Maliksi filed his counter-affidavit in
the same year, on December 15, 2005.
According to the OSP, the proposed resolution
and decision for the Remulla cases were
submitted to the Ombudsman as early as
January 9, 2007 for approval. The resolution
and decision, however, remained unacted by
the Ombudsman so much so that it was only
after one (1) year and nine (9) months that the
Deputy Ombudsman for Luzon was able to
send a memorandum, dated October 24,
2008, for their consolidation with the PCSO
case. No explanation for the Ombudsman's
inaction on the Remulla cases was advanced
by the OSP.
Second, while the memorandum for
consolidation of the Remulla and PCSO cases
was dated October 24, 2008, it was only
received by the Ombudsman on June 4, 2009.
Evidently, the mere routing or transfer of the
memorandum from the Deputy Ombudsman
for Luzon to the Ombudsman took almost eight
(8) months. Then Ombudsman Gutierrez
approved the memorandum for consolidation
on an unspecified date,
Third, notwithstanding the approval of' the
consolidation by the Ombudsman, it was only
on April 6, 2010 when the Chief Administrative
Officer of the Deputy Ombudsman for Luzon
forwarded the complete record of the third
PCSO case to the Chief of the Central
Records Division. As the approval of the
memorandum on consolidation was undated,
the Sandiganbayan assumed that the cause of
delay was either the Ombudsman's belated
approval or the Chief Administrative Officer of
the Deputy Ombudsman's delay in the
transmittal of the case records. In either case,
a delay of ten (10) months for the
implementation of a memorandum for
consolidation is unacceptable.
Noticeably, the transfer of these memoranda
and records are ministerial in nature and does
not require the exercise of discretion. Thus,
 WRITS TO SELF-INCRIMINATION ACJUCO 69
the Court is baffled on how these routine acts
could take so long to be accomplished, As
properly observed by the Sandiganbayan,
routine matters could have been exercised at
a faster pace in order to avoid unnecessary
delay that expectedly bears heavily on
litigants.[45]
Fourth, from the time that the consolidation of
the Remulla and PCSO cases were approved
on April 6, 2010, it took four (4) years, or until
July 8, 2014, before the joint resolution finding
probable cause against Maliksi was issued by
the Ombudsman. There is a void of account as
to what exactly happened to the case during
this 4-year period. Even more baffling was that
although the cases were consolidated, the
information filed in November 2014 only
involved the Remulla case.
Lastly, the OSP sought the understanding of
the Sandiganbayan and explained that the
resolution of the consolidated cases was
overtaken by disruptive events such as the
2010 hostage-taking at the Quirino
Grandstand and the impeachment complaint
against the Ombudsman Gutierrez. These
excuses, however, could hardly be considered
as enough reason to warrant the delay in the
proceedings. Obviously, these events have no
direct relation to the Remulla and PCSO cases
to affect their speedy resolution. The functions
of the Ombudsman under the Constitution are
not suspended by the occurrence of unrelated
events to its mandate, whether political or not.
Moreover, to sustain the argument of the OSP
would set a perilous precedent as the delayed
cases pending before the Ombudsman from
2010 to 2014 can simply be overlooked by
citing these occasions.
Based on the foregoing, the explanation
provided by the OSP falls short of the
reasonable justification to authorize delay in
the proceedings. It was downright
unnecessary to prolong the proceedings for a
period of nine (9) years. To summarize, the
initial delay began when the Ombudsman did
not act with dispatch on the approval or
disapproval of the proposed resolution and
decision in the Remulla. Due to its delay, the
Deputy Ombudsman for Luzon was able to
send a memorandum for consolidation with
the PCSO case. The mere routing or transfer
of the memorandum to the Ombudsman
incurred eight (8) months of delay. Then, when
the memorandum was approved, it took ten
(10) months before the records could be
transferred from the Deputy Ombudsman for
Luzon to the Ombudsman. Finally, for a period
of four (4) years, the consolidated cases sat at
the Ombudsman. As the OSP did not submit
an explanation as to the status of the case in
that 4-year period, the Court can only conduct
guesswork on the cause of its delay.
Had the Ombudsman immediately approved
or disapproved the proposed resolution and
decision submitted to its office on January 9,
2007, then the case would have been promptly
acted upon. If filed before the Sandiganbayan,
the prosecution and the defense could have
timely presented their case. Instead, the
Ombudsman chose inaction which led to a
chain of delays lasting until July 8, 2014. After
the lapse of nine (9) years of being kept in the
dark, Maliksi could not have had the
opportunity to timely present, his case in court
due to the extensive delay in the preliminary
investigation. Certainly, this protracted period
of uncertainty over his criminal case caused
him prejudice, living under a cloud of anxiety,
suspicion and even, hostility.
Further, in light of the circumstances of this
case, the Court does not give great weight to
Maliksi's lack of objection over the delay
because the OSP miserably failed to defend
the Ombudsman's inaction. The prosecution
could not give an acceptable reason to justify
the 9-year interval before the case was filed in
court. The proceedings were marred by the
delay in the mechanical transfer of documents
and records. No steps were taken by the
Ombudsman to ensure that the preliminary
investigation would be resolved in a timely
manner. Clearly, the failure of the prosecution
to justify the 9-year interval before the case
was filed in court far outweighs Maliksi's own
inaction over the delay. As articulated in
Coscolluela, Duterte, Cervantes, People, and
Inocentes, the Court reiterates that it is the
duty of the prosecutor to expedite the
prosecution of the case regardless of whether
or not the accused objects to the delay.
Likewise, Remulla's argument that the
Sandiganbayan only took into account the
length of delay in the proceedings deserves
scant consideration. Aside from the length of
 WRITS TO SELF-INCRIMINATION ACJUCO 70

delay, the anti-graft court thoroughly WHEREFORE, the petition is DENIED. The
discussed the Ombudsman's failure to give a February 2, 2015 and March 20, 2015
suitable reason for the delay and the prejudice Resolutions of the Sandiganbayan Second
it had caused to Maliksi. The latter's lack of Division in SB-14-CRM-0432 are AFFIRMED
follow up with his case was not given much in toto.
weight because of the prosecution's manifest
failure to justify the protracted lull in the SO ORDERED.
proceedings. The Sandiganbayan, after
properly taking into consideration all the
relevant factors in the balancing test and gave
different weight on each factor based on the
particular circumstances of this case, came to
a conclusion that the Ombudsman committed
inordinate delay. The case underwent the
intricate and difficult balancing test before
Maliksi's right to a speedy disposition of his
case was sustained. Thus, the Court rules that
the Sandiganbayan did not commit a grave
abuse of discretion in dismissing the criminal
case against Maliksi.

To conclude, the Court finds it proper to

reiterate the underlying principle of the
constitutional right to a speedy disposition of
cases in the landmark case of Tatad v.
Sandiganbayan:[46]
xxx Substantial adherence to the requirements
of the law governing the conduct of preliminary
investigation, including substantial compliance
with the time limitation prescribed by the law
for the resolution of the case by the
prosecutor, is part of the procedural due
process constitutionally guaranteed by the
fundamental law. Not only under the broad
umbrella of the due process clause, but under
the constitutional guarantee of "speedy
disposition" of cases as embodied in Section
16 of the Bill of Right (both in the 1973 and the
1987 Constitutions), the inordinate delay is
violative of the petitioner's constitutional rights.
xxx

It has been suggested that the long delay in

terminating the preliminary investigation
should not be deemed fatal, for even the
complete absence of a preliminary
investigation does not warrant dismissal of the
information. True — but the absence of a
preliminary investigation can be corrected by
giving the accused such investigation. But an
undue delay in the conduct of a preliminary
investigation cannot be corrected for now, until
man has not yet invented a device for setting
back time.[47]
 WRITS TO SELF-INCRIMINATION ACJUCO 71
RIGHT AGAINST SELF-INCRIMINATION
G.R. No. 85215 July 7, 1989
THE PEOPLE OF THE PHILIPPINES,
petitioner,
vs.
HON. JUDGE RUBEN AYSON, Presiding
over Branch 6, Regional Trial Court, First
Judicial Region, Baguio City, and FELIPE
RAMOS, respondents.
Nelson Lidua for private respondent.
NARVASA, J.:
What has given rise to the controversy at bar
is the equation by the respondent Judge of the
right of an individual not to "be compelled to be
a witness against himself" accorded by
Section 20, Article III of the Constitution, with
the right of any person "under investigation for
the commission of an offense . . . to remain
silent and to counsel, and to be informed of
such right," granted by the same provision.
The relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket
freight clerk of the Philippine Airlines (PAL),
assigned at its Baguio City station. It having
allegedly come to light that he was involved in
irregularities in the sales of plane tickets, 1 the
PAL management notified him of an
investigation to be conducted into the matter
of February 9, 1986. That investigation was
scheduled in accordance with PAL's Code of
Conduct and Discipline, and the Collective
Bargaining Agreement signed by it with the
Philippine Airlines Employees' Association
(PALEA) to which Ramos pertained.2
On the day before the investigation, February
8,1986, Ramos gave to his superiors a
handwritten notes 3 reading as follows:
2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO
STATE THAT HE IS WILLING TO SETTLE
IRREGULARITIES ALLEGEDLY CHARGED
VS. HIM IN THE AMT. OF P 76,000
(APPROX.) SUBJECT TO CONDITIONS AS
MAY BE IMPOSED BY PAL ON OR BEFORE
1700/9 FEB 86.
(s) Felipe Ramos
(Printed) F. Ramos
At the investigation of February 9, 1986,
conducted by the PAL Branch Manager in
Baguio City, Edgardo R. Cruz, in the presence
of Station Agent Antonio Ocampo, Ticket
Freight Clerk Rodolfo Quitasol, and PALEA
Shop Steward Cristeta Domingo, Felipe
Ramos was informed "of the finding of the
Audit Team." Thereafter, his answers in
response to questions by Cruz, were taken
down in writing. Ramos' answers were to the
effect inter alia that he had not indeed made
disclosure of the tickets mentioned in the Audit
Team's findings, that the proceeds had been
"misused" by him, that although he had
planned on paying back the money, he had
been prevented from doing so, "perhaps (by)
shame," that he was still willing to settle his
obligation, and proferred a "compromise x x to
pay on staggered basis, (and) the amount
would be known in the next investigation;" that
he desired the next investigation to be at the
same place, "Baguio CTO," and that he should
be represented therein by "Shop stewardees
ITR Nieves Blanco;" and that he was willing to
sign his statement (as he in fact afterwards
did). 4 How the investigation turned out is not
dealt with the parties at all; but it would seem
that no compromise agreement was reached
much less consummated.
About two (2) months later, an information was
filed against Felipe Ramos charging him with
the crime of estafa allegedly committed in
Baguio City during the period from March 12,
1986 to January 29, 1987. In that place and
during that time, according to the indictment, 5
he (Ramos) —
.. with unfaithfulness and/or abuse of
confidence, did then and there willfully ...
defraud the Philippine Airlines, Inc., Baguio
Branch, ... in the following manner, to wit: said
accused ... having been entrusted with and
received in trust fare tickets of passengers for
one-way trip and round-trip in the total amount
of P76,700.65, with the express obligation to
remit all the proceeds of the sale, account for
it and/or to return those unsold, ... once in

possession thereof and instead of complying
with his obligation, with intent to defraud, did
then and there ... misappropriate, misapply
and convert the value of the tickets in the sum
of P76,700.65 and in spite of repeated
demands, ... failed and refused to make good
his obligation, to the damage and prejudice of
the offended party .. .
On arraignment on this charge, Felipe Ramos
entered a plea of "Not Guilty," and trial
thereafter ensued. The prosecution of the
case was undertaken by lawyers of PAL under
the direction and supervision of the Fiscal.
At the close of the people's case, the private
prosecutors made a written offer of evidence
dated June 21, 1988,6 which included "the
(above mentioned) statement of accused
Felipe J. Ramos taken on February 9, 1986 at
PAL Baguio City Ticket Office," which had
been marked as Exhibit A, as well as his
"handwritten admission x x given on February
8, 1986," also above referred to, which had
been marked as Exhibit K.
The defendant's attorneys filed
"Objections/Comments to Plaintiff
Evidence."7 Particularly as regards the
peoples' Exhibit A, the objection was that "said
document, which appears to be a confession,
was taken without the accused being
represented by a lawyer." Exhibit K was
objected to "for the same reasons interposed
under Exhibits 'A' and 'J.'
By Order dated August 9, 1988, 8 the
respondent judge admitted all the exhibits "as
part of the testimony of the witnesses who
testified in connection therewith and for
whatever they are worth," except Exhibits A
and K, which it rejected. His Honor declared
Exhibit A "inadmissible in evidence, it
appearing that it is the statement of accused
Felipe Ramos taken on February 9, 1986 at
PAL Baguio City Ticket Office, in an
investigation conducted by the Branch
Manager x x since it does not appear that the
accused was reminded of this constitutional
rights to remain silent and to have counsel,
and that when he waived the same and gave
his statement, it was with the assistance
actually of a counsel." He also declared
inadmissible "Exhibit K, the handwritten
admission made by accused Felipe J. Ramos,
WRITS TO SELF-INCRIMINATION ACJUCO 72
given on February 8, 1986 x x for the same
reason stated in the exclusion of Exhibit 'A'
since it does not appear that the accused was
assisted by counsel when he made said
admission."
The private prosecutors filed a motion for
reconsideration. 9 It was denied, by Order
dated September 14, 1988. 10 In justification
of said Order, respondent Judge invoked this
Court's rulings in Morales, Jr. v. Juan Ponce
Enrile, et al., 121 SCRA 538, People v. Galit,
135 SCRA 467, People. v. Sison, 142 SCRA
219, and People v. Decierdo, 149 SCRA 496,
among others, to the effect that "in custodial
investigations the right to counsel may be
waived but the waiver shall not be valid unless
made with the assistance of counsel," and the
explicit precept in the present Constitution that
the rights in custodial investigation "cannot be
waived except in writing and in the presence
of counsel." He pointed out that the
investigation of Felipe Ramos at the PAL
Baguio Station was one "for the offense of
allegedly misappropriating the proceeds of the
tickets issued to him' and therefore clearly fell
"within the coverage of the constitutional
s provisions;" and the fact that Ramos was not
detained at the time, or the investigation was
administrative in character could not operate
to except the case "from the ambit of the
constitutional provision cited."
These Orders, of August 9, 1988 and
September 14, 1988 are now assailed in the
petition for certiorari and prohibition at bar,
filed in this Court by the private prosecutors in
the name of the People of the Philippines. By
Resolution dated October 26, 1988, the Court
required Judge Ayson and Felipe Ramos to
comment on the petition, and directed
issuance of a "TEMPORARY RESTRAINING
ORDER . . . ENJOINING the respondents from
proceeding further with the trial and/or hearing
of Criminal Case No. 3488-R (People ... vs.
Felipe Ramos), including the issuance of any
order, decision or judgment in the aforesaid
case or on any matter in relation to the same
case, now pending before the Regional Trial
Court of Baguio City, Br. 6, First Judicial
Region." The Court also subsequently
required the Solicitor General to comment on
the petition. The comments of Judge Ayson,
Felipe Ramos, and the Solicitor General have
all been filed. The Solicitor General has made
 WRITS TO SELF-INCRIMINATION ACJUCO 73
common cause with the petitioner and prays
"that the petition be given due course and
thereafter judgment be rendered setting aside
respondent Judge's Orders . . . and ordering
him to admit Exhibits 'A' and 'K' of the
prosecution." The Solicitor General has
thereby removed whatever impropriety might
have attended the institution of the instant
action in the name of the People of the
Philippines by lawyers de parte of the offended
party in the criminal action in question.
The Court deems that there has been full
ventilation of the issue — of whether or not it
was grave abuse of discretion for respondent
Judge to have excluded the People's Exhibits
A and K. It will now proceed to resolve it.
At the core of the controversy is Section 20,
Article IV of the 1973 Constitution, 11 to which
respondent Judge has given a construction
that is disputed by the People. The section
reads as follows:
SEC. 20. No person shall be compelled to be
a witness against himself Any person under
investigation for the commission of an offense
shall have the right to remain silent and to
counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any
other means which vitiates the free will shall
be used against him. Any confession obtained
in violation of this section shall be inadmissible
in evidence.
It should at once be apparent that there are
two (2) rights, or sets of rights, dealt with in the
section, namely:
1) the right against self-incrimination — i.e.,
the right of a person not to be compelled to be
a witness against himself — set out in the first
sentence, which is a verbatim reproduction of
Section 18, Article III of the 1935 Constitution,
and is similar to that accorded by the Fifth
Amendment of the American Constitution, 12
and
2) the rights of a person in custodial
interrogation, i.e., the rights of every suspect
"under investigation for the commission of an
offense."
Parenthetically, the 1987 Constitution
indicates much more clearly the individuality
and disparateness of these rights. It has
placed the rights in separate sections. The
right against self- incrimination, "No person
shall be compelled to be a witness against
himself," is now embodied in Section 17,
Article III of the 1987 Constitution. The lights
of a person in custodial interrogation, which
have been made more explicit, are now
contained in Section 12 of the same Article
III.13
Right Against Self-Incrimination
The first right, against self-incrimination,
mentioned in Section 20, Article IV of the 1973
Constitution, is accorded to every person who
gives evidence, whether voluntarily or under
compulsion of subpoena, in any civil, criminal,
or administrative proceeding. 14 The right is
NOT to "be compelled to be a witness against
himself"
The precept set out in that first sentence has a
settled meaning. 15 It prescribes an "option of
refusal to answer incriminating questions and
not a prohibition of inquiry." 16 It simply
secures to a witness, whether he be a party or
not, the right to refue to answer any particular
incriminatory question, i.e., one the answer to
which has a tendency to incriminate him for
some crime. However, the right can be
claimed only when the specific question,
incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time.
It does not give a witness the right to disregard
a subpoena, to decline to appear before the
court at the time appointed, or to refuse to
testify altogether. The witness receiving a
subpoena must obey it, appear as required,
take the stand, be sworn and answer
questions. It is only when a particular question
is addressed to him, the answer to which may
incriminate him for some offense, that he may
refuse to answer on the strength of the
constitutional guaranty.
That first sentence of Section 20, Article IV of
the 1973 Constitution does not impose on the
judge, or other officer presiding over a trial,
hearing or investigation, any affirmative
obligation to advise a witness of his right
against self-incrimination. It is a right that a
witness knows or should know, in accordance
with the well known axiom that every one is
presumed to know the law, that ignorance of
 WRITS TO SELF-INCRIMINATION ACJUCO 74
the law excuses no one. Furthermore, in the
very nature of things, neither the judge nor the
witness can be expected to know in advance
the character or effect of a question to be put
to the latter. 17
The right against self-incrimination is not self-
executing or automatically operational. It must
be claimed. If not claimed by or in behalf of the
witness, the protection does not come into
play. It follows that the right may be waived,
expressly, or impliedly, as by a failure to claim
it at the appropriate time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution
also treats of a second right, or better said,
group of rights. These rights apply to persons
"under investigation for the commission of an
offense," i.e., "suspects" under investigation
by police authorities; and this is what makes
these rights different from that embodied in the
first sentence, that against self-incrimination
which, as aforestated, indiscriminately applies
to any person testifying in any proceeding,
civil, criminal, or administrative.
This provision granting explicit rights to
persons under investigation for an offense was
not in the 1935 Constitution. It is avowedly
derived from the decision of the U.S. Supreme
Court in Miranda v. Arizona, 19 a decision
described as an "earthquake in the world of
law enforcement." 20
Section 20 states that whenever any person is
"under investigation for the commission of an
offense"--
1) he shall have the right to remain silent
and to counsel, and to be informed of such
right, 21
2) nor force, violence, threat, intimidation,
or any other means which vitiates the free will
shall be used against him; 22 and
3) any confession obtained in violation of
x x (these rights shall be inadmissible in
evidence. 23
In Miranda, Chief Justice Warren summarized
the procedural safeguards laid down for a
person in police custody, "in-custody
interrogation" being regarded as the
commencement of an adversary proceeding
against the suspect. 24
He must be warned prior to any questioning
that he has the right to remain silent, that
anything he says can be used against him in a
court of law, that he has the right to the
presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him
prior to any questioning if he so desires.
Opportunity to exercise those rights must be
afforded to him throughout the interrogation.
After such warnings have been given, such
opportunity afforded him, the individual may
knowingly and intelligently waive these rights
and agree to answer or make a statement. But
unless and until such warnings and waivers
are demonstrated by the prosecution at the
trial, no evidence obtained as a result of
interrogation can be used against him.
The objective is to prohibit "incommunicado
interrogation of individuals in a police-
dominated atmosphere, resulting in self-
incriminating statement without full warnings
of constitutional rights." 25
The rights above specified, to repeat, exist
only in "custodial interrogations," or "in-
custody interrogation of accused persons." 26
And, as this Court has already stated, by
custodial interrogation is meant "questioning
initiated by law enforcement officers after a
person has been taken into custody or
otherwise deprived of his freedom of action in
any significant way." 27 The situation
contemplated has also been more precisely
described by this Court." 28
.. . After a person is arrested and his custodial
investigation begins a confrontation arises
which at best may be tanned unequal. The
detainee is brought to an army camp or police
headquarters and there questioned and
"cross-examined" not only by one but as many
investigators as may be necessary to break
down his morale. He finds himself in strange
and unfamiliar surroundings, and every person
he meets he considers hostile to him. The
investigators are well-trained and seasoned in
their work. They employ all the methods and
means that experience and study have taught
them to extract the truth, or what may pass for
it, out of the detainee. Most detainees are
 WRITS TO SELF-INCRIMINATION ACJUCO 75
unlettered and are not aware of their
constitutional rights. And even if they were, the
intimidating and coercive presence of the
officers of the law in such an atmosphere
overwhelms them into silence. Section 20 of
the Bill of Rights seeks to remedy this
imbalance.
Not every statement made to the police by a
person involved in some crime is within the
scope of the constitutional protection. If not
made "under custodial interrogation," or
"under investigation for the commission of an
offense," the statement is not protected. Thus,
in one case, 29 where a person went to a
police precinct and before any sort of
investigation could be initiated, declared that
he was giving himself up for the killing of an
old woman because she was threatening to kill
him by barang, or witchcraft, this Court ruled
that such a statement was admissible,
compliance with the constitutional procedure
on custodial interrogation not being exigible
under the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether
the rights just discussed, i.e., (1) that against
self-incrimination and (2) those during
custodial interrogation apply to persons under
preliminary investigation or already charged in
court for a crime.
It seems quite evident that a defendant on trial
or under preliminary investigation is not under
custodial interrogation. His interrogation by the
police, if any there had been would already
have been ended at the time of the filing of the
criminal case in court (or the public
prosecutors' office). Hence, with respect to a
defendant in a criminal case already pending
in court (or the public prosecutor's office),
there is no occasion to speak of his right while
under "custodial interrogation" laid down by
the second and subsequent sentences of
Section 20, Article IV of the 1973 Constitution,
for the obvious reason that he is no longer
under "custodial interrogation."
But unquestionably, the accused in court (or
undergoing preliminary investigation before
the public prosecutor), in common with all
other persons, possesses the right against
self- incrimination set out in the first sentence
of Section 20 Article IV of the 1973
Constitution, i.e., the right to refuse to answer
a specific incriminatory question at the time
that it is put to him. 30
Additionally, the accused in a criminal case in
court has other rights in the matter of giving
testimony or refusing to do so. An accused
"occupies a different tier of protection from an
ordinary witness." Under the Rules of Court, in
all criminal prosecutions the defendant is
entitled among others-
1) to be exempt from being a witness
against himself, 31 and 2) to testify as witness
in his own behalf; but if he offers himself as a
witness he may be cross-examined as any
other witness; however, his neglect or refusal
to be a witness shall not in any manner
prejudice or be used against him. 32
The right of the defendant in a criminal case
"to be exempt from being a witness against
himself' signifies that he cannot be compelled
to testify or produce evidence in the criminal
case in which he is the accused, or one of the
accused. He cannot be compelled to do so
even by subpoena or other process or order of
the Court. He cannot be required to be a
witness either for the prosecution, or for a co-
accused, or even for himself. 33 In other words
— unlike an ordinary witness (or a party in a
civil action) who may be compelled to testify by
subpoena, having only the right to refuse to
answer a particular incriminatory question at
the time it is put to him-the defendant in a
criminal action can refuse to testify altogether.
He can refuse to take the witness stand, be
sworn, answer any question. 34 And, as the
law categorically states, "his neglect or refusal
to be a witness shall not in any manner
prejudice or be used against him." 35
If he should wish to testify in his own behalf,
however, he may do so. This is his right. But if
he does testify, then he "may be cross-
examined as any other witness." He may be
cross-examined as to any matters stated in his
direct examination, or connected therewith .
36 He may not on cross-examination refuse to
answer any question on the ground that the
answer that he will give, or the evidence he will
 WRITS TO SELF-INCRIMINATION ACJUCO 76
produce, would have a tendency to incriminate
him for the crime with which he is charged.
It must however be made clear that if the
defendant in a criminal action be asked a
question which might incriminate him, not for
the crime with which he is charged, but for
some other crime, distinct from that of which
he is accused, he may decline to answer that
specific question, on the strength of the right
against self-incrimination granted by the first
sentence of Section 20, Article IV of the 1973
Constitution (now Section 17 of the 1987
Constitution). Thus, assuming that in a
prosecution for murder, the accused should
testify in his behalf, he may not on cross-
examination refuse to answer any question on
the ground that he might be implicated in that
crime of murder; but he may decline to answer
any particular question which might implicate
him for a different and distinct offense, say,
estafa.
In fine, a person suspected of having
committed a crime and subsequently charged
with its commission in court, has the following
rights in the matter of his testifying or
producing evidence, to wit:
1) BEFORE THE CASE IS FILED IN
COURT (or with the public prosecutor, for
preliminary investigation), but after having
been taken into custody or otherwise deprived
of his liberty in some significant way, and on
being interrogated by the police: the
continuing right to remain silent and to
counsel, and to be informed thereof, not to be
subjected to force, violence, threat,
intimidation or any other means which vitiates
the free will; and to have evidence obtained in
violation of these rights rejected; and
2) AFTER THE CASE IS FILED IN
COURT — 37
a) to refuse to be a witness;
b) not to have any prejudice whatsoever
result to him by such refusal;
c) to testify in his own behalf, subject to
cross-examination by the prosecution;
d) WHILE TESTIFYING, to refuse to
answer a specific question which tends to
incriminate him for some crime other than that
for which he is then prosecuted.
It should by now be abundantly apparent that
respondent Judge has misapprehended the
nature and import of the disparate rights set
forth in Section 20, Article IV of the 1973
Constitution. He has taken them as applying to
the same juridical situation, equating one with
the other. In so doing, he has grossly erred. To
be sure, His Honor sought to substantiate his
thesis by arguments he took to be cogent and
logical. The thesis was however so far
divorced from the actual and correct state of
the constitutional and legal principles involved
as to make application of said thesis to the
case before him tantamount to totally
unfounded, whimsical or capricious exercise
of power. His Orders were thus rendered with
grave abuse of discretion. They should be as
they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case
that Felipe Ramos was not in any sense under
custodial interrogation, as the term should be
properly understood, prior to and during the
administrative inquiry into the discovered
irregularities in ticket sales in which he
appeared to have had a hand. The
constitutional rights of a person under
custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not
therefore come into play, were of no relevance
to the inquiry. It is also clear, too, that Ramos
had voluntarily answered questions posed to
him on the first day of the administrative
investigation, February 9, 1986 and agreed
that the proceedings should be recorded, the
record having thereafter been marked during
the trial of the criminal action subsequently
filed against him as Exhibit A, just as it is
obvious that the note (later marked as Exhibit
K) that he sent to his superiors on February
8,1986, the day before the investigation,
offering to compromise his liability in the
alleged irregularities, was a free and even
spontaneous act on his part. They may not be
excluded on the ground that the so-called
"Miranda rights" had not been accorded to
Ramos.
His Honor adverts to what he perceives to be
the "greater danger x x (of) the violation of the
right of any person against self-incrimination
when the investigation is conducted by the
 WRITS TO SELF-INCRIMINATION ACJUCO 77

complaining parties, complaining companies, violation of Section 20, Article IV of the 1973
or complaining employers because being Constitution, but simply on the general,
interested parties, unlike the police agencies incontestable proposition that involuntary or
who have no propriety or pecuniary interest to coerced statements may not in justice be
protect, they may in their over-eagerness or received against the makers thereof, and
zealousness bear heavily on their hapless really should not be accorded any evidentiary
suspects, whether employees or not, to give value at all.
statements under an atmosphere of moral
coercion, undue ascendancy and undue WHEREFORE, the writ of certiorari is granted
influence." It suffices to draw attention to the annulling and setting aside the Orders of the
specific and peremptory requirement of the respondent Judge in Criminal Case No. 3488-
law that disciplinary sanctions may not be R, dated August 9, 1988 and September 14,
imposed on any employee by his employer 1988, and he is hereby ordered to admit in
until and unless the employee has been evidence Exhibits "A" and "K" of the
accorded due process, by which is meant that prosecution in said Criminal Case No. 3488-R,
the latter must be informed of the offenses and thereafter proceed with the trial and
ascribed to him and afforded adequate time adjudgment thereof. The temporary
and opportunity to explain his side. The restraining order of October 26, 1988 having
requirement entails the making of statements, become functus officio, is now declared of no
oral or written, by the employee under such further force and effect.
administrative investigation in his defense,
with opportunity to solicit the assistance of
counsel, or his colleagues and friends. The
employee may, of course, refuse to submit any
statement at the investigation, that is his
privilege. But if he should opt to do so, in his
defense to the accusation against him, it would
be absurd to reject his statements, whether at
the administrative investigation, or at a
subsequent criminal action brought against
him, because he had not been accorded, prior
to his making and presenting them, his
"Miranda rights" (to silence and to counsel and
to be informed thereof, etc.) which, to repeat,
are relevant only in custodial investigations.
Indeed, it is self-evident that the employee's
statements, whether called "position paper,"
"answer," etc., are submitted by him precisely
so that they may be admitted and duly
considered by the investigating officer or
committee, in negation or mitigation of his
liability.

Of course the possibility cannot be discounted

that in certain instances the judge's expressed
apprehensions may be realized, that violence
or intimidation, undue pressure or influence be
brought to bear on an employee under
investigation — or for that matter, on a person
being interrogated by another whom he has
supposedly offended. In such an event, any
admission or confession wrung from the
person under interrogation would be
inadmissible in evidence, on proof of the vice
or defect vitiating consent, not because of a
 WRITS TO SELF-INCRIMINATION ACJUCO 78
G.R. No. L-29169 August 19, 1968
ROGER CHAVEZ, petitioner,
vs.
THE HONORABLE COURT OF APPEALS,
THE PEOPLE OF THE PHILIPPINES and
THE WARDEN OF THE CITY JAIL OF
MANILA, respondents.
Estanislao E. Fernandez and Fausto Arce
for petitioner.
Office of the Solicitor General for
respondents.
SANCHEZ, J.:
The thrust of petitioner's case presented in his
original and supplementary petitions invoking
jurisdiction of this Court is that he is entitled,
on habeas corpus, to be freed from
imprisonment upon the ground that in the trial
which resulted in his conviction1 he was
denied his constitutional right not to be
compelled to testify against himself. There is
his prayer, too, that, should he fail in this, he
be granted the alternative remedies of
certiorari to strike down the two resolutions of
the Court of Appeals dismissing his appeal for
failure to file brief, and of mandamus to direct
the said court to forward his appeal to this
Court for the reason that he was raising purely
questions of law.
The indictment in the court below — the third
amended information — upon which the
judgment of conviction herein challenged was
rendered, was for qualified theft of a motor
vehicle, one (1) Thunderbird car, Motor No.
H9YH-143003, with Plate No. H-16648 Pasay
City '62 together with its accessories worth
P22,200.00. Accused were the following:
Petitioner herein, Roger Chavez, Ricardo
Sumilang alias "Romeo Vasquez", Edgardo P.
Pascual alias "Ging" Pascual, Pedro Rebullo
alias "Pita", Luis Asistio alias "Baby" Asistio,
Lorenzo Meneses alias "Lory" Meneses, Peter
Doe, Charlie Doe and Paul Doe.2
Averred in the aforesaid information was that
on or about the 14th day of November, 1962,
in Quezon City, the accused conspired, with
intent of gain, abuse of confidence and without
the consent of the owner thereof, Dy Sun Hiok
y Lim, in asporting the motor vehicle above-
described.
Upon arraignment, all the accused, except the
three Does who have not been identified nor
apprehended, pleaded not guilty.1äwphï1.ñët
On July 23, 1963, trial commenced before the
judge presiding Branch IX of the Court of First
Instance of Rizal in Quezon City.
The trial opened with the following dialogue,
which for the great bearing it has on this case,
is here reproduced:.
COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the
accused].
ATTY. CARBON [Counsel for petitioner
Chavez]:
I am quite taken by surprise, as counsel for the
accused Roger Chavez, with this move of the
Fiscal in presenting him as his witness. I
object.
COURT:
On what ground, counsel? .
ATTY. CARBON:
On the ground that I have to confer with my
client. It is really surprising that at this stage,
without my being notified by the Fiscal, my
client is being presented as witness for
the prosecution. I want to say in passing that it
is only at this very moment that I come to know
about this strategy of the prosecution.
COURT (To the Fiscal):
You are not withdrawing the information
against the accused Roger Chavez by making
[him a] state witness?.
FISCAL GRECIA:
I am not making him as state witness, Your
Honor.
 WRITS TO SELF-INCRIMINATION ACJUCO 79
I am only presenting him as an ordinary
witness.
ATTY. CARBON:
As a matter of right, because it will incriminate
my client, I object.
COURT:
The Court will give counsel for Roger Chavez
fifteen minutes within which to confer and
explain to his client about the giving of his
testimony.
xxx xxx xxx
COURT: [after the recess]
Are the parties ready? .
FISCAL:
We are ready to call on our first witness, Roger
Chavez.
ATTY. CARBON:
As per understanding, the proceeding was
suspended in order to enable me to confer with
my client.
I conferred with my client and he assured me
that he will not testify for the prosecution this
morning after I have explained to him the
consequences of what will transpire.
COURT:
What he will testify to does not necessarily
incriminate him, counsel.
And there is the right of the prosecution to ask
anybody to act as witness on the witness-
stand including the accused.
If there should be any question that is
incriminating then that is the time for counsel
to interpose his objection and the court will
sustain him if and when the court feels that the
answer of this witness to the question would
incriminate him.
Counsel has all the assurance that the court
will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have
the accused called on the witnessstand.
ATTY. CARBON:
I submit.
xxx xxx xxx
ATTY. CRUZ [Counsel for defendants Pascual
and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez
being called to testify for the prosecution is
something so sudden that has come to the
knowledge of this counsel.
This representation has been apprised of the
witnesses embraced in the information.
For which reason I pray this court that I be
given at least some days to meet whatever
testimony this witness will bring about. I
therefore move for postponement of today's
hearing.
COURT:
The court will give counsel time within which to
prepare his cross-examination of this witness.
ATTY. CRUZ:
I labored under the impression that the
witnesses for the prosecution in this criminal
case are those only listed in the information.
I did not know until this morning that one of the
accused will testify as witness for the
prosecution.
COURT:
That's the reason why the court will go along
with counsels for the accused and will give
them time within which to prepare for their
cross-examination of this witness.
 WRITS TO SELF-INCRIMINATION ACJUCO 80
The court will not defer the taking of the direct
examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy
and sell merchant, presently detained at the
Manila Police Department headquarters, after
being duly sworn according to law, declared as
follows:
ATTY. IBASCO [Counsel for defendant Luis
Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the
accused in this case No. Q-5311.
The information alleges conspiracy. Under
Rule 123, Section 12, it states:
'The act or declaration of a conspirator relating
to the conspiracy and during its existence, may
be given in evidence against the co-
conspirator after the conspiracy is shown by
evidence other than such act or declaration.'
COURT:
That is premature, counsel. Neither the court
nor counsels for the accused know what the
prosecution events to establish by calling this
witness to the witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the
"direct examination" of Roger Chavez by
"Fiscal Grecia".
Came the judgment of February 1, 1965. The
version of the prosecution as found by the
court below may be briefly narrated as follows:
A few days before November 12, 1962, Roger
Chavez saw Johnson Lee, a Chinese, driving
a Thunderbird car. With Ricardo Sumilang
(movie actor Romeo Vasquez) in mind, whom
he knew was in the market for such a car,
Chavez asked Lee whether his car was for
sale. Lee answered affirmatively and left his
address with Chavez. Then, on November 12,
Chavez met Sumilang at a barbershop
informed him about the Thunderbird. But
Sumilang said that he had changed his mind
about buying a new car. Instead, he told
Chavez that he wanted to mortgage his Buick
car for P10,000.00 to cover an indebtedness
in Pasay City. Upon the suggestion of Chavez,
they went to see Luis Asistio, who he knew
was lending money on car mortgages and
who, on one occasion, already lent Romeo
Vasquez P3,000.00 on the same Buick car.
Asistio however told the two that he had a
better idea on how to raise the money. His plan
was to capitalize on Romeo Vasquez'
reputation as a wealthy movie star, introduce
him as a buyer to someone who was selling a
car and, after the deed of sale is signed, by
trickery to run away with the car. Asistio would
then register it, sell it to a third person for a
profit. Chavez known to be a car agent was
included in the plan. He furnished the name of
Johnson Lee who was selling his Thunderbird.
1äwphï1.ñët
In the morning of November 14, Chavez
telephoned Johnson Lee and arranged for an
appointment. Sometime in the afternoon.
Chavez and Sumilang met Lee in his
Thunderbird on Highway 54. Sumilang was
introduced as the interested buyer. Sumilang's
driver inspected the car, took the wheel for a
while. After Sumilang and Lee agreed on the
purchase price (P21.000.00), they went to
Binondo to Johnson Lee's cousin, Dy Sun
Hiok, in whose name the car was registered.
Thereafter, they went to see a lawyer notary
public in Quezon City, known to Chavez for the
drafting of the deed of sale. After the deed of
sale was drawn up, it was signed by Sumilang
as the vendee, Dy Sun Hiok the vendor, and
Sumilang's driver and Johnson Lee the
witnesses thereto.
As payment was to be made at Eugene's
restaurant in Quezon City, all of them then
drove in the Thunderbird car to that place. The
deed of sale and other papers remained in the
pockets of Johnson Lee.
At Eugene's, a man approached Sumilang
with a note which stated that the money was
 WRITS TO SELF-INCRIMINATION ACJUCO 81
ready at the Dalisay Theater. Sumilang then
wrote on the same note that the money should
be brought to the restaurant. At the same time
he requested Lee to exhibit the deed of sale of
the car to the note bearer.4
Then, the two Chinese were left alone in the
restaurant. For Sumilang, who had left the
table to pose for pictures with some fans and
come back, again left never to return. So did
Chavez, who disappeared after he left on the
pretext of buying cigarettes. The two Chinese
could not locate Sumilang and Chavez. They
went out to the place where the Thunderbird
was parked, found that it was gone. They then
immediately reported its loss to the police.
Much later, the NBI recovered the already
repainted car and impounded it.
Right after the meeting at Eugene's, Chavez,
Sumilang and Asistio converged that same
day at Barrio Fiesta, a restaurant at Highway
54 near the Balintawak monument in
Caloocan. There, Asistio handed to Sumilang
P1,000.00 cash and a golf set worth P800.00
as the latter's share in the transaction. On the
14th of November, the registration of the car
was transferred in the name of Sumilang in
Cavite City, and three days later, in the name
of Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's
version, corroborated in part by Asistio, may
be condensed as follows:
In the last week of September, 1962, Sumilang
saw Roger Chavez at a gas station. The latter
informed him that there was a Thunderbird
from Clark Field for sale for a price between
P20,000.00 and P22,000.00. Chavez said that
it could be held for him with a down payment
of P10,000.00.
To raise this sum, Sumilang and Chavez, on
October 1, went to the house of a certain Nena
Hernaez de los Reyes who wrote out a check
for P5,000.00 as a loan to Sumilang. That
check was exhibited in court. Sumilang and
Chavez then went to Pasay City to see a
certain Mario Baltazar, an agent of the Pasay
City Mayor, and Narsing Cailles, Chief of the
Fire Department. Sumilang asked the two for
a P10,000-loan backed up by the P5,000.00-
check aforesaid on condition that it should not
be cashed immediately as there were not
enough funds therefor. Baltazar and Cailles
agreed to give the money the nextday as long
as the check would be left with them and
Sumilang would sign a promissory note for
P10,000.00. Baltazar later informed Sumilang
that Chavez picked up the money the next day.
Four or five days afterwards, Chavez returned
P4,000.00 to Sumilang because P6,000.00
was enough for the deposit. And so, Sumilang
gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning
of November, Chavez asked Sumilang for
another P3,000.00. Sumilang sent Chavez to
Baltazar and Cailles, with a note requesting
that they accommodate him once more. He
also sent a check, again without funds.
Baltazar gave the money after verifying the
authenticity of the note.
On November 14, Chavez appeared at
Sumilang's house with the news that the car
was ready if Sumilang was ready with the rest
of the money. So Sumilang got P9,000.00 from
his mother and another P4,000.00 from his
aparador. He immediately gave P6,000.00 to
Chavez, intending to pay out the balance upon
the car's delivery. It was then that Chavez told
Sumilang that the car was already bought by a
Chinese who would be the vendor.
The purchase price finally agreed upon
between Sumilang and Johnson Lee was
P21,000.00, plus P500.00 agents commission
at the expense of the buyer. Sumilang told Lee
that he already paid part of the price to
Chavez.
At Eugene's, Chavez asked Sumilang for the
balance. Sumilang accommodated. There,
Sumilang, also saw a friend, "Ging" Pascual.
In the course of their conversation at the bar,
Sumilang mentioned the proposed transaction
thru Chavez. Pascual warned that Chavez
was a "smart" agent and advised that
Sumilang should have a receipt for his money.
A certain Bimbo, a friend of Pascual, offered to
make out a receipt for Chavez to sign.
After Sumilang returned from posing for some
photographs with some of his fans, Bimbo
showed him the receipt already signed by
Chavez. Sumilang requested Pascual and
Bimbo to sign the receipt as witnesses. And
 WRITS TO SELF-INCRIMINATION ACJUCO 82
they did. This receipt was offered as an exhibit
by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's,
Johnson Lee turned over to him the deed of
sale, the registration papers and the keys to
the car. After shaking hands with Lee,
Sumilang drove away in the car with his driver
at the wheel.
Two or three days afterwards, Sumilang
dropped by the Barrio Fiesta on his way to a
film shooting at Bulacan. He saw Asistio with
many companions. Asistio liked his
Thunderbird parked outside. Asistio offered to
buy it from him for P22,500.00. As the offer
was good, and knowing Asistio's and his
friends' reputation for always getting what they
wanted, Sumilang consented to the sale.
Asistio tendered a down payment of
P1,000.00; the balance he promised to pay the
next day after negotiating with some financing
company. Before said balance could be paid,
the car was impounded.
The trial court gave evidence to Sumilang's
averment, strengthened by Baltazar's and
Cailles' corroborations, that he paid good
money for the car. Sumilang was thus cleared.
So was Asistio whom the trial court believed to
be a mere buyer of the car. And so, the
prosecution's theory of conspiracy was
discounted.
As to the other accused, the court found no
case against Pedro Rebullo alias "Pita" and
Lorenzo Meneses alias "Lory". The accused
"Ging" Pascual was also acquitted for in the
first place he was not identified by Johnson
Lee in court.
As to Roger Chavez, however, the court had
this to say: "Roger Chavez does not offer any
defense. As a matter of fact, his testimony as
witness for the prosecution establishes his
guilt beyond reasonable doubt."5 The trial
court branded him "a self-confessed culprit".6
The court further continued:
It is not improbable that true to the saying that
misery loves company Roger Chavez tried to
drag his co-accused down with him by coloring
his story with fabrications which he expected
would easily stick together what with the
newspaper notoriety of one and the
sensationalism caused by the other. But
Roger Chavez' accusations of Asistio's
participation is utterly uncorroborated. And
coming, as it does, from a man who has had
at least two convictions for acts not very
different from those charged in this
information, the Court would be too gullible if it
were to give full credence to his words even if
they concerned a man no less notorious than
himself.7
The trial court then came to the conclusion that
if Johnson Lee was not paid for his car, he had
no one but Roger Chavez to blame.
The sum of all these is that the trial court freed
all the accused except Roger Chavez who was
found guilty beyond reasonable doubt of the
crime of qualified theft. He was accordingly
sentenced to suffer an indeterminate penalty
of not less than ten (10) years, one (1) day, as
minimum and not more than fourteen (14)
years, eight (8) months and one (1) day as
maximum, to indemnify Dy Sun Hiok and/or
Johnson Lee in the sum of P21,000.00 without
subsidiary imprisonment in case of insolvency,
to undergo the accessory penalties prescribed
by law, and to pay the costs. The Thunderbird
car then in the custody of the NBI was ordered
to be turned over to Ricardo Sumilang, who
was directed to return to Asistio the sum of
P1,000.00 unless the latter chose to pay
P21,500.00, representing the balance of the
contract price for the car.
The foregoing sentence was promulgated on
March 8, 1965. Roger Chavez appealed to the
Court of Appeals.
On April 18, 1968, the Court of Appeals
required Atty. Natividad Marquez, counsel for
Roger Chavez, to show cause within ten days
from notice why Chavez' appeal should not be
considered abandoned and dismissed.
Reason for this is that said lawyer received
notice to file brief on December 28, 1967 and
the period for the filing thereof lapsed on
January 27, 1968 without any brief having
been filed.
On May 13, 1968, Atty. Marquez registered a
detailed written explanation. She also stated
that if she were allowed to file appellant's brief
she would go along with the factual findings of
 WRITS TO SELF-INCRIMINATION ACJUCO 83
the court below but will show however that its
conclusion is erroneous.8
On May 14, 1968, the Court of Appeals,
despite the foregoing explanation, resolved to
dismiss the appeal. A move to reconsider was
unavailing. For, on June 21, 1968, the Court of
Appeals, through a per curiam resolution,
disposed to maintain its May 14 resolution
dismissing the appeal, directed the City
Warden of Manila where Chavez is confined
by virtue of the warrant of arrest issued by the
Court of Appeals, to turn him over to
Muntinlupa Bilibid Prisons pending execution
of the judgment below, and ordered remand of
the case to the Quezon City court for execution
of judgment.
It was at this stage that the present
proceedings were commenced in this Court.
Upon the petitions, the return, and the reply,
and after hearing on oral arguments, we now
come to grips with the main problem
presented.
We concentrate attention on that phase of the
issues which relates petitioner's assertion that
he was compelled to testify against himself.
For indeed if this one question is resolved in
the affirmative, we need not reach the others;
in which case, these should not be pursued
here.
1. Petitioner's plea on this score rests upon his
averment, with proof, of violation of his right —
constitutionally entrenched — against self-
incrimination. He asks that the hand of this
Court be made to bear down upon his
conviction; that he be relieved of the effects
thereof. He asks us to consider the
constitutional injunction that "No person shall
be compelled to be a witness against
himself,"9 fully echoed in Section 1, Rule 115,
Rules of Court where, in all criminal
prosecutions, the defendant shall be entitled:
"(e) To be exempt from being a witness
against himself." .
It has been said that forcing a man to be a
witness against himself is at war with "the
fundamentals of a republican government"; 10
that [i]t may suit the purposes of despotic
power but it can not abide the pure
atmosphere of political liberty and personal
freedom."11 Mr. Justice Abad Santos recounts
the historical background of this constitutional
inhibition, thus: " "The maxim Nemo tenetur
seipsum accusare had its origin in a protest
against the inquisitorial and manifestly unjust
methods of interrogating accused persons,
which has long obtained in the continental
system, and, until the expulsion of the Stuarts
from the British throne in 1688, and the
erection of additional barriers for the protection
of the people against the exercise of arbitrary
power, was not uncommon even in England.
While the admissions of confessions of the
prisoner, when voluntarily and freely made,
have always ranked high in the scale of
incriminating evidence, if an accused person
be asked to explain his apparent connection
with a crime under investigation, the ease with
which the questions put to him may assume an
inquisitorial character, the temptation to press,
the witness unduly, to browbeat him if he be
timid or reluctant, to push him into a corner,
and to entrap him into fatal contradictions,
which is so painfully evident in many of the
earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give
rise to a demand for its total abolition. The
change in the English criminal procedure in
that particular seems to be founded upon no
statute and no judicial opinion, but upon a
general and silent acquiescence of the courts
in a popular demand. But, however adopted, it
has become firmly embedded in English, as
well as in American jurisprudence. So deeply
did the iniquities of the ancient system impress
themselves upon the minds of the American
colonists that the states, with one accord,
made a denial of the right to question an
accused person a part of their fundamental
law, so that a maxim which in England was a
mere rule of evidence, became clothed in this
country with the impregnability of a
constitutional enactment." (Brown vs. Walker,
161 U.S., 591, 597; 40 Law. ed., 819, 821)."
12 Mr. Justice Malcolm, in expressive
language, tells us that this maxim was
recognized in England in the early days "in a
revolt against the thumbscrew and the rack."
13 An old Philippine case [1904] 14 speaks of
this constitutional injunction as "older than the
Government of the United States"; as having
"its origin in a protest against the inquisitorial
methods of interrogating the accused person";
and as having been adopted in the Philippines
 WRITS TO SELF-INCRIMINATION ACJUCO 84
"to wipe out such practices as formerly
prevailed in these Islands of requiring accused
persons to submit to judicial examinations,
and to give testimony regarding the offenses
with which they were charged."
So it is then that this right is "not merely a
formal technical rule the enforcement of which
is left to the discretion of the court"; it is
mandatory; it secures to a defendant a
valuable and substantive right; 15 it is
fundamental to our scheme of justice. Just a
few months ago, the Supreme Court of the
United States (January 29, 1968), speaking
thru Mr. Justice Harlan warned that "[t]he
constitutional privilege was intended to shield
the guilty and imprudent as well as the
innocent and foresighted." 16
It is in this context that we say that the
constitutional guarantee may not be treated
with unconcern. To repeat, it is mandatory; it
secures to every defendant a valuable and
substantive right. Tañada and Fernando
(Constitution of the Philippines, 4th ed., vol. I,
pp. 583-584) take note of U.S. vs. Navarro,
supra, which reaffirms the rule that the
constitutional proscription was established on
broad grounds of public policy and humanity;
of policy because it would place the witness
against the strongest temptation to commit
perjury, and of humanity because it would be
to extort a confession of truth by a kind of
duress every species and degree of which the
law abhors. 17
Therefore, the court may not extract from a
defendant's own lips and against his will an
admission of his guilt. Nor may a court as
much as resort to compulsory disclosure,
directly or indirectly, of facts usable against
him as a confession of the crime or the
tendency of which is to prove the commission
of a crime. Because, it is his right to forego
testimony, to remain silent, unless he chooses
to take the witness stand — with undiluted,
unfettered exercise of his own free, genuine
will.
Compulsion as it is understood here does not
necessarily connote the use of violence; it may
be the product of unintentional statements.
Pressure which operates to overbear his will,
disable him from making a free and rational
choice, or impair his capacity for rational
judgment would in our opinion be sufficient. So
is moral coercion "tending to force testimony
from the unwilling lips of the defendant." 18
2. With the foregoing as guideposts, we now
turn to the facts. Petitioner is a defendant in a
criminal case. He was called by the
prosecution as the first witness in that case to
testify for the People during the first day of trial
thereof. Petitioner objected and invoked the
privilege of self-incrimination. This he
broadened by the clear cut statement that he
will not testify. But petitioner's protestations
were met with the judge's emphatic statement
that it "is the right of the prosecution to ask
anybody to act as witness on the witness stand
including the accused," and that defense
counsel "could not object to have the accused
called on the witness stand." The cumulative
impact of all these is that accused-petitioner
had to take the stand. He was thus
peremptorily asked to create evidence against
himself. The foregoing situation molds a solid
case for petitioner, backed by the Constitution,
the law, and jurisprudence.
Petitioner, as accused, occupies a different
tier of protection from an ordinary witness.
Whereas an ordinary witness may be
compelled to take the witness stand and claim
the privilege as each question requiring an
incriminating answer is shot at him, 19 and
accused may altogether refuse to take the
witness stand and refuse to answer any and
all questions. 20 For, in reality, the purpose of
calling an accused as a witness for the People
would be to incriminate him. 21 The rule
positively intends to avoid and prohibit the
certainly inhuman procedure of compelling a
person "to furnish the missing evidence
necessary for his conviction." 22 This rule may
apply even to a co-defendant in a joint trial.23
And the guide in the interpretation of the
constitutional precept that the accused shall
not be compelled to furnish evidence against
himself "is not the probability of the evidence
but it is the capability of abuse." 24 Thus it is,
that it was undoubtedly erroneous for the trial
judge to placate petitioner with these words:.
What he will testify to does not necessarily
incriminate him, counsel.
 WRITS TO SELF-INCRIMINATION ACJUCO 85
And there is the right of the prosecution to ask
anybody to act as witness on the witness-
stand including the accused.
If there should be any question that is
incriminating then that is the time for counsel
to interpose his objection and the court will
sustain him if and when the court feels that the
answer of this witness to the question would
incriminate him.
Counsel has all the assurance that the court
will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have
the accused called on the witness stand.
Paraphrasing Chief Justice Marshall in Aaron
Burr's Trial, Robertsons Rep. I, 208, 244,
quoted in VIII Wigmore, p. 355, 25 While a
defendant's knowledge of the facts remains
concealed within his bosom, he is safe; but
draw it from thence, and he is exposed" — to
conviction.
The judge's words heretofore quoted — "But
surely counsel could not object to have the
accused called on the witness stand" —
wielded authority. By those words, petitioner
was enveloped by a coercive force; they
deprived him of his will to resist; they
foreclosed choice; the realities of human
nature tell us that as he took his oath to tell the
truth, the whole truth and nothing but the truth,
no genuine consent underlay submission to
take the witness stand. Constitutionally sound
consent was absent.
3. Prejudice to the accused for having been
compelled over his objections to be a witness
for the People is at once apparent. The record
discloses that by leading questions Chavez,
the accused, was made to affirm his statement
given to the NBI agents on July 17, 1963 at
5:00 o'clock in the afternoon. 26 And this
statement detailed the plan and execution
thereof by Sumilang (Vasquez), Asistio and
himself to deprive the Chinese of his
Thunderbird car. And he himself proceeded to
narrate the same anew in open court. He
identified the Thunderbird car involved in the
case. 27
The decision convicting Roger Chavez was
clearly of the view that the case for the People
was built primarily around the admissions of
Chavez himself. The trial court described
Chavez as the "star witness for the
prosecution". Indeed, the damaging facts
forged in the decision were drawn directly from
the lips of Chavez as a prosecution witness
and of course Ricardo Sumilang for the
defense. There are the unequivocal
statements in the decision that "even accused
Chavez" identified "the very same Thunderbird
that Johnson Lee had offered for sale"; that
Chavez "testimony as witness for the
prosecution establishes his guilt beyond
reasonable doubt and that Chavez is "a self-
confessed culprit". 1äwphï1.ñët
4. With all these, we have no hesitancy in
saying that petitioner was forced to testify to
incriminate himself, in full breach of his
constitutional right to remain silent. It cannot
be said now that he has waived his right. He
did not volunteer to take the stand and in his
own defense; he did not offer himself as a
witness; on the contrary, he claimed the right
upon being called to testify. If petitioner
nevertheless answered the questions inspite
of his fear of being accused of perjury or being
put under contempt, this circumstance cannot
be counted against him. His testimony is not of
his own choice. To him it was a case of
compelled submission. He was a cowed
participant in proceedings before a judge who
possessed the power to put him under
contempt had he chosen to remain silent. Nor
could he escape testifying. The court made it
abundantly clear that his testimony at least on
direct examination would be taken right then
and thereon the first day of the trial.
It matters not that, after all efforts to stave off
petitioner's taking the stand became fruitless,
no objections to questions propounded to him
were made. Here involve is not a mere
question of self-incrimination. It is a
defendant's constitutional immunity from being
called to testify against himself. And the
objection made at the beginning is a
continuing one. 1äwphï1.ñët
There is therefore no waiver of the privilege.
"To be effective, a waiver must be certain and
unequivocal, and intelligently, understandably,
and willingly made; such waiver following only
 WRITS TO SELF-INCRIMINATION ACJUCO 86
where liberty of choice has been fully
accorded. After a claim a witness cannot
properly be held to have waived his privilege
on vague and uncertain evidence." 28 The
teaching in Johnson vs. Zerbst 29 is this: "It
has been pointed out that "courts indulge
every reasonable presumption against waiver"
of fundamental constitutional rights and that
we "do not presume acquiescence in the loss
of fundamental rights." A waiver is ordinarily
an intentional relinquishment or abandonment
of a known right or privilege." Renuntiatio non
praesumitur.
The foregoing guidelines, juxtaposed with the
circumstances of the case heretofore adverted
to, make waiver a shaky defense. It cannot
stand. If, by his own admission, defendant
proved his guilt, still, his original claim remains
valid. For the privilege, we say again, is a
rampart that gives protection - even to the
guilty. 30
5. The course which petitioner takes is correct.
Habeas corpus is a high prerogative writ. 31 It
is traditionally considered as an exceptional
remedy to release a person whose liberty is
illegally restrained such as when the
accused's constitutional rights are
disregarded. 32 Such defect results in the
absence or loss of jurisdiction 33 and therefore
invalidates the trial and the consequent
conviction of the accused whose fundamental
right was violated. 34 That void judgment of
conviction may be challenged by collateral
attack, which precisely is the function of
habeas corpus. 35 This writ may issue even if
another remedy which is less effective may be
availed of by the defendant. 36 Thus, failure
by the accused to perfect his appeal before the
Court of Appeals does not preclude a recourse
to the writ. 37 The writ may be granted upon a
judgment already final. 38 For, as explained in
Johnson vs. Zerbst, 39 the writ of habeas
corpus as an extraordinary remedy must be
liberally given effect 40 so as to protect well a
person whose liberty is at stake. The propriety
of the writ was given the nod in that case,
involving a violation of another constitutional
right, in this wise:
Since the Sixth Amendment constitutionally
entitles one charged with crime to the
assistance of Counsel, compliance with this
constitutional mandate is an essential
jurisdictional prerequisite to a Federal Court's
authority. When this right is properly waived,
the assistance of Counsel is no longer a
necessary element of the Court's jurisdiction to
proceed to conviction and sentence. If the
accused, however, is not represented by
Counsel and has not competently and
intelligently waived his constitutional right, the
Sixth Amendment stands as a jurisdictional
bar to a valid conviction and sentence
depriving him of his liberty. A court's
jurisdiction at the beginning of trial may be lost
"in the course of the proceedings" due to
failure to complete the court — as the Sixth
Amendment requires — by providing Counsel
for an accused who is unable to obtain
Counsel, who has not intelligently waived this
constitutional guaranty, and whose life or
liberty is at stake. If this requirement of the
Sixth Amendment is not complied with, the
court no longer has jurisdiction to proceed.
The judgment of conviction pronounced by a
court without jurisdiction is void, and one
imprisoned thereunder may obtain release of
habeas corpus. 41
Under our own Rules of Court, to grant the
remedy to the accused Roger Chavez whose
case presents a clear picture of disregard of a
constitutional right is absolutely proper.
Section 1 of Rule 102 extends the writ, unless
otherwise expressly provided by law, "to all
cases of illegal confinement or detention by
which any person is deprived of his liberty, or
by which the rightful custody of any person is
withheld from the person entitled thereto.
Just as we are about to write finis to our task,
we are prompted to restate that: "A void
judgment is in legal effect no judgment. By it
no rights are divested. From it no rights can be
obtained. Being worthless in itself, all
proceedings founded upon it are equally
worthless. It neither binds nor bars any one. All
acts performed under it and all claims flowing
out of it are void. The parties attempting to
enforce it may be responsible as trespassers.
... " 42
6. Respondents' return 43 shows that
petitioner is still serving under a final and valid
judgment of conviction for another offense. We
should guard against the improvident issuance
of an order discharging a petitioner from
confinement. The position we take here is that
 WRITS TO SELF-INCRIMINATION ACJUCO 87

petitioner herein is entitled to liberty thru

habeas corpus only with respect to Criminal
Case Q-5311 of the Court of First Instance of
Rizal, Quezon City Branch, under which he
was prosecuted and convicted.

Upon the view we take of this case, judgment

is hereby rendered directing the respondent
Warden of the City Jail of Manila or the
Director of Prisons or any other officer or
person in custody of petitioner Roger Chavez
by reason of the judgment of the Court of First
Instance of Rizal, Quezon City Branch, in
Criminal Case Q-5311, entitled "People of the
Philippines, plaintiff, vs. Ricardo Sumilang, et
al., accused," to discharge said Roger Chavez
from custody, unless he is held, kept in
custody or detained for any cause or reason
other than the said judgment in said Criminal
Case Q-5311 of the Court of First Instance of
Rizal, Quezon City Branch, in which event the
discharge herein directed shall be effected
when such other cause or reason ceases to
exist.

No costs. So ordered.
 WRITS TO SELF-INCRIMINATION ACJUCO 88
G.R. No. 16444 September 8, 1920
EMETERIA VILLAFLOR, petitioner,
vs.
RICARDO SUMMERS, sheriff of the City of
Manila, respondent.
Alfredo Calupitan, and Gibbs, McDonough
& Johnson for petitioner.
Assistant City of Fiscal Felix for
respondent.
MALCOLM, J.:
The petitioner prays that a writ of habeas
corpus issue to restore her to her liberty.
The facts are not dispute. In a criminal case
pending before the Court of First Instance of
the city of Manila, Emeteria Villaflor and
Florentino Souingco are charged with the
crime of adultery. On this case coming on for
trial before the Hon. Pedro Concepcion, Judge
of First Instance, upon the petitioner of the
assistant fiscal for the city of Manila, the court
ordered the defendant Emeteria Villaflor, nor
become the petitioner herein, to submit her
body to the examination of one or two
competent doctors to determine if she was
pregnant or not. The accused refused to obey
the order on the ground that such examination
of her person was a violation of the
constitutional provision relating to self-
incrimination. Thereupon she was found in
contempt of court and was ordered to be
committed to Bilibid Prison until she should
permit the medical examination required by
the court.
The sole legal issue from the admitted facts is
whether the compelling of a woman to permit
her body to be examined by physicians to
determine if she is pregnant, violates that
portion of the Philippine Bill of Rights and that
portion of our Code of Criminal Procedure
which find their origin in the Constitution of the
United States and practically all state
constitutions and in the common law rules of
evidence, providing that no person shall be
compelled in any criminal case to be a witness
against himself. (President's Instructions to the
Philippine Commission; Act of Congress of
July 1, 1902, section 5, paragraph 3; Act of
Congress of August 29, 1916, section 3;
paragraph 3; Code of Criminal Procedure,
section 15 [4]; United States Constitution, fifth
amendment.) Counsel for petitioner argues
that such bodily exhibition is an infringement
of the constitutional provision; the
representative of the city fiscal contends that it
is not an infringement of the constitutional
provision. The trial judge in the instant case
has held with the fiscal; while it is brought to
our notice that a judge of the same court has
held on an identical question as contended for
by the attorney for the accused and petitioner.
The authorities are abundant but conflicting.
What may be termed the conservative courts
emphasize greatly the humanitarianism of the
constitutional provisions and are pleased to
extend the privilege in order that its mantle
may cover any fact by which the accused is
compelled to make evidence against himself.
(Compare State vs. Jacobs [1858], 50 N. C.,
259 with State vs. Ah Chuey [1879], 14 Nev.,
79. See further State vs. Ah Nordstrom [1893],
7 Wash., 506; State vs. Height [1902]. 117
Iowa., 650; Thornton vs. State [1903], 117
Wis., 338.) A case concordant with this view
and almost directly in point is People vs.
McCoy ([1873], 45 How. Pr., 216). A woman
was charged with the crime of infanticide. The
corner directed two physicians to go to the jail
and examine her private parts to determine
whether she had recently been delivered of a
child. She objected to the examination, but
being threatened with force, yielded, and the
examination was had. The evidence of these
physicians was offered at the trial and ruled
out. The court said that the proceeding was in
violation of the spirit and meaning of the
Constitution, which declares that "no person
shall be compelled in any criminal case to be
a witness against himself." Continuing, the
court said: "They might as well have sworn the
prisoner, and compelled her, by threats, to
testify that she had been pregnant, and had
been delivered of a child, as to have compelled
her, by threats, to allow them to look into her
person, with the aid of a speculum, to
ascertain whether she had been pregnant and
been delivered of a child. . . . Has this court the
right to compel the prisoner now to submit to
an examination they are of the opinion she is
not a virgin, and has had a child? It is not
possible that this court has that right; and it is
too clear to admit of argument that evidence
thus obtained would be inadmissible against
the prisoner."
 WRITS TO SELF-INCRIMINATION ACJUCO 89
It may be revealing a judicial secret, but
nevertheless we cannot refrain from saying
that, greatly impressed with the weight of
these decisions, especially the one written by
Mr. Justice McClain, in State vs. Height, supra,
the instant case was reported by the writer with
the tentative recommendation that the court
should lay down the general rule that a
defendant can be compelled to disclose only
those parts of the body which are not usually
covered. Buth having disabused our minds of
a too sensitive appreciation of the rights of
accused persons, and having been able, as
we think, to penetrate through the maze of law
reports to the policy which lies behind the
constitutional guaranty and the common law
principle, we have come finally to take our
stand with what we believe to be the reason of
the case.
In contradistinction to the cases above-
mentioned are others which seem to us more
progressive in nature. Among these can be
prominently mentioned decisions of the United
States Supreme Court, and the Supreme
Court of these Islands. Thus, the always
forward looking jurist, Mr. Justice Holmes, in
the late case of Holt vs. United States ([1910],
218 U. S., 245), in resolving an objection
based upon what he termed "an extravagant
extension of the Fifth Amendment," said: "The
prohibition of compelling a man in a criminal
court to be a witness against himself is a
prohibition of the use of physical or moral
compulsion to extort communications from
him, not an exclusion of his body as evidence
when it may be material." (See also, of same
general tenor, decision of Mr. Justice Day in
Adams vs. New York [1903], 192 U. S., 585.)
The Supreme Court of the Philippine Islands,
in two decisions, has seemed to limit the
protection to a prohibition against compulsory
testimonial self-incrimination. The
constitutional limitation was said to be "simply
a prohibition against legal process to extract
from the defendant's own lips, against his will,
an admission of his guilt." (U. S. vs. Tan Teng
[1912], 23 Phil., 145; U. S. vs. Ong Siu Hong
[1917], 36 Phil., 735, and the derivatory
principle announced in 16 Corpus Juris, 567,
568, citing the United States Supreme Court
and the Supreme Court of the Philippine
Islands as authority.)
Although we have stated s proposition
previously announced by this court and by the
highest tribunal in the United States, we
cannot unconcernedly leave the subject
without further consideration. Even in the
opinion Mr. Justice Holmes, to which we have
alluded, there was inserted the careful proviso
that "we need not consider how far a court
would go in compelling a man to exhibit
himself." Other courts have likewise avoided
any attempt to determine the exact location of
the dividing line between what is proper and
what is improper in this very broad
constitutional field. But here before us is
presented what would seem to be the most
extreme case which could be imagined. While
the United States Supreme Court could
nonchalantly decree that testimony that an
accused person put on a blouse and it fitted
him is not a violation of the constitutional
provision, while the Supreme Court of
Nuevada could go so far as to require the
defendant to roll up his sleeve in order to
disclose tattoo marks, and while the Supreme
Court of the Philippine Islands could permit
substances taken from the person of an
accused to be offered in evidence, none of
these even approach in apparent harshness
an order to make a woman, possibly innocent,
to disclose her body in all of its sanctity to the
gaze of strangers. We can only consistently
consent to the retention of a principle which
would permit of such a result by adhering
steadfastly to the proposition that the purpose
of the constitutional provision was and is
merely to prohibit testimonial compulsion.
So much for the authorities. For the nonce we
would prefer to forget them entirely, and here
in the Philippines, being in the agrreable state
of breaking new ground, would rather desire
our decision to rest on a strong foundation of
reason and justice than on a weak one blind
adherence to tradition and precedent.
Moreover, we believe that an unbiased
consideration of the history of the
constitutional provisions will disclose that our
conclusion is in exact accord with the causes
which led to its adoption.
The maxim of the common law, Nemo tenetur
seipsum accusare, was recognized in England
in early days, but not in the other legal systems
of the world, in a revolt against the
thumbscrew and the rack. A legal shield was
 WRITS TO SELF-INCRIMINATION ACJUCO 90
raised against odious inquisitorial methods of
interrogating an accused person by which to
extort unwilling confessions with the ever
present temptation to commit the crime of
perjury. The kernel of the privilege as
disclosed by the textwriters was testimonial
compulsion. As forcing a man to be a witness
against himself was deemed contrary to the
fundamentals of republican government, the
principle was taken into the American
Constitutions, and from the United States was
brought to the Philippine Islands, in exactly as
wide — but no wider — a scope as it existed
in old English days. The provision should here
be approached in no blindly worshipful spirit,
but with a judicious and a judicial appreciation
of both its benefits and its abuses. (Read the
scholarly articles of Prof. Wigmore in 5
Harvard L. R. [1891], p. 71, and 15 Harvard L.
R., 1902, p. 610 found in 4 Wigmore on
Evidence, pp. 3069 et seq., and U. S. vs.
Navarro [1904], Phil., 143.)
Perhaps the best way to test the correctness
of our position is to go back once more to
elements and ponder on what is the prime
purpose of a criminal trial. As we view it, the
object of having criminal laws is to purgue the
community of persons who violate the laws to
the great prejudice of their fellow men.
Criminal procedure, the rules of evidence, and
constitutional provisions, are then provided,
not to protect the guilty but to protect the
innocent. No rule is intemended to be so rigid
as to embarrass the administration of justice in
its endeavor to ascertain the truth. No accused
person should be afraid of the use of any
method which will tend to establish the truth.
For instance, under the facts before us, to use
torture to make the defendant admit her guilt
might only result in including her to tell a
falsehood. But no evidence of physical facts
can for any substantial reason be held to be
detrimental to the accused except in so far as
the truth is to be avoided in order to acquit a
guilty person.
Obviously a stirring plea can be made showing
that under the due process of law cause of the
Constitution every person has a natural and
inherent right to the possession and control of
his own body. It is extremely abhorrent to
one's sense of decency and propriety to have
the decide that such inviolability of the person,
particularly of a woman, can be invaded by
exposure to another's gaze. As Mr. Justice
Gray in Union Pacific Railway Co. vs. Botsford
([1891], 141 U. S., 250) said, "To compel any
one, and especially a woman, to lay bare the
body, or to submit to the touch of a stranger,
without lawful authority, is an indignity, an
assault, and a trespass." Conceded, and yet,
as well suggested by the same court, even
superior to the complete immunity of a person
to be let alone is the inherent which the public
has in the orderly administration of justice.
Unfortunately, all too frequently the modesty of
witnesses is shocked by forcing them to
answer, without any mental evasion,
questions which are put to them; and such a
tendency to degrade the witness in public
estimation does not exempt him from the duty
of disclosure. Between a sacrifice of the
ascertainment of truth to personal
considerations, between a disregard of the
public welfare for refined notions of delicacy,
law and justice cannot hesitate.
The protection of accused persons has been
carried to such an unwarranted extent that
criminal trials have sometimes seemed to be
like a game of shuttlecocks, with the judge as
referee, the lawyers as players, the criminal as
guest of honor, and the public as fascinated
spectators. Against such a loose extension of
constitutional guaranties we are here prepared
to voice our protest.
Fully conscious that we are resolving a most
extreme case in a sense, which on first
impression is a shock to one's sensibilities, we
must nevertheless enforce the constitutional
provision in this jurisdiction in accord with the
policy and reason thereof, undeterred by
merely sentimental influences. Once again we
lay down the rule that the constitutional
guaranty, that no person shall be compelled in
any criminal case to be a witness against
himself, is limited to a prohibition against
compulsory testimonial self-incrimination. The
corollary to the proposition is that, an ocular
inspection of the body of the accused is
permissible. The proviso is that torture of force
shall be avoided. Whether facts fall within or
without the rule with its corollary and proviso
must, of course, be decided as cases arise.
It is a reasonable presumption that in an
examination by reputable and disinterested
physicians due care will be taken not to use
 WRITS TO SELF-INCRIMINATION ACJUCO 91

violence and not to embarass the patient any

more than is absolutely necessary. Indeed, no
objection to the physical examination being
made by the family doctor of the accused or by
doctor of the same sex can be seen.

Although the order of the trial judge, acceding

to the request of the assistant fiscal for an
examination of the person of the defendant by
physicians was phrased in absolute terms, it
should, nevertheless, be understood as
subject to the limitations herein mentioned,
and therefore legal. The writ of habeas corpus
prayed for is hereby denied. The costs shall be
taxed against the petitioner. So ordered.
 WRITS TO SELF-INCRIMINATION ACJUCO 92
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second
Judicial District, and FRANCISCO JOSE,
Provincial Fiscal of Isabela, respondents.
Gregorio P. Formoso and Vicente Formoso
for petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition,
wherein the petitioner complains that the
respondent judge ordered him to appear
before the provincial fiscal to take dictation in
his own handwriting from the latter.
The order was given upon petition of said fiscal
for the purpose of comparing the petitioner's
handwriting and determining whether or not it
is he who wrote certain documents supposed
to be falsified.
There is no question as to the facts alleged in
the complaint filed in these proceedings; but
the respondents contend that the petitioner is
not entitled to the remedy applied for,
inasmuch as the order prayed for by the
provincial fiscal and later granted by the court
below, and again which the instant action was
brought, is based on the provisions of section
1687 of the Administrative Code and on the
doctrine laid down in the cases of People vs.
Badilla (48 Phil., 718); United States vs. Tan
Teng (23 Phil., 145); United States vs. Ong Siu
Hong (36 Phil., 735), cited by counsel for the
respondents, and in the case of Villaflor vs.
Summers (41 Phil., 62) cited by the judge in
the order in question.
Of course, the fiscal under section 1687 of the
Administrative Code, and the proper judge,
upon motion of the fiscal, may compel
witnesses to be present at the investigation of
any crime or misdemeanor. But this power
must be exercised without prejudice to the
constitutional rights of persons cited to appear.
And the petitioner, in refusing to perform what
the fiscal demanded, seeks refuge in the
constitutional provision contained in the Jones
Law and incorporated in General Orders, No.
58.
Therefore, the question raised is to be decided
by examining whether the constitutional
provision invoked by the petitioner prohibits
compulsion to execute what is enjoined upon
him by the order against which these
proceedings were taken.
Said provision is found in paragraph 3, section
3 of the Jones Law which (in Spanish) reads:
"Ni se le obligara a declarar en contra suya en
ningun proceso criminal" and has been
incorporated in our Criminal Procedure
(General Orders, No. 58) in section 15 (No. 4
) and section 56.
As to the extent of the privilege, it should be
noted first of all, that the English text of the
Jones Law, which is the original one, reads as
follows: "Nor shall be compelled in any
criminal case to be a witness against himself."
This text is not limited to declaracion but says
"to be a witness." Moreover, as we are
concerned with a principle contained both in
the Federal constitution and in the
constitutions of several states of the United
States, but expressed differently, we should
take it that these various phrasings have a
common conception.
In the interpretation of the principle, nothing
turns upon the variations of wording in the
constitutional clauses; this much is conceded
(ante, par. 2252). It is therefore immaterial that
the witness is protected by one constitution
from 'testifying', or by another from 'furnishing
evidence', or by another from 'giving
evidence,' or by still another from 'being a
witness.' These various phrasings have a
common conception, in respect to the form of
the protected disclosure. What is that
conception? (4 Wigmore on Evidence, p. 863,
1923 ed.)
As to its scope, this privilege is not limited
precisely to testimony, but extends to all giving
or furnishing of evidence.
The rights intended to be protected by the
constitutional provision that no man accused
of crime shall be compelled to be a witness
against himself is so sacred, and the pressure
 WRITS TO SELF-INCRIMINATION ACJUCO 93
toward their relaxation so great when the
suspicion of guilt is strong and the evidence
obscure, that is the duty of courts liberally to
construe the prohibition in favor of personal
rights, and to refuse to permit any steps
tending toward their invasion. Hence, there is
the well-established doctrine that the
constitutional inhibition is directed not merely
to giving of oral testimony, but embraces as
well the furnishing of evidence by other means
than by word of mouth, the divulging, in short,
of any fact which the accused has a right to
hold secret. (28 R. C. L., paragraph 20, page
434 and notes.) (Emphasis ours.)
The question, then, is reduced to a
determination of whether the writing from the
fiscal's dictation by the petitioner for the
purpose of comparing the latter's handwriting
and determining whether he wrote certain
documents supposed to be falsified,
constitutes evidence against himself within the
scope and meaning of the constitutional
provision under examination.
Whenever the defendant, at the trial of his
case, testifying in his own behalf, denies that
a certain writing or signature is in his own
hand, he may on cross-examination be
compelled to write in open court in order that
the jury maybe able to compare his
handwriting with the one in question.
It was so held in the case of Bradford vs.
People (43 Pacific Reporter, 1013) inasmuch
as the defendant, in offering himself as witness
in his own behalf, waived his personal
privileges.
Of like character is the case of Sprouse vs.
Com. (81 Va., 374,378), where the judge
asked the defendant to write his name during
the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be
compared to the one now before us. We are
not concerned here with the defendant, for it
does not appear that any information was filed
against the petitioner for the supposed
falsification, and still less as it a question of the
defendant on trial testifying and under cross-
examination. This is only an investigation prior
to the information and with a view to filing it.
And let it further be noted that in the case of
Sprouse vs. Com., the defendant performed
the act voluntarily.
We have also come upon a case wherein the
handwriting or the form of writing of the
defendant was obtained before the criminal
action was instituted against him. We refer to
the case of People vs. Molineux (61
Northeastern Reporter, 286).
Neither may it be applied to the instant case,
because there, as in the aforesaid case of
Sprouse vs. Com., the defendant voluntarily
offered to write, to furnish a specimen of his
handwriting.
We cite this case particularly because the
court there gives prominence to the
defendant's right to decline to write, and to the
fact that he voluntarily wrote. The following
appears in the body of said decision referred
to (page 307 of the volume cited):
The defendant had the legal right to refuse to
write for Kinsley. He preferred to accede to the
latter's request, and we can discover no
ground upon which the writings thus produced
can be excluded from the case. (Emphasis
ours.)
For the reason it was held in the case of First
National Bank vs. Robert (41 Mich., 709; 3 N.
W., 199), that the defendant could not be
compelled to write his name, the doctrine
being stated as follows:
The defendant being sworn in his own behalf
denied the endorsement.
He was then cross-examined the question in
regard to his having signed papers not in the
case, and was asked in particular whether he
would not produce signatures made prior to
the note in suit, and whether he would not write
his name there in the court. The judge
excluded all these inquiries, on objection, and
it is of these rulings that complaint is made.
The object of the questions was to bring into
the case extrinsic signatures, for the purpose
of comparison by the jury, and we think that
the judge was correct in ruling against it.
It is true that the eminent Professor Wigmore,
in his work cited (volume 4, page 878), says:
 WRITS TO SELF-INCRIMINATION ACJUCO 94
Measuring or photographing the party is not
within the privilege. Nor it is the removal or
replacement of his garments or shoes. Nor is
the requirement that the party move his body
to enable the foregoing things to be done.
Requiring him to make specimens of
handwriting is no more than requiring him to
move his body . . ." but he cites no case in
support of his last assertion on specimens of
handwriting. We note that in the same
paragraph 2265, where said authors treats of
"Bodily Exhibition." and under preposition "1.
A great variety of concrete illustrations have
been ruled upon," he cites many cases,
among them that of People vs. Molineux (61
N. E., 286) which, as we have seen, has no
application to the case at bar because there
the defendant voluntary gave specimens of his
handwriting, while here the petitioner refuses
to do so and has even instituted these
prohibition proceedings that he may not be
compelled to do so.
Furthermore, in the case before us, writing is
something more than moving the body, or the
hands, or the fingers; writing is not a purely
mechanical act, because it requires the
application of intelligence and attention; and in
the case at bar writing means that the
petitioner herein is to furnish a means to
determine whether or not he is the falsifier, as
the petition of the respondent fiscal clearly
states. Except that it is more serious, we
believe the present case is similar to that of
producing documents or chattels in one's
possession. And as to such production of
documents or chattels. which to our mind is not
so serious as the case now before us, the
same eminent Professor Wigmore, in his work
cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of
Documents and Chattels. — 1. It follows that
the production of documents or chattels by a
person (whether ordinary witness or party-
witness) in response to a subpoena, or to a
motion to order production, or to other form of
process treating him as a witness ( i.e. as a
person appearing before a tribunal to furnish
testimony on his moral responsibility for
truthtelling), may be refused under the
protection of the privilege; and this is
universally conceded. (And he cites the case
of People vs. Gardner, 144 N. Y., 119; 38 N.E.,
1003)
We say that, for the purposes of the
constitutional privilege, there is a similarity
between one who is compelled to produce a
document, and one who is compelled to
furnish a specimen of his handwriting, for in
both cases, the witness is required to furnish
evidence against himself.
And we say that the present case is more
serious than that of compelling the production
of documents or chattels, because here the
witness is compelled to write and create, by
means of the act of writing, evidence which
does not exist, and which may identify him as
the falsifier. And for this reason the same
eminent author, Professor Wigmore,
explaining the matter of the production of
documents and chattels, in the passage cited,
adds:
For though the disclosure thus sought be not
oral in form, and though the documents or
chattels be already in existence and not
desired to be first written and created by
testimonial act or utterance of the person in
response to the process, still no line can be
drawn short of any process which treats him
as a witness; because in virtue it would be at
any time liable to make oath to the identity or
authenticity or origin of the articles produced.
(Ibid., pp. 864-865.) (Emphasis ours.)
It cannot be contended in the present case that
if permission to obtain a specimen of the
petitioner's handwriting is not granted, the
crime would go unpunished. Considering the
circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not
be a difficult matter for the fiscal to obtained
genuine specimens of his handwriting. But
even supposing it is impossible to obtain
specimen or specimens without resorting to
the means complained herein, that is no
reason for trampling upon a personal right
guaranteed by the constitution. It might be true
that in some cases criminals may succeed in
evading the hand of justice, but such cases are
accidental and do not constitute the raison d'
etre of the privilege. This constitutional
privilege exists for the protection of innocent
persons.
With respect to the judgments rendered by this
court and cited on behalf of the respondents, it
 WRITS TO SELF-INCRIMINATION ACJUCO 95

should be remembered that in the case of
People vs. Badilla (48 Phil., 718), it does not
appear that the defendants and other
witnesses were questioned by the fiscal
against their will, and if they did not refuse to
answer, they must be understood to have
waived their constitutional privilege, as they
could certainly do.
The privilege not to give self-incriminating
evidence, while absolute when claimed,
maybe waived by any one entitled to invoke it.
(28 R. C. L., paragraph 29, page 442, and
cases noted.)
The same holds good in the case of United
States vs. Tan Teng (23 Phil., 145), were the
defendant did not oppose the extraction from
his body of the substance later used as
evidence against him.
morphine he had there. It was not compelling
him to testify or to be a witness or to furnish,
much less make, prepare, or create through a
testimonial act, evidence for his own
condemnation.
Wherefore, we find the present action well
taken, and it is ordered that the respondents
and those under their orders desist and
abstain absolutely and forever from
compelling the petitioner to take down
dictation in his handwriting for the purpose of
submitting the latter for comparison.
Without express pronouncement as to costs.
So ordered.

In the case of Villaflor vs. Summers (41 Phil.,

62), it was plainly stated that the court
preferred to rest its decision on the reason of
the case rather than on blind adherence to
tradition. The said reason of the case there
consisted in that it was the case of the
examination of the body by physicians, which
could be and doubtless was interpreted by this
court, as being no compulsion of the petitioner
therein to furnish evidence by means of
testimonial act. In reality she was not
compelled to execute any positive act, much
less a testimonial act; she was only enjoined
from something preventing the examination;
all of which is very different from what is
required of the petitioner of the present case,
where it is sought to compel him to perform a
positive, testimonial act, to write and give a
specimen of his handwriting for the purpose of
comparison. Besides, in the case of Villamor
vs. Summers, it was sought to exhibit
something already in existence, while in the
case at bar, the question deals with something
not yet in existence, and it is precisely sought
to compel the petitioner to make, prepare, or
produce by this means, evidence not yet in
existence; in short, to create this evidence
which may seriously incriminate him.

Similar considerations suggest themselves to

us with regard to the case of United States vs.
Ong Siu Hong (36 Phil., 735), wherein the
defendant was not compelled to perform any
testimonial act, but to take out of his mouth the