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G.R. No.

197597, April 08, 2015


To support his allegations, Salibo presented to the police "pertinent portions
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF of his passport, boarding passes and other documents"10 tending to prove that
DATUKAN MALANG SALIBO, DATUKAN MALANG SALIBO, a certain Datukan Malang Salibo was in Saudi Arabia from November 7 to
Petitioner, v. WARDEN, QUEZON CITY JAIL ANNEX, BJMP December 19, 2009.11
BUILDING, CAMP BAGONG DIWA, TAGUIG CITY AND ALL OTHER
PERSONS ACTING ON HIS BEHALF AND/OR HAVING CUSTODY OF The police officers initially assured Salibo that they would not arrest him
DATUKAN MALANG SALIBO, Respondents. because he was not Butukan S. Malang.12

DECISION Afterwards, however, the police officers apprehended Salibo and tore off
page two of his passport that evidenced his departure for Saudi Arabia on
LEONEN, J.: November 7, 2009. They then detained Salibo at the Datu Hofer Police
Station for about three (3) days.13
Habeas corpus is the proper remedy for a person deprived of liberty due to
mistaken identity. In such cases, the person is not under any lawful process The police officers transferred Salibo to the Criminal Investigation and
and is continuously being illegally detained. Detection Group in Cotabato City, where he was detained for another 10 days.
While in Cotabato City, the Criminal Investigation and Detention Group
This is a Petition for Review1 on Certiorari of the Court of Appeals Decision2 allegedly made him sign and affix his thumbprint on documents.14
reversing the Decision3 of the Regional Trial Court, Branch 153, Pasig City
(Taguig Hall of Justice) granting Datukan Malang Salibo's Petition for On August 20, 2010, Salibo was finally transferred to the Quezon City Jail
Habeas Corpus. Annex, Bureau of Jail Management and Penology Building, Camp Bagong
Diwa, Taguig City, where he is currently detained.15
From November 7, 2009 to December 19, 2009, Datukan Malang Salibo
(Salibo) and other Filipinos were allegedly in Saudi Arabia for the Hajj On September 17, 2010, Salibo filed before the Court of Appeals the Urgent
Pilgrimage.4 "While in Saudi Arabia, . . . Salibo visited and prayed in the Petition for Habeas Corpus16 questioning the legality of his detention and
cities of Medina, Mecca, Arpa, Mina and Jeddah."5 He returned to the deprivation of his liberty.17 He maintained that he is not the accused Butukan
Philippines on December 20, 2009.6 S. Malang.18

On August 3, 2010, Salibo learned that police officers of Datu Hofer Police In the Resolution19 dated September 21, 2010, the Court of Appeals issued
Station in Maguindanao suspected him to be Butukan S. Malang.7 a Writ of Habeas Corpus, making the Writ returnable to the Second Vice
Executive Judge of the Regional Trial Court, Pasig City (Taguig Hall of
Butukan S. Malang was one of the 197 accused of 57 counts of murder for Justice).20 The Court of Appeals ordered the Warden of the Quezon City Jail
allegedly participating in the November 23, 2009 Maguindanao Massacre. He Annex to file a Return of the Writ one day before the scheduled hearing and
had a pending warrant of arrest issued by the trial court in People of the produce the person of Salibo at the 10:00 a.m. hearing set on September 27,
Philippines v. Datu Andal Ampatuan, Jr., et al.8 2010.21

Salibo presented himself before the police officers of Datu Hofer Police Proceedings before the trial court
Station to clear his name. There, he explained that he was not Butukan S.
Malang and that he could not have participated in the November 23, 2009 On September 27, 2010, the jail guards of the Quezon City Jail Annex
Maguindanao Massacre because he was in Saudi Arabia at that time.9 brought Salibo before the trial court. The Warden, however, failed to file a

1
Return one day before the hearing. He also appeared without counsel during
the hearing.22
The trial court was likewise convinced that Salibo was not the Butukan S.
Thus, the trial court canceled the hearing and reset it to September 29, 2010 Malang charged with murder in connection with the Maguindanao Massacre.
at 2:00 p.m.23 The National Bureau of Investigation Clearance dated August 27, 2009
showed that Salibo has not been charged of any crime as of the date of the
certificate.31 A Philippine passport bearing Salibo's picture showed the name
On September 28, 2010, the Warden filed the Return of the Writ. However, "Datukan Malang Salibo."32
during the September 29, 2010 hearing on the Return, the Warden appeared
with Atty. Romeo L. Villante, Jr., Legal Officer/Administering Officer of the Moreover, the trial court said that Salibo "established that [he] was out of the
Bureau of Jail Management and Penology.24 country"33 from November 7, 2009 to December 19, 2009. This fact was
supported by a Certification34 from Saudi Arabian Airlines confirming
Salibo questioned the appearance of Atty. Romeo L. Villante, Jr. on behalf of Salibo's departure from and arrival in Manila on board its flights.35 A Flight
the Warden and argued that only the Office of the Solicitor General has the Manifest issued by the Bureau of Immigration and Saudi Arabian Airlines
authority to appear on behalf of a respondent in a habeas corpus Ticket No. 0652113 also showed this fact.36
proceeding.25
Thus, in the Decision dated October 29, 2010, the trial court granted Salibo's
The September 29, 2010 hearing, therefore, was canceled. The trial court Petition for Habeas Corpus and ordered his immediate release from detention.
reset the hearing on the Return to October 1, 2010 at 9:00 a.m.26
Proceedings before the Court of Appeals
The Return was finally heard on October 1, 2010. Assistant Solicitors Noel
Salo and Isar Pepito appeared on behalf of the Warden of the Quezon City On appeal37 by the Warden, however, the Court of Appeals reversed and set
Jail Annex and argued that Salibo's Petition for Habeas Corpus should be aside the trial court's Decision.38 Through its Decision dated April 19, 2011,
dismissed. Since Salibo was charged under a valid Information and Warrant the Court of Appeals dismissed Salibo's Petition for Habeas Corpus.
of Arrest, a petition for habeas corpus was "no longer availing."27
Contrary to the trial court's finding, the Court of Appeals found that Salibo's
Salibo countered that the Information, Amended Information, Warrant of arrest and subsequent detention were made under a valid Information and
Arrest, and Alias Warrant of Arrest referred to by the Warden all point to Warrant of Arrest.39 Even assuming that Salibo was not the Butukan S.
Butukan S. Malang, not Datukan Malang Salibo, as accused. Reiterating that Malang named in the Alias Warrant of Arrest, the Court of Appeals said that
he was not Butukan S. Malang and that he was in Saudi Arabia on the day of "[t]he orderly course of trial must be pursued and the usual remedies
the Maguindanao Massacre, Salibo pleaded the trial court to order his release exhausted before the writ [of habeas corpus] may be invoked[.]"40 According
from detention.28 to the Court of Appeals, Salibo's proper remedy was a Motion to Quash
Information and/or Warrant of Arrest.41
The trial court found that Salibo was not "judicially charged"29 under any
resolution, information, or amended information. The Resolution, Salibo filed a Motion for Reconsideration,42 which the Court of Appeals
Information, and Amended Information presented in court did not charge denied in the Resolution43 dated July 6, 2011.
Datukan Malang Salibo as an accused. He was also not validly arrested as
there was no Warrant of Arrest or Alias Warrant of Arrest against Datukan Proceedings before this court
Malang Salibo. Salibo, the trial court ruled, was not restrained of his liberty
under process issued by a court.30

2
On July 28, 2011,44 petitioner Salibo filed before this court the Petition for
Review (With Urgent Application for a Writ of Preliminary An application for a writ of habeas corpus may be made through a petition
filed before this court or any of its members,50 the Court of Appeals or any
Mandatory Injunction). Respondent Warden filed a Comment,45 after which of its members in instances authorized by law,51 or the Regional Trial Court
petitioner Salibo filed a Reply.46 or any of its presiding judges.52 The court or judge grants the writ and
requires the officer or person having custody of the person allegedly
restrained of liberty to file a return of the writ.53 A hearing on the return of
Petitioner Salibo maintains that he is not the Butukan S. Malang charged with the writ is then conducted.54
57 counts of murder before the Regional Trial Court, Branch 221, Quezon
City. Thus, contrary to the Court of Appeals' finding, he, Datukan Malang The return of the writ may be heard by a court apart from that which issued
Salibo, was not duly charged in court. He is being illegally deprived of his the writ.55 Should the court issuing the writ designate a lower court to which
liberty and, therefore, his proper remedy is a Petition for Habeas Corpus.47 the writ is made returnable, the lower court shall proceed to decide the
petition of habeas corpus. By virtue of the designation, the lower court
Petitioner Salibo adds that respondent Warden erred in appealing the "acquire[s] the power and authority to determine the merits of the [petition
Decision of the Regional Trial Court, Branch 153, Pasig City before the Court for habeas corpus.]"56 Therefore, the decision on the petition is a decision
of Appeals. Although the Court of Appeals delegated to the trial court the appealable to the court that has appellate jurisdiction over decisions of the
authority to hear respondent Warden on the Return, the trial court's Decision lower court.57
should be deemed a Decision of the Court of Appeals. Therefore, respondent
Warden should have directly filed his appeal before this court.48 In Saulo v. Brig. Gen. Cruz, etc,58 "a petition for habeas corpus was filed
before this Court . . . [o]n behalf of. . . Alfredo B. Saulo [(Saulo)]."59 This
As for respondent Warden, he maintains that petitioner Salibo was duly court issued a Writ of Habeas Corpus and ordered respondent Commanding
charged in court. Even assuming that he is not the Butukan S. Malang named General of the Philippine Constabulary to file a Return of the Writ. This court
in the Alias Warrant of Arrest, petitioner Salibo should have pursued the made the Writ returnable to the Court of First Instance of Manila.60
ordinary remedy of a Motion to Quash Information, not a Petition for Habeas
Corpus.49 After hearing the Commanding General on the Return, the Court of First
Instance denied Saulo's Petition for Habeas Corpus.61
The issues for our resolution are:
Saulo appealed before this court, arguing that the Court of First Instance
First, whether the Decision of the Regional Trial Court, Branch 153, Pasig heard the Petition for Habeas Corpus "not by virtue of its original jurisdiction
City on petitioner Salibo's Petition for Habeas Corpus was appealable to the but merely delegation[.]"62 Consequently, "this Court should have the final
Court of Appeals; and Second, whether petitioner Salibo's proper remedy is say regarding the issues raised in the petition, and only [this court's decision]
to file a Petition for Habeas Corpus. . . . should be regarded as operative."63

We grant the Petition.cralawlawlibrary This court rejected Sciulo's argument and stated that his "logic is more
apparent than real."64 It ruled that when a superior court issues a writ of
habeas corpus, the superior court only resolves whether the respondent should
I be ordered to show cause why the petitioner or the person in whose behalf
the petition was filed was being detained or deprived of his or her liberty.65
Contrary to petitioner Salibo's claim, respondent Warden correctly appealed However, once the superior court makes the writ returnable to a lower court
before the Court of Appeals. as allowed by the Rules of Court, the lower court designated "does not

3
thereby become merely a recommendatory body, whose findings and
conclusion[s] are devoid of effect[.]"66 The decision on the petition for Called the "great writ of liberty[,]"76 the writ of habeas corpus "was devised
habeas corpus is a decision of the lower court, not of the superior court. and exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom."77
In Medina v. Gen. Yan,67 Fortunato Medina (Medina) filed before this court The remedy of habeas corpus is extraordinary78 and summary79 in nature,
a Petition for Habeas Corpus. This court issued a Writ of Habeas Corpus, consistent with the law's "zealous regard for personal liberty."80
making it returnable to the Court of First Instance of Rizal, Quezon City.
After trial on the merits, the Court of First Instance granted Medina's Petition Under Rule 102, Section 1 of the Rules of Court, the writ of habeas corpus
for Habeas Corpus and ordered that Medina be released from detention.68 "shall extend to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any
The Office of the Solicitor General filed a Notice of Appeal before the Court person is withheld from the person entitled thereto."81 The primary purpose
of Appeals.69 of the writ "is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such
Atty. Amelito Mutuc, counsel for Medina, filed before the Court of Appeals restraint is illegal."82 "Any restraint which will preclude freedom of action
a "Motion for Certification of Appeal to the Supreme Court." The Court of is sufficient."83
Appeals, however, denied the Motion.70
The nature of the restraint of liberty need not be related to any offense so as
This court ruled that the Court of Appeals correctly denied the "Motion for to entitle a person to the efficient remedy of habeas corpus. It may be availed
Certification of Appeal to the Supreme Court," citing Saulo as legal basis.71 of as a post-conviction remedy84 or when there is an alleged violation of the
The Court of First Instance of Rizal, in deciding Medina's Petition for Habeas liberty of abode.85 In other words, habeas corpus effectively substantiates
Corpus, "acquired the power and authority to determine the merits of the the implied autonomy of citizens constitutionally protected in the right to
case[.]"72 Consequently, the decision of the Court of First Instance of Rizal liberty in Article III, Section 1 of the Constitution.86 Habeas corpus being a
on Medina's Petition for Habeas Corpus was appealable to the Court of remedy for a constitutional right, courts must apply a conscientious and
Appeals.73 deliberate level of scrutiny so that the substantive right to liberty will not be
further curtailed in the labyrinth of other processes.87
In this case, petitioner Salibo filed his Petition for Habeas Corpus before the
Court of Appeals. The Court of Appeals issued a Writ of Habeas Corpus, In Gumabon, et al. v. Director of the Bureau of Prisons,88 Mario Gumabon
making it returnable to the Regional Trial Court, Branch 153, Pasig City. The (Gumabon), Bias Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito),
trial court then heard respondent Warden on his Return and decided the Epifanio Padua (Padua), and Paterno Palmares (Palmares) were convicted of
Petition on the merits. the complex crime of rebellion with murder. They commenced serving their
respective sentences of reclusion perpetua.89
Applying Saulo and Medina, we rule that the trial court "acquired the power
and authority to determine the merits"74 of petitioner Salibo's Petition. The While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving
decision on the Petition for Habeas Corpus, therefore, was the decision of the their sentences, this court promulgated People v. Hernandez90 in 1956, ruling
trial court, not of the Court of Appeals. Since the Court of Appeals is the court that the complex crime of rebellion with murder does not exist.91
with appellate jurisdiction over decisions of trial courts,75 respondent
Warden correctly filed the appeal before the Court of Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and
Appeals.cralawlawlibrary Palmares filed a Petition for Habeas Corpus. They prayed for their release
from incarceration and argued that the Hernandez doctrine must retroactively
II apply to them.92

4
Mayor Justo Lukban illegally deprived the women he had deported to Davao
This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares of their liberty, specifically, of their privilege of domicile.105 It said that the
properly availed of a petition for habeas corpus.93 Citing Harris v. Nelson,94 women, "despite their being in a sense lepers of society[,] are nevertheless
this court said:chanroblesvirtuallawlibrary not chattels but Philippine citizens protected by the same constitutional
[T]he writ of habeas corpus is the fundamental instrument for safeguarding guaranties as are other citizens[.]"106 The women had the right "to change
individual freedom against arbitrary and lawless state action. . . . The scope their domicile from Manila to another locality."107
and flexibility of the writ — its capacity to reach all manner of illegal
detention — its ability to cut through barriers of form and procedural mazes The writ of habeas corpus is different from the final decision on the petition
— have always been emphasized and jealously guarded by courts and for the issuance of the writ. It is the writ that commands the production of the
lawmakers. The very nature of the writ demands that it be administered with body of the person allegedly restrained of his or her liberty. On the other
the initiative and flexibility essential to insure that miscarriages of justice hand, it is in the final decision where a court determines the legality of the
within its reach are surfaced and corrected.95cralawlawlibrary restraint.
In Rubi v. Provincial Board of Mindoro,96 the Provincial Board of Mindoro
issued Resolution No. 25, Series of 1917. The Resolution ordered the Between the issuance of the writ and the final decision on the petition for its
Mangyans removed from their native habitat and compelled them to issuance, it is the issuance of the writ that is essential. The issuance of the
permanently settle in an 800-hectare reservation in Tigbao. Under the writ sets in motion the speedy judicial inquiry on the legality of any
Resolution, Mangyans who refused to establish themselves in the Tigbao deprivation of liberty. Courts shall liberally issue writs of habeas corpus even
reservation were imprisoned.97 if the petition for its issuance "on [its] face [is] devoid of merit[.]"108
Although the privilege of the writ of habeas corpus may be suspended in cases
An application for habeas corpus was filed before this court on behalf of Rubi of invasion, rebellion, or when the public safety requires it,109 the writ itself
and all the other Mangyans being held in the reservation.98 Since the may not be suspended.110
application questioned the legality of deprivation of liberty of Rubi and the
other Mangyans, this court issued a Writ of Habeas Corpus and ordered the III
Provincial Board of Mindoro to make a Return of the Writ.99
It is true that a writ of habeas corpus may no longer be issued if the person
A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban.100 allegedly deprived of liberty is restrained under a lawful process or order of
"[T]o exterminate vice,"101 Mayor Justo Lukban of Manila ordered the the court.111 The restraint then has become legal,112 and the remedy of
brothels in Manila closed. The female sex workers previously employed by habeas corpus is rendered moot and academic.113 Rule 102, Section 4 of the
these brothels were rounded up and placed in ships bound for Davao. The Rules of Court provides:chanroblesvirtuallawlibrary
women were expelled from Manila and deported to Davao without their SEC. 4. When writ not allowed or discharge authorized.—If it appears that
consent.102 the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order
On application by relatives and friends of some of the deported women, this of a court of record, and that the court or judge had jurisdiction to issue the
court issued a Writ of Habeas Corpus and ordered Mayor Justo Lukban, process, render the judgment, or make the order, the writ shall not be allowed;
among others, to make a Return of the Writ. Mayor Justo Lukban, however, or if the jurisdiction appears after the writ is allowed, the person shall not be
failed to make a Return, arguing that he did not have custody of the discharged by reason of any informality or defect in the process, judgment,
women.103 or order. Nor shall anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the Philippines, or of a
This court cited Mayor Justo Lukban in contempt of court for failure to make person suffering imprisonment under lawful judgment.
a Return of the Writ.104 As to the legality of his acts, this court ruled that

5
In Ilagan v. Hon. Ponce Enrile,114 elements of the Philippine Constabulary- counsels, retired Chief Justice Roberto Concepcion and retired Associate
Integrated National Police arrested Atty. Laurente C. Ilagan (Atty. Ilagan) by Justice Jose B.L. Reyes.123
virtue of a Mission Order allegedly issued by then Minister of National
Defense, Juan Ponce Enrile (Minister Enrile). On the day of Atty. Ilagan's Instead of releasing Attys. Ilagan, Arellano, and Risonar, however, Minister
arrest,115 from the Integrated Bar of the Philippines Davao Chapter visited Enrile, General Ramos, and General Tan-Gatue filed a Motion for
Atty. Ilagan in Camp Catitipan, where he was detained.115 Reconsideration.124 They filed an Urgent Manifestation/Motion stating that
Informations for rebellion were filed against Attys. Ilagan, Arellano, and
Among Atty. Ilagan's visitors was Atty. Antonio Arellano (Atty. Arellano). Risonar. They prayed that this court dismiss the Petition for Habeas Corpus
Atty. Arellano, however, no longer left Camp Catitipan as the military for being moot and academic.125
detained and arrested him based on an unsigned Mission Order.116
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and
Three (3) days after the arrest of Attys. Ilagan and Arellano, the military the Movement of Attorneys for Brotherhood, Integrity and Nationalism
informed the Integrated Bar of the Philippines Davao Chapter of the opposed the motion. According to them, no preliminary investigation was
impending arrest of Atty. Marcos Risonar (Atty. Risonar). To verify his arrest conducted before the filing of the Information. Attys. Ilagan, Arellano, and
papers, Atty. Risonar went to Camp Catitipan. Like Atty. Arellano, the Risonar were deprived of their right to due process. Consequently, the
military did not allow Atty. Risonar to leave. He was arrested based on a Information was void.126
Mission Order signed by General Echavarria, Regional Unified
Commander.117 This court dismissed the Petition for Habeas Corpus, ruling that it became
moot and academic with the filing of the Information against Attys. Ilagan,
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and Arellano, and Risonar in court:127ChanRoblesVirtualawlibrary
the Movement of Attorneys for Brotherhood, Integrity and Nationalism filed As contended by respondents, the petition herein has been rendered moot and
before this court a Petition for Habeas Corpus in behalf of Attys. Ilagan, academic by virtue of the filing of an Information against them for Rebellion,
Arellano, and Risonar.118 a capital offense, before the Regional Trial Court of Davao City and the
issuance of a Warrant of Arrest against them. The function of the special
This court issued a Writ of Habeas Corpus and required Minister Enrile, proceeding of habeas corpus is to inquire into the legality of one's detention.
Armed Forces of the Philippines Acting Chief of Staff Lieutenant General Now that the detained attorneys' incarceration is by virtue of a judicial order
Fidel V. Ramos (General Ramos), and Philippine Constabulary-Integrated in relation to criminal cases subsequently filed against them before the
National Police Regional Commander Brigadier General Dionisio Tan-Gatue Regional Trial Court of Davao City, the remedy of habeas corpus no longer
(General Tan-Gatue) to make a Return of the Writ.119 This court set the lies. The Writ had served its purpose.128 (Citations omitted)
hearing on the Return on May 23, 1985.120 This court likewise dismissed the Petitions for habeas corpus in Umil v.
Ramos.129 Roberto Umil, Rolando Dural, Renato Villanueva, Amelia
In their Return, Minister Enrile, General Ramos, and General Tan-Gatue Roque, Wilfredo Buenaobra, Atty. Domingo Anonuevo, Ramon Casiple,
contended that the privilege of the Writ of Habeas Corpus was suspended as Vicky A. Ocaya, Deogracias Espiritu, and Narciso B. Nazareno were all
to Attys. Ilagan, Arellano, and Risonar by virtue of Proclamation No. 2045- arrested without a warrant for their alleged membership in the Communist
A.121 The lawyers, according to respondents, allegedly "played active roles Party of the Philippines/New People's Army.130
in organizing mass actions of the Communist Party of the Philippines and the
National Democratic Front."122 During the pendency of the habeas corpus proceedings, however,
Informations against them were filed before this court. The filing of the
After hearing respondents on their Return, this court ordered the temporary Informations, according to this court, rendered the Petitions for habeas corpus
release of Attys. Ilagan, Arellano, and Risonar on the recognizance of their moot and academic, thus:131ChanRoblesVirtualawlibrary

6
It is to be noted that, in all the petitions here considered, criminal charges That the accused has been previously convicted or acquitted of the offense
have been filed in the proper courts against the petitioners. The rule is, that if charged, or the case against him was dismissed or otherwise terminated
a person alleged to be restrained of his liberty is in the custody of an officer without his express consent.
under process issued by a court or judge, and that the court or judge had In filing a motion to quash, the accused "assails the validity of a criminal
jurisdiction to issue the process or make the order, or if such person is charged complaint or information filed against him [or her] for insufficiency on its
before any court, the writ of habeas corpus will not be allowed.132 (Emphasis face in point of law, or for defects which are apparent in the face of the
in the original) information."136 If the accused avails himself or herself of a motion to quash,
In such cases, instead of availing themselves of the extraordinary remedy of the accused "hypothetical[ly] admits the facts alleged in the information."137
a petition for habeas corpus, persons restrained under a lawful process or "Evidence aliunde or matters extrinsic from the information are not to be
order of the court must pursue the orderly course of trial and exhaust the usual considered."138ChanRoblesVirtualawlibrary
remedies.133 This ordinary remedy is to file a motion to quash the
information or the warrant of arrest.134 "If the motion to quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall order [the]
At any time before a plea is entered,135 the accused may file a motion to amendment [of the complaint or information]."139 If the motion to quash is
quash complaint or information based on any of the grounds enumerated in based on the ground that the facts alleged in the complaint or information do
Rule 117, Section 3 of the Rules of Court:chanroblesvirtuallawlibrary not constitute an offense, the trial court shall give the prosecution "an
SEC. 3. Grounds.—The accused may move to quash the complaint or opportunity to correct the defect by amendment."140 If after amendment, the
information on any of the following grounds:chanroblesvirtuallawlibrary complaint or information still suffers from the same defect, the trial court
(a) shall quash the complaint or information.141
That the facts charged do not constitute an offense;
(b) IV
That the court trying the case has no jurisdiction over the offense charged;
(c) However, Ilagan142 and Umil do not apply to this case. Petitioner Salibo was
That the court trying the case has no jurisdiction over the person of the not arrested by virtue of any warrant charging him of an offense. He was not
accused;. restrained under a lawful process or an order of a court. He was illegally
(d) deprived of his liberty, and, therefore, correctly availed himself of a Petition
That the officer who filed the information had no authority to do so; for Habeas Corpus.
(e)
That it does not conform substantially to the prescribed form; The Information and Alias Warrant of Arrest issued by the Regional Trial
(f) Court, Branch 221, Quezon City in People of the Philippines v. Datu Andal
That more than one offense is charged except when a single punishment for Ampatuan, Jr., et al. charged and accused Butukan S. Malang, not Datukan
various offenses is prescribed by law; Malang Salibo, of 57 counts of murder in connection with the Maguindanao
(g) Massacre.
That the criminal action or liability has been extinguished;
(h) Furthermore, petitioner Salibo was not validly arrested without a warrant.
That it contains averments which, if true, would constitute a legal excuse or Rule 113, Section 5 of the Rules of Court enumerates the instances when a
justification; and warrantless arrest may be made:chanroblesvirtuallawlibrary
(i) SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private
person may, without a warrant, arrest a person:chanroblesvirtuallawlibrary
(a)

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When, in his presence, the person to be arrested has committed, is actually could not rely on the stale and inoperative PDA of January 25, 1985.
committing, or is attempting to commit an offense; Otherwise, the rules would be rendered nugatory, if all that was needed was
(b) to get a PDA and then serve it at one's whim and caprice when the very
When an offense has just been committed and he has probable cause to issuance of the PDA is premised on its imperative urgency and necessity as
believe based on- personal knowledge of facts or circumstances that the declared by the President himself. The majority decision then relies on Rule
person to be arrested has committed it; 113, Sec. 5 which authorizes arrests without warrant by a citizen or by a
(c) police officer who witnessed the arrestee in flagrante delicto, viz. in the act
When the person to be arrested is a prisoner who has escaped from a penal of committing the offense. Quite obviously, the arrest was not a citizen's
establishment or place where he is serving final judgment or is temporarily arrest nor were they caught in flagrante delicto violating the law. In fact, this
confined while his case is pending, or has escaped while being transferred Court in promulgating the 1985 Rules on Criminal Procedure have tightened
from one confinement to another. and made the rules more strict. Thus, the Rule now requires that an offense
In cases falling under paragraphs (a) and (b) above, the person arrested "has in fact just been committed." This connotes immediacy in point of time
without a warrant shall be forthwith delivered to the nearest police station or and excludes cases under the old rule where an offense "has in fact been
jail and shall be proceeded against in accordance with section 7 of Rule 112. committed" no matter how long ago. Similarly, the arrestor must have
It is undisputed that petitioner Salibo presented himself before the Datu Hofer "personal knowledge of facts indicating that the [arrestee] has committed it"
Police Station to clear his name and to prove that he is not the accused (instead of just "reasonable ground to believe that the [arrestee] has
Butukan S. Malang. When petitioner Salibo was in the presence of the police committed it" under the old rule). Clearly, then, an information could not just
officers of Datu Hofer Police Station, he was neither committing nor be filed against the petitioners without due process and preliminary
attempting to commit an offense. The police officers had no personal investigation.147 (Emphasis in the original, citation omitted)
knowledge of any offense that he might have committed. Petitioner Salibo
was also not an escapee prisoner. Petitioner Salibo's proper remedy is not a Motion to Quash Information
and/or Warrant of Arrest. None of the grounds for filing a Motion to Quash
The police officers, therefore, had no probable cause to arrest petitioner Information apply to him. Even if petitioner Salibo filed a Motion to Quash,
Salibo without a warrant. They deprived him of his right to liberty without the defect he alleged could not have been cured by mere amendment of the
due process of law, for which a petition for habeas corpus may be issued. Information and/or Warrant of Arrest. Changing the name of the accused
appearing in the Information and/or Warrant of Arrest from "Butukan S.
The arrest of petitioner Salibo is similar to the arrest of Atty. Risonar in the Malang" to "Datukan Malang Salibo" will not cure the lack of preliminary
"disturbing"143 case of Ilagan.144 Like petitioner Salibo, Atty. Risonar went investigation in this case.
to Camp Catitipan to verify and contest any arrest papers against him. Then
and there, Atty. Risonar was arrested without a warrant. In his dissenting A motion for reinvestigation will' not cure the defect of lack of preliminary
opinion in Ilagan,145 Justice Claudio Teehankee stated that the lack of investigation. The Information and Alias Warrant of Arrest were issued on
preliminary investigation deprived Atty. Risonar, together with Attys. Ilagan the premise that Butukan S. Malang and Datukan Malang Salibo are the same
and Arellano, of his right to due process of law — a ground for the grant of a person. There is evidence, however, that the person detained by virtue of
petition for habeas corpus:146 these processes is not Butukan S. Malang but another person named Datukan
Malang Salibo.
The majority decision holds that the filing of the information without
preliminary investigation falls within the exceptions of Rule 112, sec. 7 and Petitioner Salibo presented in evidence his Philippine passport,148 his
Rule 113, sec. 5 of the 1985 Rules on Criminal Procedure. Again, this is identification card from the Office on Muslim Affairs,149 his Tax
erroneous premise. The fiscal misinvoked and misapplied the cited rules. The Identification Number card,150 and clearance from the National Bureau of
petitioners are not persons "lawfully arrested without a warrant." The fiscal Investigation151 all bearing his picture and indicating the name "Datukan

8
Malang Salibo." None of these government-issued documents showed that Management and Penology Building, Camp Bagong Diwa, Taguig, is
petitioner Salibo used the alias "Butukan S. Malang." ORDERED to immediately RELEASE petitioner Datukan Maiang Salibo
from detention.
Moreover, there is evidence that petitioner Salibo was not in the country on
November 23, 2009 when the Maguindanao Massacre occurred. The Letter of the Court of Appeals elevating the records of the case to this
court is hereby NOTED.
A Certification152 from the Bureau of Immigration states that petitioner
Salibo departed for Saudi Arabia on November 7, 2009 and arrived in the SO ORDERED.chanroblesvirtuallawlibrary
Philippines only on December 20, 2009. A Certification153 from Saudi
Arabian Airlines attests that petitioner Salibo departed for Saudi Arabia on Carpio, (Chairperson), Brion, Del Castillo, and Mendoza, JJ., concur.
board Saudi Arabian Airlines Flight SV869 on November 7, 2009 and that he
arrived in the Philippines on board Saudi Arabian Airlines SV870 on
December 20, 2009.cralawlawlibrary

People of the Philippines v. Datu Andal Ampatuan, Jr., et al. is probably the
most complex case pending in our courts. The case involves 57 victims154
and 197 accused, two (2) of which have become state witnesses.155 As of
November 23, 2014, 111 of the accused have been arraigned, and 70 have
filed petitions for bail of which 42 have already been resolved.156 To require
petitioner Salibo to undergo trial would be to further illegally deprive him of
his liberty. Urgency dictates that we resolve his Petition in his favor given the
strong evidence that he is not Butukan S. Malang.

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

Should the government choose to prosecute petitioner Salibo, it must pursue


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

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The


Court of Appeals Decision dated April 19, 2011 is REVERSED and SET
ASIDE. Respondent Warden, Quezon City Jail Annex, Bureau of Jail

9
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, Present:

Petitioners,

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

- versus - CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

REYES,

RAYMOND MANALO and REYNALDO MANALO, LEONARDO-DE CASTRO, and

Respondents. BRION, JJ.

G.R. No. 180906 Promulgated:

October 7, 2008

10
or depriving them of their right to life, liberty, and other basic rights as
x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - guaranteed under Article III, Section 1[4] of the 1987 Constitution.[5]
x
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
DECISION 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. 26[6] of the Amparo Rule; (2) the Court
issue the writ commanding therein respondents to make a verified return
PUNO, C.J.: 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
While victims of enforced disappearances are separated from the rest of the and all other reliefs prayed for in the petition but not covered by the Amparo
world behind secret walls, they are not separated from the constitutional Rule; (4) the Court, after hearing, render judgment as required in Sec. 18[7]
protection of their basic rights. The constitution is an overarching sky that of the Amparo Rule; and (5) all other just and equitable reliefs.[8]
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. 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:
This is an appeal via Petition for Review under Rule 45 of the Rules of Court
in relation to Section 19[1] of the Rule on the Writ of Amparo, seeking to WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring
reverse and set aside on both questions of fact and law, the Decision them to file with the CA (Court of Appeals) a verified written return within
promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001, five (5) working days from service of the writ. We REMAND the petition to
entitled Raymond Manalo and Reynaldo Manalo, petitioners, versus The the CA and designate the Division of Associate Justice Lucas P. Bersamin to
Secretary of National Defense, the Chief of Staff, Armed Forces of the conduct the summary hearing on the petition on November 8, 2007 at 2:00
Philippines, respondents. p.m. and decide the petition in accordance with the Rule on the Writ of
Amparo.[9]
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 On December 26, 2007, the Court of Appeals rendered a decision in favor of
respondents) and/or their officers and agents from depriving them of their therein petitioners (herein respondents), the dispositive portion of which
right to liberty and other basic rights. Therein petitioners also sought ancillary reads, viz:
remedies, Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders, and all other legal and equitable reliefs under ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is
Article VIII, Section 5(5)[3] of the 1987 Constitution and Rule 135, Section GRANTED.
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 The respondents SECRETARY OF NATIONAL DEFENSE and AFP
of Staff of the AFP, their agents, representatives, or persons acting in their CHIEF OF STAFF are hereby REQUIRED:
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,

11
1. To furnish to the petitioners and to this Court within five days from near the road. He told his mother to follow him, but three soldiers stopped her
notice of this decision all official and unofficial reports of the investigation and told her to stay.[12]
undertaken in connection with their case, except those already on file herein;
Among the men who came to take him, Raymond recognized brothers
2. To confirm in writing the present places of official assignment of M/Sgt Michael de la Cruz, Madning de la Cruz, Puti de la Cruz, and Pula de la Cruz,
Hilario aka Rollie Castillo and Donald Caigas within five days from notice who all acted as lookout. They were all members of the CAFGU and residing
of this decision. in Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy
Mendoza and Rudy Mendoza, also members of the CAFGU. While he was
3. To cause to be produced to this Court all medical reports, records and being forcibly taken, he also saw outside of his house two barangay
charts, reports of any treatment given or recommended and medicines councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and
prescribed, if any, to the petitioners, to include a list of medical and (sic) armed men.[13]
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 men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who
The compliance with this decision shall be made under the signature and oath took him. Later, in his 18 months of captivity, he learned their names. The
of respondent AFP Chief of Staff or his duly authorized deputy, the latters one who drove the van was Rizal Hilario alias Rollie Castillo, whom he
authority to be express and made apparent on the face of the sworn estimated was about 40 years of age or older. The leader of the team who
compliance with this directive. 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,
SO ORDERED.[10] 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
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged and made to sit beside Raymond. Both of them were beaten up. On the road,
by herein respondents: he recognized the voice of the person beside him as his brother Reynaldos.
The van stopped several times until they finally arrived at a house. Raymond
Respondent Raymond Manalo recounted that about one or two weeks before and Reynaldo were each brought to a different room. With the doors of their
February 14, 2006, several uniformed and armed soldiers and members of the rooms left open, Raymond saw several soldiers continuously hitting his
CAFGU summoned to a meeting all the residents of their barangay in San brother Reynaldo on the head and other parts of his body with the butt of their
Idelfonso, Bulacan. Respondents were not able to attend as they were not guns for about 15 minutes. After which, Reynaldo was brought to his
informed of the gathering, but Raymond saw some of the soldiers when he (Raymonds) room and it was his (Raymonds) turn to be beaten up in the other
passed by the barangay hall.[11] room. The soldiers asked him if he was a member of the New Peoples Army.
Each time he said he was not, he was hit with the butt of their guns. He was
On February 14, 2006, Raymond was sleeping in their house in Buhol na questioned where his comrades were, how many soldiers he had killed, and
Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers how many NPA members he had helped. Each time he answered none, they
wearing white shirts, fatigue pants and army boots, entered their house and hit him.[15]
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 In the next days, Raymonds interrogators appeared to be high officials as the
both cheeks and nudged him in the stomach. He was then handcuffed, brought soldiers who beat him up would salute them, call them sir, and treat them with
to the rear of his house, and forced to the ground face down. He was kicked respect. He was in blindfolds when interrogated by the high officials, but he
on the hip, ordered to stand and face up to the light, then forcibly brought saw their faces when they arrived and before the blindfold was put on. He

12
noticed that the uniform of the high officials was different from those of the Raymond recalled that sometime in April until May 2006, he was detained in
other soldiers. One of those officials was tall and thin, wore white pants, tie, a room enclosed by steel bars. He stayed all the time in that small room
and leather shoes, instead of combat boots. He spoke in Tagalog and knew measuring 1 x 2 meters, and did everything there, including urinating,
much about his parents and family, and a habeas corpus case filed in removing his bowels, bathing, eating and sleeping. He counted that eighteen
connection with the respondents abduction.[16] While these officials people[22] had been detained in that bartolina, including his brother
interrogated him, Raymond was not manhandled. But once they had left, the Reynaldo and himself.[23]
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 For about three and a half months, the respondents were detained in Fort
left-over and rotten food.[17] 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,
On the third week of respondents detention, two men arrived while Raymond helipad and mango trees. At dawn, soldiers marched by their house. They
was sleeping and beat him up. They doused him with urine and hot water, hit were also sometimes detained in what he only knew as the DTU.[24]
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 At the DTU, a male doctor came to examine respondents. He checked their
wood. When he could no longer endure the torture and could hardly breathe, body and eyes, took their urine samples and marked them. When asked how
they stopped. They then subjected Reynaldo to the same ordeal in another they were feeling, they replied that they had a hard time urinating, their
room. Before their torturers left, they warned Raymond that they would come stomachs were aching, and they felt other pains in their body. The next day,
back the next day and kill him.[18] two ladies in white arrived. They also examined respondents and gave them
medicines, including orasol, amoxicillin and mefenamic acid. They brought
The following night, Raymond attempted to escape. He waited for the guards with them the results of respondents urine test and advised them to drink
to get drunk, then made noise with the chains put on him to see if they were plenty of water and take their medicine. The two ladies returned a few more
still awake. When none of them came to check on him, he managed to free times. Thereafter, medicines were sent through the master of the DTU,
his hand from the chains and jumped through the window. He passed through Master Del Rosario alias Carinyoso at Puti. Respondents were kept in the
a helipad and firing range and stopped near a fishpond where he used stones DTU for about two weeks. While there, he met a soldier named Efren who
to break his chains. After walking through a forested area, he came near a said that Gen. Palparan ordered him to monitor and take care of them.[25]
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 One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along
that he was in Fort Magsaysay.[19] He reached the highway, but some with Efren and several other armed men wearing fatigue suits, went to a
soldiers spotted him, forcing him to run away. The soldiers chased him and detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained
caught up with him. They brought him to another place near the entrance of for one or two weeks in a big two-storey house. Hilario and Efren stayed with
what he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and hit them. While there, Raymond was beaten up by Hilarios men.[26]
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 From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Raymond before he was killed. The soldiers ceased the torture and he was Bulacan on board the Revo. They were detained in a big unfinished house
returned inside Fort Magsaysay where Reynaldo was detained.[20] 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
For some weeks, the respondents had a respite from all the torture. Their to a basketball court in the center of the compound and made to sit. Gen.
wounds were treated. When the wounds were almost healed, the torture Palparan was already waiting, seated. He was about two arms length away
resumed, particularly when respondents guards got drunk.[21] from respondents. He began by asking if respondents felt well already, to
which Raymond replied in the affirmative. He asked Raymond if he knew

13
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 One of the soldiers named Arman made Raymond take the medicine left by
would not be because he did not believe that Gen. Palparan was an evil Gen. Palparan. The medicine, named Alive, was green and yellow. Raymond
man.[27] 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
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz: medicine. The Alive made them sleep each time they took it, and they felt
heavy upon waking up.[33]
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin? After a few days, Hilario arrived again. He took Reynaldo and left Raymond
at Sapang. Arman instructed Raymond that while in Sapang, he should
Sumagot akong, Siyempre po, natatakot din 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
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang pagkakataon na him from his house, and got acquainted with other military men and
mabuhay, bastat sundin nyo ang lahat ng sasabihin ko sabihin mo sa civilians.[34]
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 After about three months in Sapang, Raymond was brought to Camp Tecson
na huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na under the 24th Infantry Battalion. He was fetched by three unidentified men
sa gobyerno.[28] 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]
Respondents agreed to do as Gen. Palparan told them as they felt they could
not do otherwise. At about 3:00 in the morning, Hilario, Efren and the formers The next day, Raymonds chains were removed and he was ordered to clean
men - the same group that abducted them - brought them to their parents outside the barracks. It was then he learned that he was in a detachment of
house. Raymond was shown to his parents while Reynaldo stayed in the Revo the Rangers. There were many soldiers, hundreds of them were training. He
because he still could not walk. In the presence of Hilario and other soldiers, was also ordered to clean inside the barracks. In one of the rooms therein, he
Raymond relayed to his parents what Gen. Palparan told him. As they were met Sherlyn Cadapan from Laguna. She told him that she was a student of
afraid, Raymonds parents acceded. Hilario threatened Raymonds parents that the University of the Philippines and was abducted in Hagonoy, Bulacan. She
if they continued to join human rights rallies, they would never see their confided that she had been subjected to severe torture and raped. She was
children again. The respondents were then brought back to Sapang.[29] 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]
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 After a week, Reynaldo was also brought to Camp Tecson. Two days from
and Cabalse.[30] When Gen. Palparan saw Raymond, he called for him. He his arrival, two other captives, Karen Empeo and Manuel Merino, arrived.
was in a big white vehicle. Raymond stood outside the vehicle as Gen. Karen and Manuel were put in the room with Allan whose name they later
Palparan told him to gain back his strength and be healthy and to take the came to know as Donald Caigas, called master or commander by his men in
medicine he left for him and Reynaldo. He said the medicine was expensive the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining
at Php35.00 each, and would make them strong. He also said that they should room. At times, Raymond and Reynaldo were threatened, and Reynaldo was
prove that they are on the side of the military and warned that they would not beaten up. In the daytime, their chains were removed, but were put back on
be given another chance.[31] During his testimony, Raymond identified Gen. at night. They were threatened that if they escaped, their families would all
Palparan by his picture.[32] be killed.[37]

14
camp. Raymond narrated what he witnessed and experienced in the camp,
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the viz:
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, Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita
2006, respondents were brought to their parents to instruct them not to attend ko si Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni
the hearing. However, their parents had already left for Manila. Respondents Donald na kung mayroon man kaming makita o marinig, walang nangyari.
were brought back to Camp Tecson. They stayed in that camp from Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa
September 2006 to November 2006, and Raymond was instructed to continue kampo. Mayroong binuhos sa kanyang katawan at itoy sinunog. Masansang
using the name Oscar and holding himself out as a military trainee. He got ang amoy.
acquainted with soldiers of the 24th Infantry Battalion whose names and
descriptions he stated in his affidavit.[38] 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
On November 22, 2006, respondents, along with Sherlyn, Karen, and naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy
Manuel, were transferred to a camp of the 24th Infantry Battalion in Limay, ko iyon nang nililinis ang bakas.
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, Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali
battalion soldiers whom Raymond knew as Mar and Billy beat him up and hit sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong
him in the stomach with their guns. Sherlyn and Karen also suffered nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya
enormous torture in the camp. They were all made to clean, cook, and help in tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post
raising livestock.[39] 3; sinilaban ang bangkay at ibinaon ito.

Raymond recalled that when Operation Lubog was launched, Caigas and Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba
some other soldiers brought him and Manuel with them to take and kill all ang mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng
sympathizers of the NPA. They were brought to Barangay Bayan-bayanan, bakod. Kinaumagahan nakita kong mayroong sinilaban, at
Bataan where he witnessed the killing of an old man doing kaingin. The napakamasangsang ang amoy.
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 May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko
another Operation Lubog, Raymond was brought to Barangay Orion in a sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at
house where NPA men stayed. When they arrived, only the old man of the hindi ko na sila nakita.
house who was sick was there. They spared him and killed only his son right
before Raymonds eyes.[41] xxx xxx xxx

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil
transferred to Zambales, in a safehouse near the sea. Caigas and some of his kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang
men stayed with them. A retired army soldier was in charge of the house. suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa
Like in Limay, the five detainees were made to do errands and chores. They istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel.
stayed in Zambales from May 8 or 9, 2007 until June 2007.[42] Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel.

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

15
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 added that when they were taken from their house on February 14, 2006, he
na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil saw the faces of his abductors before he was blindfolded with his shirt. He
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi. also named the soldiers he got acquainted with in the 18 months he was
detained. When Raymond attempted to escape from Fort Magsaysay,
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung Reynaldo was severely beaten up and told that they were indeed members of
ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was
hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo. hit on the back and punched in the face until he could no longer bear the pain.
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] 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
On or about June 13, 2007, Raymond and Reynaldo were brought to mountainous area. He was instructed to use the name Rodel and to represent
Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario
respondents to also farm his land, in exchange for which, he would take care brought along Reynaldo in his trips. One time, he was brought to a market in
of the food of their family. They were also told that they could farm a small San Jose, del Monte, Bulacan and made to wait in the vehicle while Hilario
plot adjoining his land and sell their produce. They were no longer put in was buying. He was also brought to Tondo, Manila where Hilario delivered
chains and were instructed to use the names Rommel (for Raymond) and Rod boxes of Alive in different houses. In these trips, Hilario drove a black and
(for Reynaldo) and represent themselves as cousins from Rizal, Laguna.[44] 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
Respondents started to plan their escape. They could see the highway from passed by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign
where they stayed. They helped farm adjoining lands for which they were board, Welcome to Camp Tecson.[46]
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 Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond
cellular phone as he wanted to exchange text messages with a girl who lived and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was
nearby. A phone was pawned to him, but he kept it first and did not use it. connected with the Medical Action Group, an organization handling cases of
They earned some more until they had saved Php1,400.00 between them. human rights violations, particularly cases where torture was involved. He
was requested by an NGO to conduct medical examinations on the
There were four houses in the compound. Raymond and Reynaldo were respondents after their escape. He first asked them about their ordeal, then
housed in one of them while their guards lived in the other three. Caigas proceeded with the physical examination. His findings showed that the scars
entrusted respondents to Nonong, the head of the guards. Respondents house borne by respondents were consistent with their account of physical injuries
did not have electricity. They used a lamp. There was no television, but they inflicted upon them. The examination was conducted on August 15, 2007,
had a radio. In the evening of August 13, 2007, Nonong and his cohorts had two days after respondents escape, and the results thereof were reduced into
a drinking session. At about 1:00 a.m., Raymond turned up the volume of the writing. Dr. Molino took photographs of the scars. He testified that he
radio. When none of the guards awoke and took notice, Raymond and followed the Istanbul Protocol in conducting the examination.[47]
Reynaldo proceeded towards the highway, leaving behind their sleeping
guards and barking dogs. They boarded a bus bound for Manila and were thus Petitioners dispute respondents account of their alleged abduction and torture.
freed from captivity.[45] 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
Reynaldo also executed an affidavit affirming the contents of Raymonds involvement therein, viz:
affidavit insofar as they related to matters they witnessed together. Reynaldo

16
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, 8. In connection with the Writ of Amparo issued by the Honorable Supreme
forcibly abducted, detained, held incommunicado, disappeared or under the Court in this case, I have directed the Chief of Staff, AFP to institute
custody by the military. This is a settled issue laid to rest in the habeas corpus immediate action in compliance with Section 9(d) of the Amparo Rule and to
case filed in their behalf by petitioners parents before the Court of Appeals in submit report of such compliance Likewise, in a Memorandum Directive also
C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as dated October 31, 2007, I have issued a policy directive addressed to the
head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Chief of Staff, AFP that the AFP should adopt the following rules of action
Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes in the event the Writ of Amparo is issued by a competent court against any
Esperon, in his capacity as the Commanding General of the Philippine Army, members of the AFP:
and members of the Citizens Armed Forces Geographical Unit (CAFGU),
namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela (1) to verify the identity of the aggrieved party;
Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein
submitted a return of the writ On July 4, 2006, the Court of Appeals dropped (2) to recover and preserve evidence related to the death or disappearance of
as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding the person identified in the petition which may aid in the prosecution of the
General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito person or persons responsible;
S. Palparan, then Commanding General, 7th Infantry Division, Philippine
Army, stationed at Fort Magsaysay, Palayan City, Nueva Ecija, upon a (3) to identify witnesses and obtain statements from them concerning the
finding that no evidence was introduced to establish their personal death or disappearance;
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 (4) to determine the cause, manner, location and time of death or
evidence establishing his involvement in any capacity in the disappearance disappearance as well as any pattern or practice that may have brought about
of the Manalo brothers, although it held that the remaining respondents were the death or disappearance;
illegally detaining the Manalo brothers and ordered them to release the
latter.[48] (5) to identify and apprehend the person or persons involved in the death or
disappearance; and

Attached to the Return of the Writ was the affidavit of therein respondent (6) to bring the suspected offenders before a competent court.[49]
(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:
Therein respondent AFP Chief of Staff also submitted his own affidavit,
7. The Secretary of National Defense does not engage in actual military attached to the Return of the Writ, attesting that he received the above
directional operations, neither does he undertake command directions of the directive of therein respondent Secretary of National Defense and that acting
AFP units in the field, nor in any way micromanage the AFP operations. The on this directive, he did the following:
principal responsibility of the Secretary of National Defense is focused in
providing strategic policy direction to the Department (bureaus and agencies) 3.1. As currently designated Chief of Staff, Armed Forces of the Philippines
including the 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.

17
3.2. I have caused the immediate investigation and submission of the result 12) After going to the 24th IB in Limay, Bataan, we made further inquiries
thereof to Higher headquarters and/or direct the immediate conduct of the with the Philippine National Police, Limay, Bataan regarding the alleged
investigation on the matter by the concerned unit/s, dispatching Radio detentions or deaths and were informed that none was reported to their good
Message on November 05, 2007, addressed to the Commanding General, office;
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. 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
3.3. We undertake to provide result of the investigations conducted or to be place where Sherlyn Cadapan, Karen Empeo and Manuel Merino were
conducted by the concerned unit relative to the circumstances of the alleged detained. As per the inquiry, however, no such beachhouse was used as a
disappearance of the persons in whose favor the Writ of Amparo has been detention place found to have been used by armed men to detain Cadapan,
sought for as soon as the same has been furnished Higher headquarters. Empeo and Merino.[51]

3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan and Empeo pending before the It was explained in the Return of the Writ that for lack of sufficient time, the
Supreme Court. affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka
Rollie Castillo, and other persons implicated by therein petitioners could not
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts be secured in time for the submission of the Return and would be
to establish the surrounding circumstances of the disappearances of the subsequently submitted.[52]
petitioners and to bring those responsible, including any military personnel if
shown to have participated or had complicity in the commission of the Herein petitioners presented a lone witness in the summary hearings, Lt. Col.
complained acts, to the bar of justice, when warranted by the findings and the Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army,
competent evidence that may be gathered in the process.[50] 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
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Battalion is part of the 7th Infantry Division.[54]
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another amparo
case in this Court, involving Cadapan, Empeo and Merino, which averred On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General
among others, viz: of the 7th Infantry Division, Maj. Gen. Jovito Palaran,[55] through his
Assistant Chief of Staff,[56] to investigate the alleged abduction of the
10) Upon reading the allegations in the Petition implicating the 24th Infantry respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de
Batallion detachment as detention area, I immediately went to the 24th IB la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka
detachment in Limay, Bataan and found no untoward incidents in the area nor Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and
any detainees by the name of Sherlyn Cadapan, Karen Empeo and Manuel a civilian named Rudy Mendoza. He was directed to determine: (1) the
Merino being held captive; veracity of the abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative liability of
11) There was neither any reports of any death of Manuel Merino in the 24th said auxiliaries, if any.[57] Jimenez testified that this particular investigation
IB in Limay, Bataan; 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

18
on the television, and he was concerned about what was happening within his as alleged members of the Citizen Armed Forces Geographical Unit
territorial jurisdiction.[58] (CAFGU).

Jimenez summoned all six implicated persons for the purpose of having them a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May
execute sworn statements and conducting an investigation on May 29, 2006 in (Exhibit B) states that he was at Sitio Mozon, Brgy. Bohol na
2006.[59] The investigation started at 8:00 in the morning and finished at Mangga, San Ildefonso, Bulacan doing the concrete building of a church
10:00 in the evening.[60] The investigating officer, Technical Sgt. Eduardo located nearby his residence, together with some neighbor thereat. He claims
Lingad, took the individual sworn statements of all six persons on that day. that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo
There were no other sworn statements taken, not even of the Manalo family, Umayan about the abduction of the brothers Raymond and Reynaldo Manalo.
nor were there other witnesses summoned and investigated[61] as according As to the allegation that he was one of the suspects, he claims that they only
to Jimenez, the directive to him was only to investigate the six persons.[62] 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.
Jimenez was beside Lingad when the latter took the statements.[63] The six Subject vehemently denied any participation or involvement on the abduction
persons were not known to Jimenez as it was in fact his first time to meet of said victims.
them.[64] During the entire time that he was beside Lingad, a subordinate of
his in the Office of the Provost Marshall, Jimenez did not propound a single b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29
question to the six persons.[65] 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
Jimenez testified that all six statements were taken on May 29, 2006, but na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and
Marcelo Mendoza and Rudy Mendoza had to come back the next day to sign Reynaldo Manalo being his neighbors are active members/sympathizers of
their statements as the printing of their statements was interrupted by a power the CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE
failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of being an NPA Leader operating in their province. That at the time of the
of their statements indicated that they were signed on May 29, 2006.[66] alleged abduction of the two (2) brothers and for accusing him to be one of
When the Sworn Statements were turned over to Jimenez, he personally the suspects, he claims that on February 14, 2006, he was one of those
wrote his investigation report. He began writing it in the afternoon of May working at the concrete chapel being constructed nearby his residence. He
30, 2006 and finished it on June 1, 2006.[67] He then gave his report to the claims further that he just came only to know about the incident on other day
Office of the Chief of Personnel.[68] (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That
subject CAA vehemently denied any participation about the incident and
As petitioners largely rely on Jimenezs Investigation Report dated June 1, claimed that they only implicated him because he is a member of the CAFGU.
2006 for their evidence, the report is herein substantially quoted:
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in
III. BACKGROUND OF THE CASE (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
4. This pertains to the abduction of RAYMOND MANALO and Detachment. That being a neighbor, he was very much aware about the
REYNALDO MANALO who were forcibly taken from their respective background of the two (2) brothers Raymond and Reynaldo as active
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February supporters of the CPP NPA in their Brgy. and he also knew their elder brother
2006 by unidentified armed men and thereafter were forcibly disappeared. KUMANDER BESTRE TN: Rolando Manalo. Being one of the accused, he
After the said incident, relatives of the victims filed a case for Abduction in claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel,
the civil court against the herein suspects: Michael dela Cruz, Madning dela Bulacan in the house of his aunt and he learned only about the incident when
Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza he arrived home in their place. He claims further that the only reason why

19
they implicated him was due to the fact that his mother has filed a criminal that he knew very well the brothers Raymond and Reynaldo Manalo in their
charge against their brother Rolando Manalo @ KA BESTRE who is an NPA barangay for having been the Tanod Chief for twenty (20) years. He alleged
Commander who killed his father and for that reason they implicated him in further that they are active supporters or sympathizers of the CPP/NPA and
support of their brother. Subject CAA vehemently denied any involvement whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader
on the abduction of said Manalo brothers. 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
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in and he learned only about the incident which is the abduction of Raymond
(Exhibit E) states that he is a resident of Brgy. Marungko, Angat, Bulacan. and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo
He claims that Raymond and Reynaldo Manalo are familiar to him being his Cunanan informed him about the matter. He claims further that he is truly
barriomate when he was still unmarried and he knew them since childhood. innocent of the allegation against him as being one of the abductors and he
Being one of the accused, he claims that on 14 February 2006, he was at his considers everything fabricated in order to destroy his name that remains
residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being loyal to his service to the government as a CAA member.
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 IV. DISCUSSION
military and CAFGU. The only reason he knows why they implicated him
was because there are those people who are angry with their family 5. Based on the foregoing statements of respondents in this particular case,
particularly victims of summary execution (killing) done by their brother @ the proof of linking them to the alleged abduction and disappearance of
KA Bestre Rolando Manalo who is an NPA leader. He claims further that it Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio
was their brother @ KA BESTRE who killed his father and he was living Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated.
witness to that incident. Subject civilian vehemently denied any involvement Their alleged involvement theretofore to that incident is considered doubtful,
on the abduction of the Manalo brothers. hence, no basis to indict them as charged in this investigation.

e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in Though there are previous grudges between each families (sic) in the past to
(Exhibit F) states that he is a resident of Sitio Muzon, Brgy. Buhol na quote: the killing of the father of Randy and Rudy Mendoza by @ KA
Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak BESTRE TN: Rolando Manalo, this will not suffice to establish a fact that
na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo they were the ones who did the abduction as a form of revenge. As it was also
Manalo are familiar to him being their barrio mate. He claims further that stated in the testimony of other accused claiming that the Manalos are active
they are active supporters of CPP/NPA and that their brother Rolando Manalo sympathizers/supporters of the CPP/NPA, this would not also mean,
@ KA BESTRE is an NPA leader. Being one of the accused, he claims that however, that in the first place, they were in connivance with the abductors.
on 14 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Being their neighbors and as members of CAFGUs, they ought to be vigilant
Mangga, San Ildefonso, Bulacan. That he vehemently denied any in protecting their village from any intervention by the leftist group, hence
participation of the alleged abduction of the two (2) brothers and learned only inside their village, they were fully aware of the activities of Raymond and
about the incident when rumors reached him by his barrio mates. He claims Reynaldo Manalo in so far as their connection with the CPP/NPA is
that his implication is merely fabricated because of his relationship to Roman concerned.
and Maximo who are his brothers.
V. CONCLUSION
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 6. Premises considered surrounding this case shows that the alleged charges
Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU of abduction committed by the above named respondents has not been
member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims established in this investigation. Hence, it lacks merit to indict them for any

20
administrative punishment and/or criminal liability. It is therefore concluded ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND
that they are innocent of the charge. DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE
COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND
VI. RECOMMENDATIONS CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR
RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL
Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO
Mendoza be exonerated from the case. THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.[70]

8. Upon approval, this case can be dropped and closed.[69]

The case at bar is the first decision on the application of the Rule on the Writ
In this appeal under Rule 45, petitioners question the appellate courts of Amparo (Amparo Rule). Let us hearken to its beginning.
assessment of the foregoing evidence and assail the December 26, 2007
Decision on the following grounds, viz: The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit
I. 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
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED social spectrum, as well as all the stakeholders in the justice system[72]
IN BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE participated in mapping out ways to resolve the crisis.
INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND
OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING On October 24, 2007, the Court promulgated the Amparo Rule in light of the
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND prevalence of extralegal killing and enforced disappearances.[73] It was an
MANALO. exercise for the first time of the Courts expanded power to promulgate rules
to protect our peoples constitutional rights, which made its maiden
appearance in the 1987 Constitution in response to the Filipino experience of
the martial law regime.[74] As the Amparo Rule was intended to address the
II. 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,
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED enforced disappearances are attended by the following characteristics: an
IN REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) arrest, detention or abduction of a person by a government official or
FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF organized groups or private individuals acting with the direct or indirect
APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS OF THE acquiescence of the government; the refusal of the State to disclose the fate
INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR or whereabouts of the person concerned or a refusal to acknowledge the
CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) deprivation of liberty which places such persons outside the protection of
CONFIRM IN WRITING THE PRESENT PLACES OF OFFICIAL law.[76]

21
casacion for the judicial review of the constitutionality and legality of a
The writ of amparo originated in Mexico. Amparo literally means protection judicial decision; (4) amparo administrativo for the judicial review of
in Spanish.[77] In 1837, de Tocquevilles Democracy in America became administrative actions; and (5) amparo agrario for the protection of peasants
available in Mexico and stirred great interest. Its description of the practice rights derived from the agrarian reform process.[85]
of judicial review in the U.S. appealed to many Mexican jurists.[78] One of
them, Manuel Crescencio Rejn, drafted a constitutional provision for his In Latin American countries, except Cuba, the writ of amparo has been
native state, Yucatan,[79] which granted judges the power to protect all constitutionally adopted to protect against human rights abuses especially
persons in the enjoyment of their constitutional and legal rights. This idea committed in countries under military juntas. In general, these countries
was incorporated into the national constitution in 1847, viz: adopted an all-encompassing writ to protect the whole gamut of constitutional
rights, including socio-economic rights.[86] Other countries like Colombia,
The federal courts shall protect any inhabitant of the Republic in the exercise Chile, Germany and Spain, however, have chosen to limit the protection of
and preservation of those rights granted to him by this Constitution and by the writ of amparo only to some constitutional guarantees or fundamental
laws enacted pursuant hereto, against attacks by the Legislative and rights.[87]
Executive powers of the federal or state governments, limiting themselves to
granting protection in the specific case in litigation, making no general In the Philippines, while the 1987 Constitution does not explicitly provide for
declaration concerning the statute or regulation that motivated the the writ of amparo, several of the above amparo protections are guaranteed
violation.[80] 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
Since then, the protection has been an important part of Mexican amounting to lack or excess of jurisdiction on the part of any branch or
constitutionalism.[81] If, after hearing, the judge determines that a instrumentality of the Government. The Clause accords a similar general
constitutional right of the petitioner is being violated, he orders the official, protection to human rights extended by the amparo contra leyes, amparo
or the officials superiors, to cease the violation and to take the necessary casacion, and amparo administrativo. Amparo libertad is comparable to the
measures to restore the petitioner to the full enjoyment of the right in remedy of habeas corpus found in several provisions of the 1987
question. Amparo thus combines the principles of judicial review derived Constitution.[88] The Clause is an offspring of the U.S. common law
from the U.S. with the limitations on judicial power characteristic of the civil tradition of judicial review, which finds its roots in the 1803 case of Marbury
law tradition which prevails in Mexico. It enables courts to enforce the v. Madison.[89]
constitution by protecting individual rights in particular cases, but prevents
them from using this power to make law for the entire nation.[82] While constitutional rights can be protected under the Grave Abuse Clause
through remedies of injunction or prohibition under Rule 65 of the Rules of
The writ of amparo then spread throughout the Western Hemisphere, Court and a petition for habeas corpus under Rule 102,[90] these remedies
gradually evolving into various forms, in response to the particular needs of may not be adequate to address the pestering problem of extralegal killings
each country.[83] It became, in the words of a justice of the Mexican Federal and enforced disappearances. However, with the swiftness required to resolve
Supreme Court, one piece of Mexicos self-attributed task of conveying to the a petition for a writ of amparo through summary proceedings and the
worlds legal heritage that institution which, as a shield of human dignity, her availability of appropriate interim and permanent reliefs under the Amparo
own painful history conceived.[84] What began as a protection against acts Rule, this hybrid writ of the common law and civil law traditions - borne out
or omissions of public authorities in violation of constitutional rights later of the Latin American and Philippine experience of human rights abuses -
evolved for several purposes: (1) amparo libertad for the protection of offers a better remedy to extralegal killings and enforced disappearances and
personal freedom, equivalent to the habeas corpus writ; (2) amparo contra threats thereof. The remedy provides rapid judicial relief as it partakes of a
leyes for the judicial review of the constitutionality of statutes; (3) amparo summary proceeding that requires only substantial evidence to make the

22
appropriate reliefs available to the petitioner; it is not an action to determine In delving into the veracity of the evidence, we need to mine and refine the
criminal guilt requiring proof beyond reasonable doubt, or liability for ore of petitioners cause of action, to determine whether the evidence
damages requiring preponderance of evidence, or administrative presented is metal-strong to satisfy the degree of proof required.
responsibility requiring substantial evidence that will require full and
exhaustive proceedings.[91] Section 1 of the Rule on the Writ of Amparo provides for the following causes
of action, viz:
The writ of amparo serves both preventive and curative roles in addressing
the problem of extralegal killings and enforced disappearances. It is Section 1. Petition. The petition for a writ of amparo is a remedy available to
preventive in that it breaks the expectation of impunity in the commission of any person whose right to life, liberty and security is violated or threatened
these offenses; it is curative in that it facilitates the subsequent punishment of with violation by an unlawful act or omission of a public official or employee,
perpetrators as it will inevitably yield leads to subsequent investigation and or of a private individual or entity.
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.
The writ shall cover extralegal killings and enforced disappearances or threats
In the case at bar, respondents initially filed an action for Prohibition, thereof. (emphasis supplied)
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 Sections 17 and 18, on the other hand, provide for the degree of proof
including Protective Custody Orders, Appointment of Commissioner, required, viz:
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 Sec. 17. Burden of Proof and Standard of Diligence Required. The parties
of the Rules of Court. When the Amparo Rule came into effect on October shall establish their claims by substantial evidence.
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.
xxx xxx xxx
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: 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
The Court of Appeals seriously and grievously erred in believing and giving be proper and appropriate; otherwise, the privilege shall be denied. (emphases
full faith and credit to the incredible uncorroborated, contradicted, and supplied)
obviously scripted, rehearsed and self-serving affidavit/testimony of herein
respondent Raymond Manalo.[94]

Substantial evidence has been defined as such relevant evidence as a


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

23
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 The efforts exerted by the Military Command to look into the abduction were,
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, at best, merely superficial. The investigation of the Provost Marshall of the
2006 and were continuously detained until they escaped on August 13, 2007. 7th Infantry Division focused on the one-sided version of the CAFGU
The abduction, detention, torture, and escape of the respondents were auxiliaries involved. This one-sidedness might be due to the fact that the
narrated by respondent Raymond Manalo in a clear and convincing manner. Provost Marshall could delve only into the participation of military personnel,
His account is dotted with countless candid details of respondents harrowing but even then the Provost Marshall should have refrained from outrightly
experience and tenacious will to escape, captured through his different senses exculpating the CAFGU auxiliaries he perfunctorily investigated
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 Gen. Palparans participation in the abduction was also established. At the
ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, very least, he was aware of the petitioners captivity at the hands of men in
narinig ko ang hiyaw o ungol ni Manuel.[97] May naiwang mga bakas ng uniform assigned to his command. In fact, he or any other officer tendered no
dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis controversion to the firm claim of Raymond that he (Gen. Palparan) met them
ang bakas.[98] Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato in person in a safehouse in Bulacan and told them what he wanted them and
para tanggalin ang mga kadena.[99] Tinanong ko sa isang kapit-bahay kung their parents to do or not to be doing. Gen. Palparans direct and personal role
paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang in the abduction might not have been shown but his knowledge of the dire
babae na nakatira sa malapit na lugar.[100] situation of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command policy
We affirm the factual findings of the appellate court, largely based on that unavoidably encouraged and not merely tolerated the abduction of
respondent Raymond Manalos affidavit and testimony, viz: civilians without due process of law and without probable cause.

the abduction was perpetrated by armed men who were sufficiently identified In the habeas proceedings, the Court, through the Former Special Sixth
by the petitioners (herein respondents) to be military personnel and CAFGU Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and
auxiliaries. Raymond recalled that the six armed men who barged into his Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
house through the rear door were military men based on their attire of fatigue evidence to establish that M/Sgt. Rizal Hilario had anything to do with the
pants and army boots, and the CAFGU auxiliaries, namely: Michael de la abduction or the detention. Hilarios involvement could not, indeed, be then
Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members established after Evangeline Francisco, who allegedly saw Hilario drive the
of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the van in which the petitioners were boarded and ferried following the
brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served abduction, did not testify. (See the decision of the habeas proceedings at rollo,
as lookouts during the abduction. Raymond was sure that three of the six p. 52)
military men were Ganata, who headed the abducting team, Hilario, who
drove the van, and George. Subsequent incidents of their long captivity, as However, in this case, Raymond attested that Hilario drove the white L-300
narrated by the petitioners, validated their assertion of the participation of the van in which the petitioners were brought away from their houses on
elements of the 7th Infantry Division, Philippine Army, and their CAFGU February 14, 2006. Raymond also attested that Hilario participated in
auxiliaries. subsequent incidents during the captivity of the petitioners, one of which was
when Hilario fetched them from Fort Magsaysay on board a Revo and
We are convinced, too, that the reason for the abduction was the suspicion conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they
that the petitioners were either members or sympathizers of the NPA, were detained for at least a week in a house of strong materials (Exhibit D,
considering that the abductors were looking for Ka Bestre, who turned out to rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang,
be Rolando, the brother of petitioners. San Miguel, Bulacan on board the Revo, to an unfinished house inside the

24
compound of Kapitan where they were kept for more or less three months. and tortured by agents of the Guatemalan government. In this case, Sister
(Exhibit D, rollo, p. 205) It was there where the petitioners came face to face Ortiz was kidnapped and tortured in early November 1989. The Commissions
with Gen. Palparan. Hilario and Efren also brought the petitioners one early findings of fact were mostly based on the consistent and credible statements,
morning to the house of the petitioners parents, where only Raymond was written and oral, made by Sister Ortiz regarding her ordeal.[106] These
presented to the parents to relay the message from Gen. Palparan not to join statements were supported by her recognition of portions of the route they
anymore rallies. On that occasion, Hilario warned the parents that they would took when she was being driven out of the military installation where she was
not again see their sons should they join any rallies to denounce human rights detained.[107] She was also examined by a medical doctor whose findings
violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four showed that the 111 circular second degree burns on her back and abrasions
Master Sergeants (the others being Arman, Ganata and Cabalse) with whom on her cheek coincided with her account of cigarette burning and torture she
Gen. Palparan conversed on the occasion when Gen. Palparan required suffered while in detention.[108]
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 With the secret nature of an enforced disappearance and the torture
in their 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
It is clear, therefore, that the participation of Hilario in the abduction and themselves, and the veracity of their account will depend on their credibility
forced disappearance of the petitioners was established. The participation of and candidness in their written and/or oral statements. Their statements can
other military personnel like Arman, Ganata, Cabalse and Caigas, among be corroborated by other evidence such as physical evidence left by the
others, was similarly established. torture they suffered or landmarks they can identify in the places where they
were detained. Where powerful military officers are implicated, the hesitation
xxx xxx xxx of witnesses to surface and testify against them comes as no surprise.

As to the CAFGU auxiliaries, the habeas Court found them personally We now come to the right of the respondents to the privilege of the writ of
involved in the abduction. We also do, for, indeed, the evidence of their amparo. There is no quarrel that the enforced disappearance of both
participation is overwhelming.[101] respondents Raymond and Reynaldo Manalo has now passed as they have
escaped from captivity and surfaced. But while respondents admit that they
We reject the claim of petitioners that respondent Raymond Manalos are no longer in detention and are physically free, they assert that they are not
statements were not corroborated by other independent and credible pieces of free in every sense of the word[109] as their movements continue to be
evidence.[102] Raymonds affidavit and testimony were corroborated by the restricted for fear that people they have named in their Judicial Affidavits and
affidavit of respondent Reynaldo Manalo. The testimony and medical reports testified against (in the case of Raymond) are still at large and have not been
prepared by forensic specialist Dr. Molino, and the pictures of the scars left held accountable in any way. These people are directly connected to the
by the physical injuries inflicted on respondents,[103] also corroborate Armed Forces of the Philippines and are, thus, in a position to threaten
respondents accounts of the torture they endured while in detention. respondents rights to life, liberty and security.[110] (emphasis supplied)
Respondent Raymond Manalos familiarity with the facilities in Fort Respondents claim that they are under threat of being once again abducted,
Magsaysay such as the DTU, as shown in his testimony and confirmed by Lt. kept captive or even killed, which constitute a direct violation of their right
Col. Jimenez to be the Division Training Unit,[104] firms up respondents to security of person.[111]
story that they were detained for some time in said military facility.
Elaborating on the right to security, in general, respondents point out that this
In Ortiz v. Guatemala,[105] a case decided by the Inter-American right is often associated with liberty; it is also seen as an expansion of rights
Commission on Human Rights, the Commission considered similar evidence, based on the prohibition against torture and cruel and unusual punishment.
among others, in finding that complainant Sister Diana Ortiz was abducted Conceding that there is no right to security expressly mentioned in Article III

25
of the 1987 Constitution, they submit that their rights to be kept free from usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v.
torture and from incommunicado detention and solitary detention places[112] Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to
fall under the general coverage of the right to security of person under the the dignity and happiness and to the peace and security of every individual,
writ of Amparo. They submit that the Court ought to give an expansive whether it be of home or of persons and correspondence. (Taada and Carreon,
recognition of the right to security of person in view of the State Policy under Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional
Article II of the 1987 Constitution which enunciates that, The State values inviolability of this great fundamental right against unreasonable searches
the dignity of every human person and guarantees full respect for human and seizures must be deemed absolute as nothing is closer to a mans soul than
rights. Finally, to justify a liberal interpretation of the right to security of the serenity of his privacy and the assurance of his personal security. Any
person, respondents cite the teaching in Moncupa v. Enrile[113] that the right interference allowable can only be for the best causes and reasons.[119]
to liberty may be made more meaningful only if there is no undue restraint (emphases supplied)
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] While the right to life under Article III, Section 1[120] guarantees essentially
the right to be alive[121] - upon which the enjoyment of all other rights is
In sum, respondents assert that their cause of action consists in the threat to preconditioned - the right to security of person is a guarantee of the secure
their right to life and liberty, and a violation of their right to security. 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
Let us put this right to security under the lens to determine if it has indeed powerful ruler. Rather, it is a life lived with the assurance that the government
been violated as respondents assert. The right to security or the right to he established and consented to, will protect the security of his person and
security of person finds a textual hook in Article III, Section 2 of the 1987 property. The ideal of security in life and property pervades the whole history
Constitution which provides, viz: of man. It touches every aspect of mans existence.[122] In a broad sense, the
right to security of person emanates in a persons legal and uninterrupted
Sec. 2. The right of the people to be secure in their persons, houses, papers enjoyment of his life, his limbs, his body, his health, and his reputation. It
and effects against unreasonable searches and seizures of whatever nature and includes the right to exist, and the right to enjoyment of life while existing,
for any purpose shall be inviolable, and no search warrant or warrant of arrest and it is invaded not only by a deprivation of life but also of those things
shall issue except upon probable cause to be determined personally by the which are necessary to the enjoyment of life according to the nature,
judge temperament, and lawful desires of the individual.[123]

A closer look at the right to security of person would yield various


At the core of this guarantee is the immunity of ones person, including the permutations of the exercise of this right.
extensions of his/her person houses, papers, and effects against government
intrusion. Section 2 not only limits the states power over a persons home and First, the right to security of person is freedom from fear. In its whereas
possessions, but more importantly, protects the privacy and sanctity of the clauses, the Universal Declaration of Human Rights (UDHR) enunciates that
person himself.[117] The purpose of this provision was enunciated by the a world in which human beings shall enjoy freedom of speech and belief and
Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: [118] freedom from fear and want has been proclaimed as the highest aspiration of
the common people. (emphasis supplied) Some scholars postulate that
The purpose of the constitutional guarantee against unreasonable searches freedom from fear is not only an aspirational principle, but essentially an
and seizures is to prevent violations of private security in person and property individual international human right.[124] It is the right to security of person
and unlawful invasion of the security of the home by officers of the law acting as the word security itself means freedom from fear.[125] Article 3 of the
under legislative or judicial sanction and to give remedy against such UDHR provides, viz:

26
Physical torture, force, and violence are a severe invasion of bodily integrity.
Everyone has the right to life, liberty and security of person.[126] (emphasis When employed to vitiate the free will such as to force the victim to admit,
supplied) 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
In furtherance of this right declared in the UDHR, Article 9(1) of the Constitution more specifically proscribes bodily and psychological invasion,
International Covenant on Civil and Political Rights (ICCPR) also provides viz:
for the right to security of person, viz:
(2) No torture, force, violence, threat or intimidation, or any other means
1. Everyone has the right to liberty and security of person. No one shall be which vitiate the free will shall be used against him (any person under
subjected to arbitrary arrest or detention. No one shall be deprived of his investigation for the commission of an offense). Secret detention places,
liberty except on such grounds and in accordance with such procedure as are solitary, incommunicado or other similar forms of detention are prohibited.
established by law. (emphasis supplied)

The Philippines is a signatory to both the UDHR and the ICCPR. Parenthetically, under this provision, threat and intimidation that vitiate the
free will - although not involving invasion of bodily integrity - nevertheless
In the context of Section 1 of the Amparo Rule, freedom from fear is the right constitute a violation of the right to security in the sense of freedom from
and any threat to the rights to life, liberty or security is the actionable wrong. threat as afore-discussed.
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 Article III, Section 12 guarantees freedom from dehumanizing abuses of
as people react differently. The degree of fear can vary from one person to persons under investigation for the commission of an offense. Victims of
another with the variation of the prolificacy of their imagination, strength of enforced disappearances who are not even under such investigation should
character or past experience with the stimulus. Thus, in the amparo context, all the more be protected from these degradations.
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 An overture to an interpretation of the right to security of person as a right
part of Section 1 of the Amparo Rule is a form of violation of the right to against torture was made by the European Court of Human Rights (ECHR)
security mentioned in the earlier part of the provision.[127] 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
Second, the right to security of person is a guarantee of bodily and him in prison, thereby violating his right to security of person. Article 5(1) of
psychological integrity or security. Article III, Section II of the 1987 the European Convention on Human Rights provides, viz: Everyone has the
Constitution guarantees that, as a general rule, ones body cannot be searched right to liberty and security of person. No one shall be deprived of his liberty
or invaded without a search warrant.[128] Physical injuries inflicted in the save in the following cases and in accordance with a procedure prescribed by
context of extralegal killings and enforced disappearances constitute more law ... (emphases supplied) Article 3, on the other hand, provides that (n)o
than a search or invasion of the body. It may constitute dismemberment, one shall be subjected to torture or to inhuman or degrading treatment or
physical disabilities, and painful physical intrusion. As the degree of physical punishment. Although the application failed on the facts as the alleged ill-
injury increases, the danger to life itself escalates. Notably, in criminal law, treatment was found baseless, the ECHR relied heavily on the concept of
physical injuries constitute a crime against persons because they are an security in holding, viz:
affront to the bodily integrity or security of a person.[129]

27
...the applicant did not bring his allegations to the attention of domestic Protection includes conducting effective investigations, organization of the
authorities at the time when they could reasonably have been expected to take government apparatus to extend protection to victims of extralegal killings or
measures in order to ensure his security and to investigate the circumstances enforced disappearances (or threats thereof) and/or their families, and
in question. 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:

xxx xxx xxx (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
... the authorities failed to ensure his security in custody or to comply with family or upon their offer of proof, without an effective search for the truth
the procedural obligation under Art.3 to conduct an effective investigation by the government.[135]
into his allegations.[131] (emphasis supplied)

This third sense of the right to security of person as a guarantee of government


The U.N. Committee on the Elimination of Discrimination against Women protection has been interpreted by the United Nations Human Rights
has also made a statement that the protection of the bodily integrity of women Committee[136] in not a few cases involving Article 9[137] of the ICCPR.
may also be related to the right to security and liberty, viz: 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
gender-based violence which impairs or nullifies the enjoyment by women of person can exist independently of the right to liberty. In other words, there
human rights and fundamental freedoms under general international law or need not necessarily be a deprivation of liberty for the right to security of
under specific human rights conventions is discrimination within the meaning person to be invoked. In Delgado Paez v. Colombia,[138] a case involving
of article 1 of the Convention (on the Elimination of All Forms of death threats to a religion teacher at a secondary school in Leticia, Colombia,
Discrimination Against Women). These rights and freedoms include . . . the whose social views differed from those of the Apostolic Prefect of Leticia,
right to liberty and security of person.[132] the Committee held, viz:

The first sentence of article 9 does not stand as a separate paragraph. Its
Third, the right to security of person is a guarantee of protection of ones rights location as a part of paragraph one could lead to the view that the right to
by the government. In the context of the writ of amparo, this right is built into security arises only in the context of arrest and detention. The travaux
the guarantees of the right to life and liberty under Article III, Section 1 of prparatoires indicate that the discussions of the first sentence did indeed focus
the 1987 Constitution and the right to security of person (as freedom from on matters dealt with in the other provisions of article 9. The Universal
threat and guarantee of bodily and psychological integrity) under Article III, Declaration of Human Rights, in article 3, refers to the right to life, the right
Section 2. The right to security of person in this third sense is a corollary of to liberty and the right to security of the person. These elements have been
the policy that the State guarantees full respect for human rights under Article dealt with in separate clauses in the Covenant. Although in the Covenant the
II, Section 11 of the 1987 Constitution.[133] As the government is the chief only reference to the right of security of person is to be found in article 9,
guarantor of order and security, the Constitutional guarantee of the rights to there is no evidence that it was intended to narrow the concept of the right to
life, liberty and security of person is rendered ineffective if government does security only to situations of formal deprivation of liberty. At the same time,
not afford protection to these rights especially when they are under threat. States parties have undertaken to guarantee the rights enshrined in the

28
Covenant. It cannot be the case that, as a matter of law, States can ignore measures to safeguard against the risk of disappearance and to conduct a
known threats to the life of persons under their jurisdiction, just because that prompt effective investigation into an arguable claim that a person has been
he or she is not arrested or otherwise detained. States parties are under an taken into custody and has not been seen since.[147] (emphasis supplied)
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 Applying the foregoing concept of the right to security of person to the case
render totally ineffective the guarantees of the Covenant.[139] (emphasis at bar, we now determine whether there is a continuing violation of
supplied) respondents right to security.

First, the violation of the right to security as freedom from threat to


The Paez ruling was reiterated in Bwalya v. Zambia,[140] which involved a respondents life, liberty and security.
political activist and prisoner of conscience who continued to be intimidated,
harassed, and restricted in his movements following his release from While respondents were detained, they were threatened that if they escaped,
detention. In a catena of cases, the ruling of the Committee was of a similar their families, including them, would be killed. In Raymonds narration, he
import: Bahamonde v. Equatorial Guinea,[141] involving discrimination, was tortured and poured with gasoline after he was caught the first time he
intimidation and persecution of opponents of the ruling party in that state; attempted to escape from Fort Magsaysay. A call from a certain Mam, who
Tshishimbi v. Zaire,[142] involving the abduction of the complainants wanted to see him before he was killed, spared him.
husband who was a supporter of democratic reform in Zaire; Dias v.
Angola,[143] involving the murder of the complainants partner and the This time, respondents have finally escaped. The condition of the threat to be
harassment he (complainant) suffered because of his investigation of the killed has come to pass. It should be stressed that they are now free from
murder; and Chongwe v. Zambia,[144] involving an assassination attempt on captivity not because they were released by virtue of a lawful order or
the chairman of an opposition alliance. 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
Similarly, the European Court of Human Rights (ECHR) has interpreted the in a camp in Limay, Bataan, respondents captors even told them that they
right to security not only as prohibiting the State from arbitrarily depriving were still deciding whether they should be executed. Respondent Raymond
liberty, but imposing a positive duty on the State to afford protection of the Manalo attested in his affidavit, viz:
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 Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4
leading case on disappearance of persons, Kurt v. Turkey.[146] In this case, na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
the claimants son had been arrested by state authorities and had not been seen pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.[148]
since. The familys requests for information and investigation regarding his
whereabouts proved futile. The claimant suggested that this was a violation
of her sons right to security of person. The ECHR ruled, viz:
The possibility of respondents being executed stared them in the eye while
... any deprivation of liberty must not only have been effected in conformity they were in detention. With their escape, this continuing threat to their life
with the substantive and procedural rules of national law but must equally be is apparent, moreso now that they have surfaced and implicated specific
in keeping with the very purpose of Article 5, namely to protect the individual officers in the military not only in their own abduction and torture, but also
from arbitrariness... Having assumed control over that individual it is in those of other persons known to have disappeared such as Sherlyn
incumbent on the authorities to account for his or her whereabouts. For this Cadapan, Karen Empeo, and Manuel Merino, among others.
reason, Article 5 must be seen as requiring the authorities to take effective

29
Understandably, since their escape, respondents have been under offenders before a competent court.[150] Petitioner AFP Chief of Staff also
concealment and protection by private citizens because of the threat to their submitted his own affidavit attesting that he received the above directive of
life, liberty and security. The threat vitiates their free will as they are forced respondent Secretary of National Defense and that acting on this directive, he
to limit their movements or activities.[149] Precisely because respondents are immediately caused to be issued a directive to the units of the AFP for the
being shielded from the perpetrators of their abduction, they cannot be purpose of establishing the circumstances of the alleged disappearance and
expected to show evidence of overt acts of threat such as face-to-face the recent reappearance of the respondents, and undertook to provide results
intimidation or written threats to their life, liberty and security. Nonetheless, of the investigations to respondents.[151] To this day, however, almost a year
the circumstances of respondents abduction, detention, torture and escape after the policy directive was issued by petitioner Secretary of National
reasonably support a conclusion that there is an apparent threat that they will Defense on October 31, 2007, respondents have not been furnished the results
again be abducted, tortured, and this time, even executed. These constitute of the investigation which they now seek through the instant petition for a
threats to their liberty, security, and life, actionable through a petition for a writ of amparo.
writ of amparo.
Under these circumstances, there is substantial evidence to warrant the
Next, the violation of the right to security as protection by the government. conclusion that there is a violation of respondents right to security as a
Apart from the failure of military elements to provide protection to guarantee of protection by the government.
respondents by themselves perpetrating the abduction, detention, and torture,
they also miserably failed in conducting an effective investigation of In sum, we conclude that respondents right to security as freedom from threat
respondents abduction as revealed by the testimony and investigation report is violated by the apparent threat to their life, liberty and security of person.
of petitioners own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the Their right to security as a guarantee of protection by the government is
7th Infantry Division. likewise violated by the ineffective investigation and protection on the part
of the military.
The one-day investigation conducted by Jimenez was very limited,
superficial, and one-sided. He merely relied on the Sworn Statements of the Finally, we come to the reliefs granted by the Court of Appeals, which
six implicated members of the CAFGU and civilians whom he met in the petitioners question.
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 First, that petitioners furnish respondents all official and unofficial reports of
a single question to ascertain the veracity of their statements or their the investigation undertaken in connection with their case, except those
credibility. He did not call for other witnesses to test the alibis given by the already in file with the court.
six implicated persons nor for the family or neighbors of the respondents.
Second, that petitioners confirm in writing the present places of official
In his affidavit, petitioner Secretary of National Defense attested that in a assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
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 Third, that petitioners cause to be produced to the Court of Appeals all
in the event the writ of amparo is issued by a competent court against any medical reports, records and charts, and reports of any treatment given or
members of the AFP, which should essentially include verification of the recommended and medicines prescribed, if any, to the Manalo brothers, to
identity of the aggrieved party; recovery and preservation of relevant include a list of medical personnel (military and civilian) who attended to
evidence; identification of witnesses and securing statements from them; them from February 14, 2006 until August 12, 2007.
determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons With respect to the first and second reliefs, petitioners argue that the
involved in the death or disappearance; and bringing of the suspected production order sought by respondents partakes of the characteristics of a

30
search warrant. Thus, they claim that the requisites for the issuance of a production and inspection of among others, the books and papers of Material
search warrant must be complied with prior to the grant of the production Distributors (Phil.) Inc. The company questioned the issuance of the
order, namely: (1) the application must be under oath or affirmation; (2) the subpoena on the ground that it violated the search and seizure clause. The
search warrant must particularly describe the place to be searched and the Court struck down the argument and held that the subpoena pertained to a
things to be seized; (3) there exists probable cause with one specific offense; civil procedure that cannot be identified or confused with unreasonable
and (4) the probable cause must be personally determined by the judge after searches prohibited by the Constitution
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 Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook
other than the bare, self-serving and vague allegations made by respondent to provide results of the investigations conducted or to be conducted by the
Raymond Manalo in his unverified declaration and affidavit, the documents concerned unit relative to the circumstances of the alleged disappearance of
respondents seek to be produced are only mentioned generally by name, with the persons in whose favor the Writ of Amparo has been sought for as soon
no other supporting details. They also argue that the relevancy of the as the same has been furnished Higher headquarters.
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. 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
Petitioners arguments do not hold water. The production order under the Castillo and Donald Caigas, as well as the submission of a list of medical
Amparo Rule should not be confused with a search warrant for law personnel, is irrelevant, improper, immaterial, and unnecessary in the
enforcement under Article III, Section 2 of the 1987 Constitution. This resolution of the petition for a writ of amparo. They add that it will
Constitutional provision is a protection of the people from the unreasonable unnecessarily compromise and jeopardize the exercise of official functions
intrusion of the government, not a protection of the government from the and duties of military officers and even unwittingly and unnecessarily expose
demand of the people such as respondents. them to threat of personal injury or even death.

Instead, the amparo production order may be likened to the production of On the contrary, the disclosure of the present places of assignment of M/Sgt.
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure Hilario aka Rollie Castillo and Donald Caigas, whom respondents both
which provides in relevant part, viz: directly implicated as perpetrators behind their abduction and detention, is
relevant in ensuring the safety of respondents by avoiding their areas of
Section 1. Motion for production or inspection order. territorial jurisdiction. Such disclosure would also help ensure that these
military officers can be served with notices and court processes in relation to
Upon motion of any party showing good cause therefor, the court in which any investigation and action for violation of the respondents rights. The list
an action is pending may (a) order any party to produce and permit the of medical personnel is also relevant in securing information to create the
inspection and copying or photographing, by or on behalf of the moving medical history of respondents and make appropriate medical interventions,
party, of any designated documents, papers, books of accounts, letters, when applicable and necessary.
photographs, objects or tangible things, not privileged, which constitute or
contain evidence material to any matter involved in the action and which are In blatant violation of our hard-won guarantees to life, liberty and security,
in his possession, custody or control 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.

In Material Distributors (Phil.) Inc. v. Judge Natividad,[153] the respondent WHEREFORE, premises considered, the petition is DISMISSED. The
judge, under authority of Rule 27, issued a subpoena duces tecum for the Decision of the Court of Appeals dated December 26, 2007 is affirmed.

31
CHICO-NAZARIO,

EN BANC VELASCO, JR.,

NACHURA,
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP);
Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal LEONARDO-DE CASTRO,
Investigation and Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency BRION,
Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of
ARMM, PNP, PERALTA,

Petitioners, BERSAMIN,

DEL CASTILLO,
- versus -
ABAD, and

VILLARAMA, JR., JJ.

MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P.


ARCILLA, JR., Attorney-in-Fact,

Respondent.

Promulgated:
G.R. No. 182498

Present:
December 3, 2009

PUNO, C.J.,
x-----------------------------------------------------------------------------------------
CARPIO, x

CORONA, DECISION

CARPIO MORALES, BRION, J.:

32
organization from the police and the CIDG, in terms of operations, chain of
command and budget.
We review in this petition for review on certiorari[1] the decision dated
March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No.
00009.[2] This CA decision confirmed the enforced disappearance of
Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the This Decision reflects the nature of the Writ of Amparo a protective remedy
petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive against violations or threats of violation against the rights to life, liberty and
portion of the CA decision reads: security.[3] It embodies, as a remedy, the courts directive to police agencies
to undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt
nor pinpoint criminal culpability for the disappearance; rather, it determines
WHEREFORE, premises considered, petition is hereby GRANTED. The responsibility, or at least accountability, for the enforced disappearance for
Court hereby FINDS that this is an enforced disappearance within the purposes of imposing the appropriate remedies to address the disappearance.
meaning of the United Nations instruments, as used in the Amparo Rules. Responsibility refers to the extent the actors have been established by
The privileges of the writ of amparo are hereby extended to Engr. Morced substantial evidence to have participated in whatever way, by action or
Tagitis. omission, in an enforced disappearance, as a measure of the remedies this
Court shall craft, among them, the directive to file the appropriate criminal
and civil cases against the responsible parties in the proper courts.
Accountability, on the other hand, refers to the measure of remedies that
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, should be addressed to those who exhibited involvement in the enforced
Criminal Investigation and Detention Group (CIDG) who should order COL. disappearance without bringing the level of their complicity to the level of
JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) responsibility defined above; or who are imputed with knowledge relating to
respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his the enforced disappearance and who carry the burden of disclosure; or those
men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director of who carry, but have failed to discharge, the burden of extraordinary diligence
ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE in the investigation of the enforced disappearance. In all these cases, the
TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A. issuance of the Writ of Amparo is justified by our primary goal of addressing
ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him as the disappearance, so that the life of the victim is preserved and his liberty
their superior- are hereby DIRECTED to exert extraordinary diligence and and security are restored.
efforts, not only to protect the life, liberty and security of Engr. Morced
Tagitis, but also to extend the privileges of the writ of amparo to Engr.
Morced Tagitis and his family, and to submit a monthly report of their actions
to this Court, as a way of PERIODIC REVIEW to enable this Court to We highlight this nature of a Writ of Amparo case at the outset to stress that
monitor the action of respondents. the unique situations that call for the issuance of the writ, as well as the
considerations and measures necessary to address these situations, may not at
all be the same as the standard measures and procedures in ordinary court
actions and proceedings. In this sense, the Rule on the Writ of Amparo[4]
This amparo case is hereby DISMISSED as to respondent LT. GEN. (Amparo Rule) issued by this Court is unique. The Amparo Rule should be
ALEXANDER YANO, Commanding General, Philippine Army, and as to read, too, as a work in progress, as its directions and finer points remain to
respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet, evolve through time and jurisprudence and through the substantive laws that
Zamboanga City, both being with the military, which is a separate and distinct Congress may promulgate.

33
Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt.
Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response;
Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,
THE FACTUAL ANTECEDENTS Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners].
After reciting Tagitis personal circumstances and the facts outlined above,
the petition went on to state:

The background facts, based on the petition and the records of the case, are
summarized below. xxxx

The established facts show that Tagitis, a consultant for the World Bank and 7. Soon after the student left the room, Engr. Tagitis went out of the pension
the Senior Honorary Counselor for the Islamic Development Bank (IDB) house to take his early lunch but while out on the street, a couple of burly
Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin men believed to be police intelligence operatives, forcibly took him and
Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the boarded the latter on a motor vehicle then sped away without the knowledge
early morning of October 31, 2007 from a seminar in Zamboanga City. They of his student, Arsimin Kunnong;
immediately checked-in at ASY Pension House. Tagitis asked Kunnong to
buy him a boat ticket for his return trip the following day to Zamboanga.
When Kunnong returned from this errand, Tagitis was no longer around.[5]
The receptionist related that Tagitis went out to buy food at around 12:30 in 8. As instructed, in the late afternoon of the same day, Kunnong returned to
the afternoon and even left his room key with the desk.[6] Kunnong looked the pension house, and was surprised to find out that subject Engr. Tagitis
for Tagitis and even sent a text message to the latters Manila-based secretary cannot [sic] be contacted by phone and was not also around and his room was
who did not know of Tagitis whereabouts and activities either; she advised closed and locked;
Kunnong to simply wait.[7]

9. Kunnong requested for the key from the desk of the pension house who
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a [sic] assisted him to open the room of Engr. Tagitis, where they discovered
UP professor of Muslim studies and Tagitis fellow student counselor at the that the personal belongings of Engr. Tagitis, including cell phones,
IDB, reported Tagitis disappearance to the Jolo Police Station.[8] On documents and other personal belongings were all intact inside the room;
November 7, 2007, Kunnong executed a sworn affidavit attesting to what he
knew of the circumstances surrounding Tagitis disappearance.[9]

10. When Kunnong could not locate Engr. Tagitis, the former sought the help
of another IDB scholar and reported the matter to the local police agency;
More than a month later (on December 28, 2007), the respondent filed a
Petition for the Writ of Amparo (petition) with the CA through her Attorney-
in-Fact, Atty. Felipe P. Arcilla.[10] The petition was directed against Lt. Gen.
Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. 11. Arsimin Kunnong including his friends and companions in Jolo, exerted
Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, efforts in trying to locate the whereabouts of Engr. Tagitis and when he

34
reported the matter to the police authorities in Jolo, he was immediately given 17. [Respondent] filed her complaint with the PNP Police Station in the
a ready answer that Engr. Tagitis could have been abducted by the Abu ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their
Sayyaf group and other groups known to be fighting against the government; help to find her husband, but [respondents] request and pleadings failed to
produce any positive results;

12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr. 18. Instead of helping the [respondent], she [sic] was told of an intriguing tale
Tagitis] by phone and other responsible officers and coordinators of the IDB by the police that her husband, subject of the petition, was not missing but
Scholarship Programme in the Philippines, who alerted the office of the was with another woman having good time somewhere, which is a clear
Governor of ARMM who was then preparing to attend the OIC meeting in indication of the [petitioners] refusal to help and provide police assistance in
Jeddah, Saudi Arabia; locating her missing husband;

13. [Respondent], on the other hand, approached some of her co-employees 19. The continued failure and refusal of the [petitioners] to release and/or
with the Land Bank in Digos branch, Digos City, Davao del Sur who likewise turn-over subject Engr. Tagitis to his family or even to provide truthful
sought help from some of their friends in the military who could help them information to [the respondent] of the subjects whereabouts, and/or allow [the
find/locate the whereabouts of her husband; respondent] to visit her husband Engr. Morced Tagitis, caused so much
sleepless nights and serious anxieties;

14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be 20. Lately, [the respondent] was again advised by one of the [petitioners] to
identified that Engr. Tagitis is in the hands of the uniformed men; go to the ARMM Police Headquarters again in Cotobato City and also to the
different Police Headquarters including [those] in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and all these places have
been visited by the [respondent] in search for her husband, which entailed
15. According to reliable information received by the [respondent], subject expenses for her trips to these places thereby resorting her to borrowings and
Engr. Tagitis is in the custody of police intelligence operatives, specifically beggings [sic] for financial help from friends and relatives only to try
with the CIDG, PNP Zamboanga City, being held against his will in an complying [sic] to the different suggestions of these police officers, despite
earnest attempt of the police to involve and connect Engr. Tagitis with the of which, her efforts produced no positive results up to the present time;
different terrorist groups;

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

35
22. The unexplained uncooperative behavior of the [petitioners] to the The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return,
[respondents] request for help and failure and refusal of the [petitioners] to stated that: he did not have any personal knowledge of, or any participation
extend the needed help, support and assistance in locating the whereabouts of in, the alleged disappearance; that he had been designated by President Gloria
Engr. Tagitis who had been declared missing since October 30, 2007 which Macapagal Arroyo as the head of a special body called TASK FORCE USIG,
is almost two (2) months now, clearly indicates that the [petitioners] are to address concerns about extralegal killings and enforced disappearances;
actually in physical possession and custody of [respondents] husband, Engr. the Task Force, inter alia, coordinated with the investigators and local police,
Tagitis; held case conferences, rendered legal advice in connection to these cases; and
gave the following summary:[13]

xxxx
xxxx

25. [The respondent] has exhausted all administrative avenues and remedies 4.
but to no avail, and under the circumstances, [the respondent] has no other
plain, speedy and adequate remedy to protect and get the release of subject a) On November 5, 2007, the Regional Director, Police Regional
Engr. Morced Tagitis from the illegal clutches of the [petitioners], their Office ARMM submitted a report on the alleged disappearance of one Engr.
intelligence operatives and the like which are in total violation of the subjects Morced Tagitis. According to the said report, the victim checked-in at ASY
human and constitutional rights, except the issuance of a WRIT OF Pension House on October 30, 2007 at about 6:00 in the morning and then
AMPARO. [Emphasis supplied] roamed around Jolo, Sulu with an unidentified companion. It was only after
a few days when the said victim did not return that the matter was reported to
Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said missing person,
but to no avail. The said PPO is still conducting investigation that will lead
On the same day the petition was filed, the CA immediately issued the Writ to the immediate findings of the whereabouts of the person.
of Amparo, set the case for hearing on January 7, 2008, and directed the
petitioners to file their verified return within seventy-two (72) hours from
service of the writ.[11]
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress
Report to the Director, CIDG. The said report stated among others that:
subject person attended an Education Development Seminar set on October
In their verified Return filed during the hearing of January 27, 2008, the 28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together with
petitioners denied any involvement in or knowledge of Tagitis alleged a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the morning,
abduction. They argued that the allegations of the petition were incomplete Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty
and did not constitute a cause of action against them; were baseless, or at best Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock in
speculative; and were merely based on hearsay evidence. [12] the morning of the same date, he instructed his student to purchase a fast craft
ticket bound for Zamboanga City and will depart from Jolo, Sulu on October

36
31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis left the That immediately upon receipt on December 29, 2007 of the Resolution of
premises of ASY Pension House as stated by the cashier of the said pension the Honorable Special Fourth Division of the Court of Appeals, I immediately
house. Later in the afternoon, the student instructed to purchase the ticket directed the Investigation Division of this Group [CIDG] to conduct urgent
arrived at the pension house and waited for Engr. Tagitis, but the latter did investigation on the alleged enforced disappearance of Engineer Morced
not return. On its part, the elements of 9RCIDU is now conducting a Tagitis.
continuous case build up and information gathering to locate the whereabouts
of Engr. Tagitis.

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


Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
c) That the Director, CIDG directed the conduct of the search in all Zamboanga City together with Prof. Abdulnasser Matli. On October 30,
divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or 2007, at around six oclock in the morning he arrived at Jolo, Sulu. He was
illegally detained by covert CIDG-PNP Intelligence Operatives since October assisted by his student identified as Arsimin Kunnong of the Islamic
30, 2007, but after diligent and thorough search, records show that no such Development Bank who was also one of the participants of the said seminar.
person is being detained in CIDG or any of its department or divisions. He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu
on October 30, 2007 with [sic] unidentified companion. At around six oclock
in the morning of even date, Engr. Tagitis instructed his student to purchase
a fast craft ticket for Zamboanga City. In the afternoon of the same date,
5. On this particular case, the Philippine National Police exhausted all Kunnong arrived at the pension house carrying the ticket he purchased for
possible efforts, steps and actions available under the circumstances and Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong
continuously search and investigate [sic] the instant case. This immense immediately informed Prof. Abdulnasser Matli who reported the incident to
mandate, however, necessitates the indispensable role of the citizenry, as the the police. The CIDG is not involved in the disappearance of Engr. Morced
PNP cannot stand alone without the cooperation of the victims and witnesses Tagitis to make out a case of an enforced disappearance which presupposes
to identify the perpetrators to bring them before the bar of justice and secure a direct or indirect involvement of the government.
their conviction in court.

That herein [petitioner] searched all divisions and departments for a person
named Engr. Morced N. Tagitis, who was allegedly abducted or illegally
detained by covert CIDG-PNP Intelligence Operatives since October 30,
2007 and after a diligent and thorough research records show that no such
person is being detained in CIDG or any of its department or divisions.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as
well his affidavit, also attached to the Return of the Writ, attesting that upon
receipt of the Writ of Amparo, he caused the following:[14]
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
xxxx undertaken immediate investigation and will pursue investigations up to its
full completion in order to aid in the prosecution of the person or persons
responsible therefore.

37
the cause, manner, location and time of disappearance as well as any pattern
or practice that may have brought about the disappearance.

Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS


Supt. Leonardo A. Espinas affidavit which alleged that:[16]
That I further directed the chief of PACER-MOR, Police Superintendent
JOSE ARNALDO BRIONES JR., to submit a written report regarding the
disappearance of ENGR. MORCED.
xxxx

That in compliance with my directive, the chief of PACER-MOR sent


That, I and our men and women in PACER vehemently deny any through fax his written report.
participation in the alleged abduction or illegally [sic] detention of ENGR.
MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in
the writ was mentioned that the alleged abduction was perpetrated by
elements of PACER nor was there any indication that the alleged abduction That the investigation and measures being undertaken to locate/search the
or illegal detention of ENGR. TAGITIS was undertaken jointly by our men subject in coordination with Police Regional Office, Autonomous Region of
and by the alleged covert CIDG-PNP intelligence operatives alleged to have Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO)
abducted or illegally detained ENGR. TAGITIS. and other AFP and PNP units/agencies in the area are ongoing with the
instruction not to leave any stone unturned so to speak in the investigation
until the perpetrators in the instant case are brought to the bar of justice.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or That I have exercised EXTRAORDINARY DILIGENCE in dealing with the
eradicating kidnap-for-ransom groups which until now continue to be one of WRIT OF AMPARO just issued.
the menace of our society is a respondent in kidnapping or illegal detention
case. Simply put, our task is to go after kidnappers and charge them in court
and to abduct or illegally detain or kidnap anyone is anathema to our mission.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao
That right after I learned of the receipt of the WRIT OF AMPARO, I directed (Gen. Goltiao), also submitted his affidavit detailing the actions that he had
the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro- taken upon receipt of the report on Tagitis disappearance, viz:[17]
active measures to investigate, locate/search the subject, identify and
apprehend the persons responsible, to recover and preserve evidence related
to the disappearance of ENGR. MORCED TAGITIS, which may aid in the xxxx
prosecution of the person or persons responsible, to identify witnesses and
obtain statements from them concerning the disappearance and to determine

38
at the Office of Weezam Express, however, when the student returned back
3) For the record: to ASY Pension House, he no longer found Engr. Tagitis there and when he
immediately inquired at the information counter regarding his whereabouts
[sic], the person in charge in the counter informed him that Engr. Tagitis had
left the premises on October 30, 2007 around 1 oclock p.m. and never
1. I am the Regional Director of Police Regional Office ARMM returned back to his room;
now and during the time of the incident;

8. Immediately after learning the incident, I called and directed the Provincial
xxxx Director of Sulu Police Provincial Office and other units through phone call
and text messages to conduct investigation [sic] to determine the whereabouts
of the aggrieved party and the person or persons responsible for the threat,
act or omission, to recover and preserve evidence related to the disappearance
4. It is my duty to look into and take appropriate measures on any cases of of Engr. Tagitis, to identify witnesses and obtain statements from them
reported enforced disappearances and when they are being alluded to my concerning his disappearance, to determine the cause and manner of his
office; disappearance, to identify and apprehend the person or persons involved in
the disappearance so that they shall be brought before a competent court;

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


Office reported to me through Radio Message Cite No. SPNP3-1105-07-2007 9. Thereafter, through my Chief of the Regional Investigation and Detection
that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, Management Division, I have caused the following directives:
an employee of Islamic Development Bank, appeared before the Office of the
Chief of Police, Jolo Police Station, and reported the disappearance of Engr.
Morced Tagitis, scholarship coordinator of Islamic Development Bank,
Manila; a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22,
2007 directing PD Sulu PPO to conduct joint investigation with CIDG and
CIDU ARMM on the matter;

6. There was no report that Engr. Tagibis was last seen in the company of or
taken by any member of the Philippine National Police but rather he just
disappeared from ASY Pension House situated at Kakuyagan Village, b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28,
Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible 2007 directing PD Sulu PPO to expedite compliance to my previous directive;
abduction or arrest;

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


7. The last known instance of communication with him was when Arsimin reiterating our series of directives for investigation and directing him to
Kunnong, a student scholar, was requested by him to purchase a vessel ticket undertake exhaustive coordination efforts with the owner of ASY Pension

39
House and student scholars of IDB in order to secure corroborative statements b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office
regarding the disappearance and whereabouts of said personality; that they are still monitoring the whereabouts of Engr. Tagitis;

d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO c) Investigation Report dated December 31, 2007 from the Chief of Police,
directing him to maximize efforts to establish clues on the whereabouts of Jolo Police Station, Sulu PPO;
Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit
for polygraph examination with the NBI so as to expunge all clouds of doubt
that they may somehow have knowledge or idea to his disappearance; 11. This incident was properly reported to the PNP Higher Headquarters as
shown in the following:

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


Chief, Criminal Investigation and Detection Group, Police Regional Office a) Memorandum dated November 6, 2007 addressed to the Chief, PNP
9, Zamboanga City, requesting assistance to investigate the cause and informing him of the facts of the disappearance and the action being taken by
unknown disappearance of Engr. Tagitis considering that it is within their our office;
area of operational jurisdiction;

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


f) Memorandum from Chief, Intelligence Division, PRO ARMM dated Directorate for Investigation and Detection Management, NHQ PNP;
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;

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


DIDM;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts
to conduct investigation [sic] on the matter to determine the whereabouts of
Engr. Tagitis and the circumstances related to his disappearance and
submitted the following: 4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot
be determined but our office is continuously intensifying the conduct of
information gathering, monitoring and coordination for the immediate
solution of the case.
a) Progress Report dated November 6, 2007 through Radio Message Cite
No. SPNP3-1106-10-2007;

40
Since the disappearance of Tagistis was practically admitted and taking note
of favorable actions so far taken on the disappearance, the CA directed Gen. In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged
Goltiao as the officer in command of the area of disappearance to form TASK to be responsible, he personally went to the CIDG office in Zamboanga City
FORCE TAGITIS.[18] to conduct an ocular inspection/investigation, particularly of their detention
cells.[24] PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently denied any
knowledge or complicity in any abduction.[25] He further testified that prior
Task Force Tagitis to the hearing, he had already mobilized and given specific instructions to
their supporting units to perform their respective tasks; that they even talked
to, but failed to get any lead from the respondent in Jolo.[26] In his submitted
investigation report dated January 16, 2008, PS Supt. Ajirim concluded:[27]
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS
Supt. Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently
set three hearings to monitor whether TASK FORCE TAGITIS was exerting
extraordinary efforts in handling the disappearance of Tagitis.[20] As 9. Gleaned from the undersigned inspection and observation at the
planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga Headquarters 9 RCIDU and the documents at hand, it is my own initial
City; (2) the second hearing would be to mobilize intelligence with Abu conclusion that the 9RCIDU and other PNP units in the area had no
Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief participation neither [sic] something to do with [sic] mysterious
of Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt
police operatives.[21] has been raised regarding the emolument on the Islamic Development Bank
Scholar program of IDB that was reportedly deposited in the personal account
of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to Arabia. Secondly, it could might [sic] be done by resentment or sour grape
the CA an intelligence report from PSL Usman S. Pingay, the Chief of Police among students who are applying for the scholar [sic] and were denied which
of the Jolo Police Station, stating a possible motive for Tagitis was allegedly conducted/screened by the subject being the coordinator of said
disappearance.[22] The intelligence report was apparently based on the sworn program.
affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof.
Matli), Professor of Islamic Studies at the University of the Philippines and
an Honorary Student Counselor of the IDB Scholarship Program in the
Philippines, who told the Provincial Governor of Sulu that:[23] 20. It is also premature to conclude but it does or it may and [sic] presumed
that the motive behind the disappearance of the subject might be due to the
funds he maliciously spent for his personal interest and wanted to elude
responsibilities from the institution where he belong as well as to the Islamic
[Based] on reliable information from the Office of Muslim Affairs in Manila, student scholars should the statement of Prof. Matli be true or there might be
Tagitis has reportedly taken and carried away more or less Five Million Pesos a professional jealousy among them.
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by
the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was]
intended for the IDB Scholarship Fund.
xxxx

41
(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM
It is recommended that the Writ of Amparo filed against the respondents be informed this Court that P/Supt KASIM was designated as Col. Ahirom
dropped and dismissed considering on [sic] the police and military actions in Ajirims replacement in the latters official designated post. Yet, P/Supt
the area particularly the CIDG are exerting their efforts and religiously doing KASIMs subpoena was returned to this Court unserved. Since this Court was
their tasked [sic] in the conduct of its intelligence monitoring and made to understand that it was P/Supt KASIM who was the petitioners
investigation for the early resolution of this instant case. But rest assured, our unofficial source of the military intelligence information that Engr. Morced
office, in coordination with other law-enforcement agencies in the area, are Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition),
continuously and religiously conducting our investigation for the resolution the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK
of this case. FORCE TAGITIS should have ensured the appearance of Col. KASIM in
response to this courts subpoena and COL. KASIM could have confirmed the
military intelligence information that bad elements of the CIDG had abducted
Engr. Morced Tagitis.
On February 4, 2008, the CA issued an ALARM WARNING that TASK
FORCE TAGITIS did not appear to be exerting extraordinary efforts in
resolving Tagitis disappearance on the following grounds:[28]

(1) This Court FOUND that it was only as late as January 28, 2008,
after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM Testimonies for the Respondent
had requested for clear photographs when it should have been standard
operating procedure in kidnappings or disappearances that the first agenda
was for the police to secure clear pictures of the missing person, Engr. On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
Morced Tagitis, for dissemination to all parts of the country and to examination that she went to Jolo and Zamboanga in her efforts to locate her
neighboring countries. It had been three (3) months since GEN. JOEL husband. She said that a friend from Zamboanga holding a high position in
GOLTIAO admitted having been informed on November 5, 2007 of the the military (whom she did not then identify) gave her information that
alleged abduction of Engr. Morced Tagitis by alleged bad elements of the allowed her to specify her allegations, particularly paragraph 15 of the
CIDG. It had been more than one (1) month since the Writ of Amparo had petition.[29] This friend also told her that her husband [was] in good
been issued on December 28, 2007. It had been three (3) weeks when battle hands.[30] The respondent also testified that she sought the assistance of her
formation was ordered through Task Force Tagitis, on January 17, 2008. It former boss in Davao City, Land Bank Bajada Branch Manager Rudy
was only on January 28, 2008 when the Task Force Tagitis requested for clear Salvador, who told her that PNP CIDG is holding [her husband], Engineer
and recent photographs of the missing person, Engr. Morced Tagitis, despite Morced Tagitis.[31] The respondent recounted that she went to Camp
the Task Force Tagitis claim that they already had an all points bulletin, since Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col.
November 5, 2007, on the missing person, Engr. Morced Tagitis. How could Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with
the police look for someone who disappeared if no clear photograph had been her) a highly confidential report that contained the alleged activities of
disseminated? Engineer Tagitis and informed her that her husband was abducted because he
is under custodial investigation for being a liaison for J.I. or Jemaah
Islamiah.[32]

42
and Col. Kasim of the PNP. In her narrative report concerning her meeting
On January 17, 2008, the respondent on cross-examination testified that she with Col. Ancanan, the respondent recounted, viz:[40]
is Tagitis second wife, and they have been married for thirteen years; Tagitis
was divorced from his first wife.[33] She last communicated with her
husband on October 29, 2007 at around 7:31 p.m. through text messaging; On November 11, 2007, we went to Zamboanga City with my friend Mrs.
Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.[34] Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning;
we arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched
by the two staffs of Col. Ancanan. We immediately proceed [sic] to West
Mindanao Command (WESTMINCOM).
The respondent narrated that she learned of her husbands disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed
her that she had not heard from her father since the time they arranged to meet On that same day, we had private conversation with Col. Ancanan. He
in Manila on October 31, 2007.[35] The respondent explained that it took her interviewed me and got information about the personal background of Engr.
a few days (or on November 5, 2007) to personally ask Kunnong to report Morced N. Tagitis. After he gathered all information, he revealed to us the
her husbands disappearance to the Jolo Police Station, since she had the contents of text messages they got from the cellular phone of the subject Engr.
impression that her husband could not communicate with her because his Tagitis. One of the very important text messages of Engr. Tagitis sent to his
cellular phones battery did not have enough power, and that he would call her daughter Zaynah Tagitis was that she was not allowed to answer any
when he had fully-charged his cellular phones battery.[36] telephone calls in his condominium unit.

The respondent also identified the high-ranking military friend, who gave her While we were there he did not tell us any information of the whereabouts of
the information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as
Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga guests to the city. His two staffs accompanied us to the mall to purchase our
through her boss.[37] She also testified that she was with three other people, plane ticket going back to Davao City on November 12, 2007.
namely, Mrs. Marydel Martin Talbin and her two friends from Mati City,
Davao Oriental, when Col. Kasim read to them the contents of the highly
confidential report at Camp Katitipan, Davao City. The respondent further When we arrived in Davao City on November 12, 2007 at 9:00 in the
narrated that the report indicated that her husband met with people belonging morning, Col. Ancanan and I were discussing some points through phone
to a terrorist group and that he was under custodial investigation. She then calls. He assured me that my husband is alive and hes last looked [sic] in
told Col. Kasim that her husband was a diabetic taking maintenance Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the
medication, and asked that the Colonel relay to the persons holding him the whereabouts of my husband, because I contacted some of my friends who
need to give him his medication.[38] have access to the groups of MILF, MNLF and ASG. I called up Col.
Ancanan several times begging to tell me the exact location of my husband
and who held him but he refused.

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


reports,[39] signed by the respondent, detailing her efforts to locate her
husband which led to her meetings with Col. Ancanan of the Philippine Army While I was in Jolo, Sulu on November 30, 2007, I called him up again
because the PNP, Jolo did not give me any information of the whereabouts of

43
my husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan
ang kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit On November 24, 2007, we went back to Camp Katitipan with my three
for the reason that the Chief of Police of Jolo told me not to contact any AFP friends. That was the time that Col. Kasim read to us the confidential report
officials and he promised me that he can solve the case of my husband (Engr. that Engr. Tagitis was allegedly connected [with] different terrorist [groups],
Tagitis) within nine days. one of which he mentioned in the report was OMAR PATIK and a certain
SANTOS - a Balik Islam.

I appreciate the effort of Col. Ancanan on trying to solve the case of my It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
husband Engr. Morced Tagitis, yet failed to do so. terrorists as a supplier. These are the two information that I can still
remember. It was written in a long bond paper with PNP Letterhead. It was
not shown to us, yet Col. Kasim was the one who read it for us.

The respondent also narrated her encounter with Col. Kasim, as follows:[41] He asked a favor to me that Please dont quote my Name! Because this is a
raw report. He assured me that my husband is alive and he is in the custody
On November 7, 2007, I went to Land Bank of the Philippines, Bajada of the military for custodial investigation. I told him to please take care of my
Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband, husband because he has aliments and he recently took insulin for he is a
Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on diabetic patient.
October 30, 2007. I asked him a favor to contact his connections in the
military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr.
Salvador immediately called up Camp Katitipan located in Davao City
looking for high-ranking official who can help me gather reliable information In my petition for writ of amparo, I emphasized the information that I got
behind the abduction of subject Engineer Tagitis. from Kasim.

On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive (Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. husband, in relation particularly with the information she received from Col.
Salvador introduced me to Col. Kasim and we had a short conversation. And Kasim. Mrs. Talbin testified that she was with the respondent when she went
he assured me that hell do the best he can to help me find my husband. to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to
meet Col. Kasim.[42]

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


that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who
confidential information to reveal. told them that there was a report and that he showed them a series of text

44
messages from Tagitis cellular phone, which showed that Tagitis and his narrative report, specifically: (1) that Tagitis was seen carrying boxes of
daughter would meet in Manila on October 30, 2007.[43] medicines as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that your
husband is in good hands and is probably taken cared of by his armed
abductors; and (3) that Tagitis was under custodial investigation by the
She further narrated that sometime on November 24, 2007, she went with the military, the PNP or the CIDG Zamboanga City.[58] Col. Kasim emphasized
respondent together with two other companions, namely, Salvacion Serrano that the informal letter he received from his informant in Sulu did not indicate
and Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent that Tagitis was in the custody of the CIDG.[59] He also stressed that the
asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim information he provided to the respondent was merely a raw report sourced
told them that Tagitis was in good hands, although he was not certain whether from barangay intelligence that still needed confirmation and follow-up as to
he was with the PNP or with the Armed Forces of the Philippines (AFP). She its veracity.[60]
further recounted that based on the report Col. Kasim read in their presence,
Tagitis was under custodial investigation because he was being charged with
terrorism; Tagitis in fact had been under surveillance since January 2007 up On cross-examination, Col. Kasim testified that the information he gave the
to the time he was abducted when he was seen talking to Omar Patik and a respondent was given to him by his informant, who was a civilian asset,
certain Santos of Bulacan, a Balik Islam charged with terrorism. Col. Kasim through a letter which he considered as unofficial.[61] Col. Kasim stressed
also told them that he could not give a copy of the report because it was a raw that the letter was only meant for his consumption and not for reading by
report.[45] She also related that the Col. Kasim did not tell them exactly others.[62] He testified further that he destroyed the letter right after he read
where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof., it to the respondent and her companions because it was not important to him
lalabas din yan.[50] Prof. Matli also emphasized that despite what his January and also because the information it contained had no importance in relation
4, 2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any with the abduction of Tagitis.[63] He explained that he did not keep the letter
accusation, that Tagitis took away money entrusted to him.[52] Prof. Matli because it did not contain any information regarding the whereabouts of
confirmed, however, that that he had received an e-mail report[53] from Tagitis and the person(s) responsible for his abduction.[64]
Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was
seeking assistance of the office in locating the funds of IDB scholars
deposited in Tagitis personal account.[54]
In the same hearing on February 11, 2008, the petitioners also presented
Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the
CIDG-9, to disprove the respondents allegation that Tagitis was in the
On cross-examination by the respondents counsel, Prof. Matli testified that custody of CIDG-Zamboanga City.[65] Col. Pante clarified that the CIDG
his January 4, 2008 affidavit was already prepared when PS Supt. Pingay was the investigative arm of the PNP, and that the CIDG investigates and
asked him to sign it.[55] Prof Matli clarified that although he read the prosecutes all cases involving violations in the Revised Penal Code
affidavit before signing it, he was not so much aware of [its] contents.[56] particularly those considered as heinous crimes.[66] Col. Pante further
testified that the allegation that 9 RCIDU personnel were involved in the
disappearance of Tagitis was baseless, since they did not conduct any
operation in Jolo, Sulu before or after Tagitis reported disappearance.[67]
On February 11, 2008, the petitioners presented Col. Kasim to rebut material Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had
portions of the respondents testimony, particularly the allegation that he had no capability to conduct any operation, since they were only assigned to
stated that Tagitis was in the custody of either the military or the PNP.[57] investigate matters and to monitor the terrorism situation.[68] He denied that
Col. Kasim categorically denied the statements made by the respondent in her his office conducted any surveillance on Tagitis prior to the latters

45
disappearance.[69] Col. Pante further testified that his investigation of Tagitis respondent, the police and the military noted that there was no
disappearance was unsuccessful; the investigation was still facing a blank acknowledgement of Tagitis abduction or demand for payment of ransom the
wall on the whereabouts of Tagitis.[70] usual modus operandi of these terrorist groups.

THE CA RULING Based on these considerations, the CA thus extended the privilege of the writ
to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane
Pante, PNP Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen.
On March 7, 2008, the CA issued its decision[71] confirming that the Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo
disappearance of Tagitis was an enforced disappearance under the United A. Espina to exert extraordinary diligence and efforts to protect the life,
Nations (UN) Declaration on the Protection of All Persons from Enforced liberty and security of Tagitis, with the obligation to provide monthly reports
Disappearances.[72] The CA ruled that when military intelligence pinpointed of their actions to the CA. At the same time, the CA dismissed the petition
the investigative arm of the PNP (CIDG) to be involved in the abduction, the against the then respondents from the military, Lt. Gen Alexander Yano and
missing-person case qualified as an enforced disappearance. The conclusion Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the
that the CIDG was involved was based on the respondents testimony, military, that was involved.
corroborated by her companion, Mrs. Talbin. The CA noted that the
information that the CIDG, as the police intelligence arm, was involved in
Tagitis abduction came from no less than the military an independent agency On March 31, 2008, the petitioners moved to reconsider the CA decision, but
of government. The CA thus greatly relied on the raw report from Col. the CA denied the motion in its Resolution of April 9, 2008.[73]
Kasims asset, pointing to the CIDGs involvement in Tagitis abduction. The
CA held that raw reports from an asset carried great weight in the intelligence
world. It also labeled as suspect Col. Kasims subsequent and belated
retraction of his statement that the military, the police, or the CIDG was THE PETITION
involved in the abduction of Tagitis.

In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the
petitioners mainly dispute the sufficiency in form and substance of the
The CA characterized as too farfetched and unbelievable and a bedlam of Amparo petition filed before the CA; the sufficiency of the legal remedies the
speculation police theories painting the disappearance as intentional on the respondent took before petitioning for the writ; the finding that the rights to
part of Tagitis. He had no previous brushes with the law or any record of life, liberty and security of Tagitis had been violated; the sufficiency of
overstepping the bounds of any trust regarding money entrusted to him; no evidence supporting the conclusion that Tagitis was abducted; the conclusion
student of the IDB scholarship program ever came forward to complain that that the CIDG Zamboanga was responsible for the abduction; and, generally,
he or she did not get his or her stipend. The CA also found no basis for the the ruling that the respondent discharged the burden of proving the allegations
police theory that Tagitis was trying to escape from the clutches of his second of the petition by substantial evidence.[74]
wife, on the basis of the respondents testimony that Tagitis was a Muslim
who could have many wives under the Muslim faith, and that there was no
issue at all when the latter divorced his first wife in order to marry the second.
Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or THE COURTS RULING
by the ARMM paramilitary as the cause for Tagitis disappearance, since the

46
A petition for the Writ of Amparo shall be signed and verified and shall
allege, among others (in terms of the portions the petitioners cite):[75]
We do not find the petition meritorious.

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

In questioning the sufficiency in form and substance of the respondents


Amparo petition, the petitioners contend that the petition violated Section
5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that (d) The investigation conducted, if any, specifying the names, personal
the respondent failed to: circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;

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


Tagitis rights to life, liberty and security; (e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
2) allege in a complete manner how Tagitis was abducted, the persons for the threat, act or omission; and
responsible for his disappearance, and the respondents source of information;

3) allege that the abduction was committed at the petitioners instructions or


with their consent;
The framers of the Amparo Rule never intended Section 5(c) to be complete
4) implead the members of CIDG regional office in Zamboanga alleged to in every detail in stating the threatened or actual violation of a victims rights.
have custody over her husband; As in any other initiatory pleading, the pleader must of course state the
ultimate facts constituting the cause of action, omitting the evidentiary
5) attach the affidavits of witnesses to support her accusations; details.[76] In an Amparo petition, however, this requirement must be read in
light of the nature and purpose of the proceeding, which addresses a situation
6) allege any action or inaction attributable to the petitioners in the of uncertainty; the petitioner may not be able to describe with certainty how
performance of their duties in the investigation of Tagitis disappearance; and the victim exactly disappeared, or who actually acted to kidnap, abduct or
arrest him or her, or where the victim is detained, because these information
7) specify what legally available efforts she took to determine the fate or may purposely be hidden or covered up by those who caused the
whereabouts of her husband. disappearance. In this type of situation, to require the level of specificity,
detail and precision that the petitioners apparently want to read into the
Amparo Rule is to make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.

47
If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing
To read the Rules of Court requirement on pleadings while addressing the to the summary nature of the proceedings for the writ and to facilitate the
unique Amparo situation, the test in reading the petition should be to resolution of the petition, the Amparo Rule incorporated the requirement for
determine whether it contains the details available to the petitioner under the supporting affidavits, with the annotation that these can be used as the affiants
circumstances, while presenting a cause of action showing a violation of the direct testimony.[78] This requirement, however, should not be read as an
victims rights to life, liberty and security through State or private party action. absolute one that necessarily leads to the dismissal of the petition if not
The petition should likewise be read in its totality, rather than in terms of its strictly followed. Where, as in this case, the petitioner has substantially
isolated component parts, to determine if the required elements namely, of complied with the requirement by submitting a verified petition sufficiently
the disappearance, the State or private action, and the actual or threatened detailing the facts relied upon, the strict need for the sworn statement that an
violations of the rights to life, liberty or security are present. affidavit represents is essentially fulfilled. We note that the failure to attach
the required affidavits was fully cured when the respondent and her witness
(Mrs. Talbin) personally testified in the CA hearings held on January 7 and
17 and February 18, 2008 to swear to and flesh out the allegations of the
In the present case, the petition amply recites in its paragraphs 4 to 11 the petition. Thus, even on this point, the petition cannot be faulted.
circumstances under which Tagitis suddenly dropped out of sight after
engaging in normal activities, and thereafter was nowhere to be found despite
efforts to locate him. The petition alleged, too, under its paragraph 7, in
relation to paragraphs 15 and 16, that according to reliable information, police Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
operatives were the perpetrators of the abduction. It also clearly alleged how disappearance must have been made, specifying the manner and results of the
Tagitis rights to life, liberty and security were violated when he was forcibly investigation. Effectively, this requirement seeks to establish at the earliest
taken and boarded on a motor vehicle by a couple of burly men believed to opportunity the level of diligence the public authorities undertook in relation
be police intelligence operatives, and then taken into custody by the with the reported disappearance.[79]
respondents police intelligence operatives since October 30, 2007,
specifically by the CIDG, PNP Zamboanga City, x x x held against his will We reject the petitioners argument that the respondents petition did not
in an earnest attempt of the police to involve and connect [him] with different comply with the Section 5(d) requirements of the Amparo Rule, as the
terrorist groups.[77] petition specifies in its paragraph 11 that Kunnong and his companions
immediately reported Tagitis disappearance to the police authorities in Jolo,
Sulu as soon as they were relatively certain that he indeed had disappeared.
The police, however, gave them the ready answer that Tagitis could have been
These allegations, in our view, properly pleaded ultimate facts within the abducted by the Abu Sayyaf group or other anti-government groups. The
pleaders knowledge about Tagitis disappearance, the participation by agents respondent also alleged in paragraphs 17 and 18 of her petition that she filed
of the State in this disappearance, the failure of the State to release Tagitis or a complaint with the PNP Police Station in Cotobato and in Jolo, but she was
to provide sufficient information about his whereabouts, as well as the actual told of an intriguing tale by the police that her husband was having a good
violation of his right to liberty. Thus, the petition cannot be faulted for any time with another woman. The disappearance was alleged to have been
failure in its statement of a cause of action. reported, too, to no less than the Governor of the ARMM, followed by the
respondents personal inquiries that yielded the factual bases for her
petition.[80]

48
xxxx
These allegations, to our mind, sufficiently specify that reports have been
made to the police authorities, and that investigations should have followed.
That the petition did not state the manner and results of the investigation that 7. Soon after the student left the room, Engr. Tagitis went out of the pension
the Amparo Rule requires, but rather generally stated the inaction of the house to take his early lunch but while out on the street, a couple of burly
police, their failure to perform their duty to investigate, or at the very least, men believed to be police intelligence operatives, forcibly took him and
their reported failed efforts, should not be a reflection on the completeness of boarded the latter on a motor vehicle then sped away without the knowledge
the petition. To require the respondent to elaborately specify the names, of his student, Arsimin Kunnong;
personal circumstances, and addresses of the investigating authority, as well
the manner and conduct of the investigation is an overly strict interpretation
of Section 5(d), given the respondents frustrations in securing an
investigation with meaningful results. Under these circumstances, we are xxxx
more than satisfied that the allegations of the petition on the investigations
undertaken are sufficiently complete for purposes of bringing the petition
forward.
10. When Kunnong could not locate Engr. Tagitis, the former sought the help
of another IDB scholar and reported the matter to the local police agency;

Section 5(e) is in the Amparo Rule to prevent the use of a petition that
otherwise is not supported by sufficient allegations to constitute a proper
cause of action as a means to fish for evidence.[81] The petitioners contend 11. Arsimin Kunnong, including his friends and companions in Jolo, exerted
that the respondents petition did not specify what legally available efforts efforts in trying to locate the whereabouts of Engr. Tagitis and when he
were taken by the respondent, and that there was an undue haste in the filing reported the matter to the police authorities in Jolo, he was immediately given
of the petition when, instead of cooperating with authorities, the respondent a ready answer that Engr. Tagitis could [have been] abducted by the Abu
immediately invoked the Courts intervention. Sayyaf group and other groups known to be fighting against the government;

We do not see the respondents petition as the petitioners view it. 12. Being scared with these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent](wife of Engr.
Tagitis) by phone and other responsible officers and coordinators of the IDB
Scholarship Programme in the Philippines who alerted the office of the
Section 5(e) merely requires that the Amparo petitioner (the respondent in the Governor of ARMM who was then preparing to attend the OIC meeting in
present case) allege the actions and recourses taken to determine the fate or Jeddah, Saudi Arabia;
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission. The following allegations of the respondents
petition duly outlined the actions she had taken and the frustrations she
encountered, thus compelling her to file her petition. 13. [The respondent], on the other hand, approached some of her co-
employees with the Land Bank in Digos branch, Digos City, Davao del Sur,

49
who likewise sought help from some of their friends in the military who could
help them find/locate the whereabouts of her husband;
25. [The respondent] has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, [respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
xxxx Morced Tagitis from the illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of the subjects human and
15. According to reliable information received by the [respondent], subject constitutional rights, except the issuance of a WRIT OF AMPARO.
Engr. Tagitis is in the custody of police intelligence operatives, specifically
with the CIDG, PNP Zamboanga City, being held against his will in an
earnest attempt of the police to involve and connect Engr. Tagitis with the
different terrorist groups; Based on these considerations, we rule that the respondents petition for the
Writ of Amparo is sufficient in form and substance and that the Court of
Appeals had every reason to proceed with its consideration of the case.

xxxx

17. [The respondent] filed her complaint with the PNP Police Station at the
ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their
help to find her husband, but [the respondents] request and pleadings failed
to produce any positive results The Desaparecidos

xxxx
The present case is one of first impression in the use and application of the
20. Lately, [respondent] was again advised by one of the [petitioners] to go Rule on the Writ of Amparo in an enforced disappearance situation. For a
to the ARMM Police Headquarters again in Cotobato City and also to the deeper appreciation of the application of this Rule to an enforced
different Police Headquarters including the police headquarters in Davao disappearance situation, a brief look at the historical context of the writ and
City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all enforced disappearances would be very helpful.
these places have been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and relatives
only to try complying to the different suggestions of these police officers, The phenomenon of enforced disappearance arising from State action first
despite of which, her efforts produced no positive results up to the present attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog
time; Decree of December 7, 1941.[82] The Third Reichs Night and Fog Program,
a State policy, was directed at persons in occupied territories endangering
German security; they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired intimidating
xxxx

50
effect, the policy prohibited government officials from providing information In the Philippines, enforced disappearances generally fall within the first two
about the fate of these targeted persons.[83] categories,[89] and 855 cases were recorded during the period of martial law
from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced
alive and 127 were found dead. During former President Corazon C. Aquinos
term, 820 people were reported to have disappeared and of these, 612 cases
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, were documented. Of this number, 407 remain missing, 108 surfaced alive
shocking and outraging the world when individuals, numbering anywhere and 97 were found dead. The number of enforced disappearances dropped
from 6,000 to 24,000, were reported to have disappeared during the military during former President Fidel V. Ramos term when only 87 cases were
regime in Argentina. Enforced disappearances spread in Latin America, and reported, while the three-year term of former President Joseph E. Estrada
the issue became an international concern when the world noted its yielded 58 reported cases. KARAPATAN, a local non-governmental
widespread and systematic use by State security forces in that continent under organization, reports that as of March 31, 2008, the records show that there
Operation Condor[84] and during the Dirty War[85] in the 1970s and 1980s. were a total of 193 victims of enforced disappearance under incumbent
The escalation of the practice saw political activists secretly arrested, President Gloria M. Arroyos administration. The Commission on Human
tortured, and killed as part of governments counter-insurgency campaigns. Rights records show a total of 636 verified cases of enforced disappearances
As this form of political brutality became routine elsewhere in the continent, from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive,
the Latin American media standardized the term disappearance to describe 62 were found dead, and 76 still have undetermined status.[90] Currently, the
the phenomenon. The victims of enforced disappearances were called the United Nations Working Group on Enforced or Involuntary
desaparecidos,[86] which literally means the disappeared ones.[87] In Disappearance[91] reports 619 outstanding cases of enforced or involuntary
general, there are three different kinds of disappearance cases: disappearances covering the period December 1, 2007 to November 30,
2008.[92]

1) those of people arrested without witnesses or without positive


identification of the arresting agents and are never found again; Enforced Disappearances

Under Philippine Law

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


warrant and held in complete isolation for weeks or months while their
families are unable to discover their whereabouts and the military authorities The Amparo Rule expressly provides that the writ shall cover extralegal
deny having them in custody until they eventually reappear in one detention killings and enforced disappearances or threats thereof.[93] We note that
center or another; and although the writ specifically covers enforced disappearances, this concept is
neither defined nor penalized in this jurisdiction. The records of the Supreme
Court Committee on the Revision of Rules (Committee) reveal that the
drafters of the Amparo Rule initially considered providing an elemental
3) those of victims of salvaging who have disappeared until their lifeless definition of the concept of enforced disappearance:[94]
bodies are later discovered.[88]

51
JUSTICE MARTINEZ: I believe that first and foremost we should come up corresponding penalty these criminal acts should carry are matters of
or formulate a specific definition [for] extrajudicial killings and enforced substantive law that only the Legislature has the power to enact under the
disappearances. From that definition, then we can proceed to formulate the countrys constitutional scheme and power structure.
rules, definite rules concerning the same.

CHIEF JUSTICE PUNO: As things stand, there is no law penalizing Even without the benefit of directly applicable substantive laws on extra-
extrajudicial killings and enforced disappearances so initially also we have to judicial killings and enforced disappearances, however, the Supreme Court is
[come up with] the nature of these extrajudicial killings and enforced not powerless to act under its own constitutional mandate to promulgate rules
disappearances [to be covered by the Rule] because our concept of killings concerning the protection and enforcement of constitutional rights, pleading,
and disappearances will define the jurisdiction of the courts. So well have to practice and procedure in all courts,[100] since extrajudicial killings and
agree among ourselves about the nature of killings and disappearances for enforced disappearances, by their nature and purpose, constitute State or
instance, in other jurisdictions, the rules only cover state actors. That is an private party violation of the constitutional rights of individuals to life, liberty
element incorporated in their concept of extrajudicial killings and enforced and security. Although the Courts power is strictly procedural and as such
disappearances. In other jurisdictions, the concept includes acts and does not diminish, increase or modify substantive rights, the legal protection
omissions not only of state actors but also of non state actors. Well, more that the Court can provide can be very meaningful through the procedures it
specifically in the case of the Philippines for instance, should these rules sets in addressing extrajudicial killings and enforced disappearances. The
include the killings, the disappearances which may be authored by let us say, Court, through its procedural rules, can set the procedural standards and
the NPAs or the leftist organizations and others. So, again we need to define thereby directly compel the public authorities to act on actual or threatened
the nature of the extrajudicial killings and enforced disappearances that will violations of constitutional rights. To state the obvious, judicial intervention
be covered by these rules. [Emphasis supplied] [95] can make a difference even if only procedurally in a situation when the very
same investigating public authorities may have had a hand in the threatened
or actual violations of constitutional rights.

In the end, the Committee took cognizance of several bills filed in the House
of Representatives[96] and in the Senate[97] on extrajudicial killings and
enforced disappearances, and resolved to do away with a clear textual Lest this Court intervention be misunderstood, we clarify once again that we
definition of these terms in the Rule. The Committee instead focused on the do not rule on any issue of criminal culpability for the extrajudicial killing or
nature and scope of the concerns within its power to address and provided the enforced disappearance. This is an issue that requires criminal action before
appropriate remedy therefor, mindful that an elemental definition may intrude our criminal courts based on our existing penal laws. Our intervention is in
into the ongoing legislative efforts.[98] determining whether an enforced disappearance has taken place and who is
responsible or accountable for this disappearance, and to define and impose
the appropriate remedies to address it. The burden for the public authorities
to discharge in these situations, under the Rule on the Writ of Amparo, is
As the law now stands, extra-judicial killings and enforced disappearances in twofold. The first is to ensure that all efforts at disclosure and investigation
this jurisdiction are not crimes penalized separately from the component are undertaken under pain of indirect contempt from this Court when
criminal acts undertaken to carry out these killings and enforced governmental efforts are less than what the individual situations require. The
disappearances and are now penalized under the Revised Penal Code and second is to address the disappearance, so that the life of the victim is
special laws.[99] The simple reason is that the Legislature has not spoken on preserved and his or her liberty and security restored. In these senses, our
the matter; the determination of what acts are criminal and what the orders and directives relative to the writ are continuing efforts that are not

52
truly terminated until the extrajudicial killing or enforced disappearance is In 1992, in response to the reality that the insidious practice of enforced
fully addressed by the complete determination of the fate and the whereabouts disappearance had become a global phenomenon, the UN General Assembly
of the victim, by the production of the disappeared person and the restoration adopted the Declaration on the Protection of All Persons from Enforced
of his or her liberty and security, and, in the proper case, by the Disappearance (Declaration).[104] This Declaration, for the first time,
commencement of criminal action against the guilty parties. provided in its third preambular clause a working description of enforced
disappearance, as follows:

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


Enforced Disappearance enforced disappearances occur, in the sense that persons are arrested,
detained or abducted against their will or otherwise deprived of their liberty
Under International Law by officials of different branches or levels of Government, or by organized
groups or private individuals acting on behalf of, or with the support, direct
or indirect, consent or acquiescence of the Government, followed by a refusal
to disclose the fate or whereabouts of the persons concerned or a refusal to
From the International Law perspective, involuntary or enforced acknowledge the deprivation of their liberty, which places such persons
disappearance is considered a flagrant violation of human rights.[101] It does outside the protection of the law. [Emphasis supplied]
not only violate the right to life, liberty and security of the desaparecido; it
affects their families as well through the denial of their right to information
regarding the circumstances of the disappeared family member. Thus,
enforced disappearances have been said to be a double form of torture, with
doubly paralyzing impact for the victims, as they are kept ignorant of their
own fates, while family members are deprived of knowing the whereabouts Fourteen years after (or on December 20, 2006), the UN General Assembly
of their detained loved ones and suffer as well the serious economic hardship adopted the International Convention for the Protection of All Persons from
and poverty that in most cases follow the disappearance of the household Enforced Disappearance (Convention).[105] The Convention was opened for
breadwinner.[102] signature in Paris, France on February 6, 2007.[106] Article 2 of the
Convention defined enforced disappearance as follows:

The UN General Assembly first considered the issue of Disappeared Persons


in December 1978 under Resolution 33/173. The Resolution expressed the For the purposes of this Convention, enforced disappearance is considered to
General Assemblys deep concern arising from reports from various parts of be the arrest, detention, abduction or any other form of deprivation of liberty
the world relating to enforced or involuntary disappearances, and requested by agents of the State or by persons or groups of persons acting with the
the UN Commission on Human Rights to consider the issue of enforced authorization, support or acquiescence of the State, followed by a refusal to
disappearances with a view to making appropriate recommendations.[103] acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside
the protection of the law. [Emphasis supplied]

53
without distinctions as to race, sex, language or religion.[112] Although no
The Convention is the first universal human rights instrument to assert that universal agreement has been reached on the precise extent of the human
there is a right not to be subject to enforced disappearance[107] and that this rights and fundamental freedoms guaranteed to all by the Charter,[113] it was
right is non-derogable.[108] It provides that no one shall be subjected to the UN itself that issued the Declaration on enforced disappearance, and this
enforced disappearance under any circumstances, be it a state of war, internal Declaration states:[114]
political instability, or any other public emergency. It obliges State Parties to
codify enforced disappearance as an offense punishable with appropriate
penalties under their criminal law.[109] It also recognizes the right of
relatives of the disappeared persons and of the society as a whole to know the Any act of enforced disappearance is an offence to dignity. It is condemned
truth on the fate and whereabouts of the disappeared and on the progress and as a denial of the purposes of the Charter of the United Nations and as a grave
results of the investigation.[110] Lastly, it classifies enforced disappearance and flagrant violation of human rights and fundamental freedoms proclaimed
as a continuing offense, such that statutes of limitations shall not apply until in the Universal Declaration of Human Rights and reaffirmed and developed
the fate and whereabouts of the victim are established.[111] in international instruments in this field. [Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter


made in a UN Declaration, the ban on enforced disappearance cannot but
Binding Effect of UN have its effects on the country, given our own adherence to generally accepted
principles of international law as part of the law of the land.[115]
Action on the Philippines

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


To date, the Philippines has neither signed nor ratified the Convention, so that Philippines v. Duque III,[116] we held that:
the country is not yet committed to enact any law penalizing enforced
disappearance as a crime. The absence of a specific penal law, however, is
not a stumbling block for action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation of the constitutional Under the 1987 Constitution, international law can become part of the sphere
rights to life, liberty and security that the Supreme Court is mandated by the of domestic law either by transformation or incorporation. The
Constitution to protect through its rule-making powers. transformation method requires that an international law be transformed into
a domestic law through a constitutional mechanism such as local legislation.
The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. [Emphasis
Separately from the Constitution (but still pursuant to its terms), the Court is supplied]
guided, in acting on Amparo cases, by the reality that the Philippines is a
member of the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on humans rights.
Under the UN Charter, the Philippines pledged to promote universal respect
for, and observance of, human rights and fundamental freedoms for all

54
We characterized generally accepted principles of international law as norms the States obligation to enact the crime of forced disappearance in their
of general or customary international law that are binding on all states. We respective national criminal laws and to establish jurisdiction over such cases
held further:[117] when the crime was committed within their jurisdiction, when the victim is a
national of that State, and when the alleged criminal is within its territory and
it does not proceed to extradite him, which can be interpreted as establishing
universal jurisdiction among the parties to the Inter-American
[G]enerally accepted principles of international law, by virtue of the Convention.[124] At present, Colombia, Guatemala, Paraguay, Peru and
incorporation clause of the Constitution, form part of the laws of the land Venezuela have enacted separate laws in accordance with the Inter-American
even if they do not derive from treaty obligations. The classical formulation Convention and have defined activities involving enforced disappearance to
in international law sees those customary rules accepted as binding result be criminal.[125]
from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known
as the opinion juris sive necessitates (opinion as to law or necessity). Implicit
in the latter element is a belief that the practice in question is rendered Second, in Europe, the European Convention on Human Rights has no
obligatory by the existence of a rule of law requiring it. [Emphasis in the explicit provision dealing with the protection against enforced disappearance.
original] The European Court of Human Rights (ECHR), however, has applied the
Convention in a way that provides ample protection for the underlying rights
affected by enforced disappearance through the Conventions Article 2 on the
right to life; Article 3 on the prohibition of torture; Article 5 on the right to
The most widely accepted statement of sources of international law today is liberty and security; Article 6, paragraph 1 on the right to a fair trial; and
Article 38(1) of the Statute of the International Court of Justice, which Article 13 on the right to an effective remedy. A leading example
provides that the Court shall apply international custom, as evidence of a demonstrating the protection afforded by the European Convention is Kurt v.
general practice accepted as law.[118] The material sources of custom Turkey,[126] where the ECHR found a violation of the right to liberty and
include State practice, State legislation, international and national judicial security of the disappeared person when the applicants son disappeared after
decisions, recitals in treaties and other international instruments, a pattern of being taken into custody by Turkish forces in the Kurdish village of Agilli in
treaties in the same form, the practice of international organs, and resolutions November 1993. It further found the applicant (the disappeared persons
relating to legal questions in the UN General Assembly.[119] Sometimes mother) to be a victim of a violation of Article 3, as a result of the silence of
referred to as evidence of international law,[120] these sources identify the the authorities and the inadequate character of the investigations undertaken.
substance and content of the obligations of States and are indicative of the The ECHR also saw the lack of any meaningful investigation by the State as
State practice and opinio juris requirements of international law.[121] We a violation of Article 13.[127]
note the following in these respects:

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


First, barely two years from the adoption of the Declaration, the Organization disappearance as part of customary international law is recognized in the most
of American States (OAS) General Assembly adopted the Inter-American recent edition of Restatement of the Law: The Third,[128] which provides
Convention on Enforced Disappearance of Persons in June 1994.[122] State that [a] State violates international law if, as a matter of State policy, it
parties undertook under this Convention not to practice, permit, or tolerate practices, encourages, or condones (3) the murder or causing the
the forced disappearance of persons, even in states of emergency or disappearance of individuals.[129] We significantly note that in a related
suspension of individual guarantees.[123] One of the key provisions includes matter that finds close identification with enforced disappearance the matter

55
of torture the United States Court of Appeals for the Second Circuit Court population, with knowledge of the attack. While more than 100 countries
held in Filartiga v. Pena-Irala[130] that the prohibition on torture had attained have ratified the Rome Statute,[133] the Philippines is still merely a signatory
the status of customary international law. The court further elaborated on the and has not yet ratified it. We note that Article 7(1) of the Rome Statute has
significance of UN declarations, as follows: been incorporated in the statutes of other international and hybrid tribunals,
including Sierra Leone Special Court, the Special Panels for Serious Crimes
in Timor-Leste, and the Extraordinary Chambers in the Courts of
Cambodia.[134] In addition, the implementing legislation of State Parties to
These U.N. declarations are significant because they specify with great the Rome Statute of the ICC has given rise to a number of national criminal
precision the obligations of member nations under the Charter. Since their provisions also covering enforced disappearance.[135]
adoption, "(m)embers can no longer contend that they do not know what
human rights they promised in the Charter to promote. Moreover, a U.N.
Declaration is, according to one authoritative definition, "a formal and
solemn instrument, suitable for rare occasions when principles of great and While the Philippines is not yet formally bound by the terms of the
lasting importance are being enunciated. Accordingly, it has been observed Convention on enforced disappearance (or by the specific terms of the Rome
that the Universal Declaration of Human Rights "no longer fits into the Statute) and has not formally declared enforced disappearance as a specific
dichotomy of binding treaty against non-binding pronouncement,' but is crime, the above recital shows that enforced disappearance as a State practice
rather an authoritative statement of the international community." Thus, a has been repudiated by the international community, so that the ban on it is
Declaration creates an expectation of adherence, and "insofar as the now a generally accepted principle of international law, which we should
expectation is gradually justified by State practice, a declaration may by consider a part of the law of the land, and which we should act upon to the
custom become recognized as laying down rules binding upon the States." extent already allowed under our laws and the international conventions that
Indeed, several commentators have concluded that the Universal Declaration bind us.
has become, in toto, a part of binding, customary international law. [Citations
omitted]
The following civil or political rights under the Universal Declaration of
Human Rights, the ICCPR and the International Convention on Economic,
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the Social and Cultural Rights (ICESR) may be infringed in the course of a
International Convention on Civil and Political Rights (ICCPR), to which the disappearance:[136]
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights,
has stated that the act of enforced disappearance violates Articles 6 (right to
life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or 1) the right to recognition as a person before the law;
punishment) and 9 (right to liberty and security of the person) of the ICCPR,
and the act may also amount to a crime against humanity.[131] 2) the right to liberty and security of the person;

3) the right not to be subjected to torture and other cruel, inhuman or


degrading treatment or punishment;
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances 4) the right to life, when the disappeared person is killed;
insofar as they are defined as crimes against humanity,[132] i.e., crimes
committed as part of a widespread or systematic attack against any civilian 5) the right to an identity;

56
obligation of the State to investigate ICCPR violations promptly, thoroughly,
6) the right to a fair trial and to judicial guarantees; and effectively, viz:[137]

7) the right to an effective remedy, including reparation and compensation;

8) the right to know the truth regarding the circumstances of a disappearance. 15. Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights, States Parties must ensure that individuals also have
9) the right to protection and assistance to the family; accessible and effective remedies to vindicate those rights The Committee
attaches importance to States Parties' establishing appropriate judicial and
10) the right to an adequate standard of living; administrative mechanisms for addressing claims of rights violations under
domestic law Administrative mechanisms are particularly required to give
11) the right to health; and effect to the general obligation to investigate allegations of violations
promptly, thoroughly and effectively through independent and impartial
12) the right to education [Emphasis supplied] bodies. A failure by a State Party to investigate allegations of violations could
in and of itself give rise to a separate breach of the Covenant. Cessation of an
ongoing violation is an essential element of the right to an effective remedy.
[Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:

Article 2

3. Each State Party to the present Covenant undertakes: The UN Human Rights Committee further stated in the same General
Comment No. 31 that failure to investigate as well as failure to bring to justice
(a) To ensure that any person whose rights or freedoms as herein recognized the perpetrators of ICCPR violations could in and of itself give rise to a
are violated shall have an effective remedy, notwithstanding that the violation separate breach of the Covenant, thus:[138]
has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative 18. Where the investigations referred to in paragraph 15 reveal violations of
authorities, or by any other competent authority provided for by the legal certain Covenant rights, States Parties must ensure that those responsible are
system of the State, and to develop the possibilities of judicial remedy; brought to justice. As with failure to investigate, failure to bring to justice
perpetrators of such violations could in and of itself give rise to a separate
(c) To ensure that the competent authorities shall enforce such remedies when breach of the Covenant. These obligations arise notably in respect of those
granted. [Emphasis supplied] violations recognized as criminal under either domestic or international law,
such as torture and similar cruel, inhuman and degrading treatment (article
7), summary and arbitrary killing (article 6) and enforced disappearance
(articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these
In General Comment No. 31, the UN Human Rights Committee opined that violations, a matter of sustained concern by the Committee, may well be an
the right to an effective remedy under Article 2 of the ICCPR includes the important contributing element in the recurrence of the violations. When
committed as part of a widespread or systematic attack on a civilian

57
population, these violations of the Covenant are crimes against humanity (see
Rome Statute of the International Criminal Court, article 7). [Emphasis
supplied] [A]ny deprivation of liberty must not only have been effected in conformity
with the substantive and procedural rules of national law but must equally be
in keeping with the very purpose of Article 5, namely to protect the individual
from arbitrariness... Having assumed control over that individual, it is
In Secretary of National Defense v. Manalo,[139] this Court, in ruling that incumbent on the authorities to account for his or her whereabouts. For this
the right to security of persons is a guarantee of the protection of ones right reason, Article 5 must be seen as requiring the authorities to take effective
by the government, held that: measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since. [Emphasis supplied]

The right to security of person in this third sense is a corollary of the policy
that the State guarantees full respect for human rights under Article II, Section
11 of the 1987 Constitution. As the government is the chief guarantor of order These rulings effectively serve as the backdrop for the Rule on the Writ of
and security, the Constitutional guarantee of the rights to life, liberty and Amparo, which the Court made effective on October 24, 2007. Although the
security of person is rendered ineffective if government does not afford Amparo Rule still has gaps waiting to be filled through substantive law, as
protection to these rights especially when they are under threat. Protection evidenced primarily by the lack of a concrete definition of enforced
includes conducting effective investigations, organization of the government disappearance, the materials cited above, among others, provide ample
apparatus to extend protection to victims of extralegal killings or enforced guidance and standards on how, through the medium of the Amparo Rule, the
disappearances (or threats thereof) and/or their families, and bringing Court can provide remedies and protect the constitutional rights to life, liberty
offenders to the bar of justice. The Inter-American Court of Human Rights and security that underlie every enforced disappearance.
stressed the importance of investigation in the Velasquez Rodriguez Case,
viz:

(The duty to investigate) must be undertaken in a serious manner and not as Evidentiary Difficulties Posed
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 by the Unique Nature of an
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 Enforced Disappearance
by the government. [Emphasis supplied]

Before going into the issue of whether the respondent has discharged the
Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted burden of proving the allegations of the petition for the Writ of Amparo by
the right to security not only as a prohibition on the State against arbitrary the degree of proof required by the Amparo Rule, we shall discuss briefly the
deprivation of liberty, but also as the imposition of a positive duty to afford unique evidentiary difficulties presented by enforced disappearance cases;
protection to the right to liberty. The Court notably quoted the following these difficulties form part of the setting that the implementation of the
ECHR ruling: Amparo Rule shall encounter.

58
to effectively thwart the start of any investigation or the progress of one that
may have begun.[145] The problem for the victims family is the States virtual
These difficulties largely arise because the State itself the party whose monopoly of access to pertinent evidence. The Inter-American Court of
involvement is alleged investigates enforced disappearances. Past Human Rights (IACHR) observed in the landmark case of Velasquez
experiences in other jurisdictions show that the evidentiary difficulties are Rodriguez[146] that inherent to the practice of enforced disappearance is the
generally threefold. deliberate use of the States power to destroy the pertinent evidence. The
IACHR described the concealment as a clear attempt by the State to commit
the perfect crime.[147]

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


perpetrators.[141] Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus: Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred.[148] Deniability is
central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
The victim is generally arrested by the security forces or by persons acting ensuring the victims human rights.[149] Experience shows that government
under some form of governmental authority. In many countries the units that officials typically respond to requests for information about desaparecidos by
plan, implement and execute the program are generally specialized, highly- saying that they are not aware of any disappearance, that the missing people
secret bodies within the armed or security forces. They are generally directed may have fled the country, or that their names have merely been
through a separate, clandestine chain of command, but they have the invented.[150]
necessary credentials to avoid or prevent any interference by the "legal"
police forces. These authorities take their victims to secret detention centers
where they subject them to interrogation and torture without fear of judicial
or other controls.[142] These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.

In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the Evidence and Burden of Proof in
disappearance out of fear for their own lives.[143] We have had occasion to
note this difficulty in Secretary of Defense v. Manalo[144] when we Enforced Disappearances Cases
acknowledged that where powerful military officers are implicated, the
hesitation of witnesses to surface and testify against them comes as no
surprise.
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo
proceeding and the degree and burden of proof the parties to the case carry,
as follows:
Second, deliberate concealment of pertinent evidence of the disappearance is
a distinct possibility; the central piece of evidence in an enforced Section 13. Summary Hearing. The hearing on the petition shall be summary.
disappearance i.e., the corpus delicti or the victims body is usually concealed However, the court, justice or judge may call for a preliminary conference to

59
simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.
Thus, in these proceedings, the Amparo petitioner needs only to properly
xxxx comply with the substance and form requirements of a Writ of Amparo
petition, as discussed above, and prove the allegations by substantial
Section 17. Burden of Proof and Standard of Diligence Required. The parties evidence. Once a rebuttable case has been proven, the respondents must then
shall establish their claims by substantial evidence. respond and prove their defenses based on the standard of diligence required.
The rebuttable case, of course, must show that an enforced disappearance
The respondent who is a private individual must prove that ordinary diligence took place under circumstances showing a violation of the victims
as required by applicable laws, rules and regulations was observed in the constitutional rights to life, liberty or security, and the failure on the part of
performance of duty. the investigating authorities to appropriately respond.

The respondent who is a public official or employee must prove that


extraordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty. The landmark case of Ang Tibay v. Court of Industrial Relations[151]
provided the Court its first opportunity to define the substantial evidence
The respondent public official or employee cannot invoke the presumption required to arrive at a valid decision in administrative proceedings. To
that official duty has been regularly performed or evade responsibility or directly quote Ang Tibay:
liability.

Section 18. Judgment. If the allegations in the petition are proven by


substantial evidence, the court shall grant the privilege of the writ and such Substantial evidence is more than a mere scintilla. It means such relevant
reliefs as may be proper and appropriate; otherwise, the privilege shall be evidence as a reasonable mind might accept as adequate to support a
denied. [Emphasis supplied] conclusion. [citations omitted] The statute provides that the rules of evidence
prevailing in courts of law and equity shall not be controlling. The obvious
purpose of this and similar provisions is to free administrative boards from
the compulsion of technical rules so that the mere admission of matter which
would be deemed incompetent in judicial proceedings would not invalidate
the administrative order. [citations omitted] But this assurance of a desirable
These characteristics namely, of being summary and the use of substantial flexibility in administrative procedure does not go so far as to justify orders
evidence as the required level of proof (in contrast to the usual preponderance without a basis in evidence having rational probative force. [Emphasis
of evidence or proof beyond reasonable doubt in court proceedings) reveal supplied]
the clear intent of the framers of the Amparo Rule to have the equivalent of
an administrative proceeding, albeit judicially conducted, in addressing
Amparo situations. The standard of diligence required the duty of public
officials and employees to observe extraordinary diligence point, too, to the
extraordinary measures expected in the protection of constitutional rights and
in the consequent handling and investigation of extra-judicial killings and In Secretary of Defense v. Manalo,[152] which was the Courts first petition
enforced disappearance cases. for a Writ of Amparo, we recognized that the full and exhaustive proceedings

60
that the substantial evidence standard regularly requires do not need to apply Circumstantial evidence, indicia, and presumptions may be considered, so
due to the summary nature of Amparo proceedings. We said: long as they lead to conclusions consistent with the facts.

131. Circumstantial or presumptive evidence is especially important in


allegations of disappearances, because this type of repression is characterized
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes by an attempt to suppress all information about the kidnapping or the
of a summary proceeding that requires only substantial evidence to make the whereabouts and fate of the victim. [Emphasis supplied]
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 In concluding that the disappearance of Manfredo Velsquez (Manfredo) was
responsibility requiring substantial evidence that will require full and carried out by agents who acted under cover of public authority, the IACHR
exhaustive proceedings. [Emphasis supplied] relied on circumstantial evidence including the hearsay testimony of Zenaida
Velsquez, the victims sister, who described Manfredos kidnapping on the
basis of conversations she had with witnesses who saw Manfredo kidnapped
Not to be forgotten in considering the evidentiary aspects of Amparo petitions by men in civilian clothes in broad daylight. She also told the Court that a
are the unique difficulties presented by the nature of enforced disappearances, former Honduran military official had announced that Manfredo was
heretofore discussed, which difficulties this Court must frontally meet if the kidnapped by a special military squadron acting under orders of the Chief of
Amparo Rule is to be given a chance to achieve its objectives. These the Armed Forces.[155] The IACHR likewise considered the hearsay
evidentiary difficulties compel the Court to adopt standards appropriate and testimony of a second witness who asserted that he had been told by a
responsive to the circumstances, without transgressing the due process Honduran military officer about the disappearance, and a third witness who
requirements that underlie every proceeding. testified that he had spoken in prison to a man who identified himself as
Manfredo.[156]

In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a


lack of direct evidence that the government of Honduras was involved in Velasquez stresses the lesson that flexibility is necessary under the unique
Velasquez Rodriguez disappearance adopted a relaxed and informal circumstances that enforced disappearance cases pose to the courts; to have
evidentiary standard, and established the rule that presumes governmental an effective remedy, the standard of evidence must be responsive to the
responsibility for a disappearance if it can be proven that the government evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the
carries out a general practice of enforced disappearances and the specific case admission and appreciation of evidence, as arbitrariness entails violation of
can be linked to that practice.[154] The IACHR took note of the realistic fact rights and cannot be used as an effective counter-measure; we only compound
that enforced disappearances could be proven only through circumstantial or the problem if a wrong is addressed by the commission of another wrong. On
indirect evidence or by logical inference; otherwise, it was impossible to the other hand, we cannot be very strict in our evidentiary rules and cannot
prove that an individual had been made to disappear. It held: consider evidence the way we do in the usual criminal and civil cases;
precisely, the proceedings before us are administrative in nature where, as a
rule, technical rules of evidence are not strictly observed. Thus, while we
must follow the substantial evidence rule, we must observe flexibility in
130. The practice of international and domestic courts shows that direct considering the evidence we shall take into account.
evidence, whether testimonial or documentary, is not the only type of
evidence that may be legitimately considered in reaching a decision.

61
acquiescence of the State, followed by a refusal to acknowledge the
The fair and proper rule, to our mind, is to consider all the pieces of evidence deprivation of liberty or by concealment of the fate or whereabouts of the
adduced in their totality, and to consider any evidence otherwise inadmissible disappeared person, which place such a person outside the protection of the
under our usual rules to be admissible if it is consistent with the admissible law.[159] Under this definition, the elements that constitute enforced
evidence adduced. In other words, we reduce our rules to the most basic test disappearance are essentially fourfold:[160]
of reason i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
(a) arrest, detention, abduction or any form of deprivation of liberty;

We note in this regard that the use of flexibility in the consideration of


evidence is not at all novel in the Philippine legal system. In child abuse cases, (b) carried out by agents of the State or persons or groups of persons acting
Section 28 of the Rule on Examination of a Child Witness[157] is expressly with the authorization, support or acquiescence of the State;
recognized as an exception to the hearsay rule. This Rule allows the
admission of the hearsay testimony of a child describing any act or attempted
act of sexual abuse in any criminal or non-criminal proceeding, subject to (c) followed by a refusal to acknowledge the detention, or a concealment of
certain prerequisites and the right of cross-examination by the adverse party. the fate of the disappeared person; and
The admission of the statement is determined by the court in light of specified
subjective and objective considerations that provide sufficient indicia of
reliability of the child witness.[158] These requisites for admission find their
counterpart in the present case under the above-described conditions for the (d) placement of the disappeared person outside the protection of the law.
exercise of flexibility in the consideration of evidence, including hearsay [Emphasis supplied]
evidence, in extrajudicial killings and enforced disappearance cases.

We find no direct evidence indicating how the victim actually disappeared.


Assessment of the Evidence The direct evidence at hand only shows that Tagitis went out of the ASY
Pension House after depositing his room key with the hotel desk and was
never seen nor heard of again. The undisputed conclusion, however, from all
concerned the petitioner, Tagitis colleagues and even the police authorities is
The threshold question for our resolution is: was there an enforced that Tagistis disappeared under mysterious circumstances and was never seen
disappearance within the meaning of this term under the UN Declaration we again. The respondent injected the causal element in her petition and
have cited? testimony, as we shall discuss below.

The Convention defines enforced disappearance as the arrest, detention, We likewise find no direct evidence showing that operatives of PNP CIDG
abduction or any other form of deprivation of liberty by agents of the State or Zamboanga abducted or arrested Tagitis. If at all, only the respondents
by persons or groups of persons acting with the authorization, support or

62
allegation that Tagistis was under CIDG Zamboanga custody stands on
record, but it is not supported by any other evidence, direct or circumstantial. A: Jemaah Islamiah, sir.

In her direct testimony, the respondent pointed to two sources of information Q: Was there any information that was read to you during one of those visits
as her bases for her allegation that Tagistis had been placed under government of yours in that Camp?
custody (in contrast with CIDG Zamboanga custody). The first was an
unnamed friend in Zamboanga (later identified as Col. Ancanan), who
occupied a high position in the military and who allegedly mentioned that
Tagitis was in good hands. Nothing came out of this claim, as both the A: Col. Casim did not furnish me a copy of his report because he said those
respondent herself and her witness, Mrs. Talbin, failed to establish that Col. reports are highly confidential, sir.
Ancanan gave them any information that Tagitis was in government custody.
Col. Ancanan, for his part, admitted the meeting with the respondent but
denied giving her any information about the disappearance.
Q: Was it read to you then even though you were not furnished a copy?

The more specific and productive source of information was Col. Kasim,
whom the respondent, together with her witness Mrs. Talbin, met in Camp A: Yes, sir. In front of us, my friends.
Katitipan in Davao City. To quote the relevant portions of the respondents
testimony:

Q: And what was the content of that highly confidential report?

Q: Were you able to speak to other military officials regarding the


whereabouts of your husband particularly those in charge of any records or
investigation? A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

A: I went to Camp Katitipan in Davao City. Then one military officer, Col. She confirmed this testimony in her cross-examination:
Casim, told me that my husband is being abducted [sic] because he is under
custodial investigation because he is allegedly parang liason ng J.I., sir.

Q: You also mentioned that you went to Camp Katitipan in Davao City?

Q: What is J.I.?

A: Yes, maam.

63
A: There were three of us, maam.

Q: And a certain Col. Kasim told you that your husband was abducted and
under custodial investigation?
Q: Who were your companions?

A: Yes, maam.
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao
Oriental, maam.[162]

Q: And you mentioned that he showed you a report?


xxxx

A: Yes, maam. Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?

Q: Were you able to read the contents of that report?


A: May binasa kasi sya that my husband has a parang meeting with other
people na parang mga terorista na mga tao. Tapos at the end of the report is
[sic] under custodial investigation. So I told him Colonel, my husband is sick.
A: He did not furnish me a copy of those [sic] report because those [sic] were He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold
highly confidential. That is a military report, maam. sa asawa ko na bigyan siya ng gamot, maam.[163]

Q: But you were able to read the contents? xxxx

Q: You mentioned that you received information that Engineer Tagitis is


A: No. But he read it in front of us, my friends, maam. being held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to
verify that information?

Q: How many were you when you went to see Col. Kasim?

64
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Q: Were you able to talk, see some other officials at Camp Katitipan during
Enough na yun na effort ko because I know that they would deny it, that time?
maam.[164]
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

Q: Were you able to talk to him?


On February 11, 2008, the respondent presented Mrs. Talbin to corroborate
her testimony that her husband was abducted and held under custodial
investigation by the PNP-CIDG Zamboanga City, viz:
A: Yes, sir.

Q: You said that you went to Camp Katitipan in Davao City sometime
November 24, 2007, who was with you when you went there? Q: The four of you?

A: Mary Jean Tagitis, sir. A: Yes, sir.

Q: Only the two of you? Q: What information did you get from Col. Kasim during that time?

A: No. We have some other companions. We were four at that time, sir. A: The first time we met with [him] I asked him if he knew of the exact
location, if he can furnish us the location of Engr. Tagitis. And he was reading
this report. He told us that Engr. Tagitis is in good hands. He is with the
military, but he is not certain whether he is with the AFP or PNP. He has this
Q: Who were they? serious case. He was charged of terrorism because he was under surveillance
from January 2007 up to the time that he was abducted. He told us that he
was under custodial investigation. As Ive said earlier, he was seen under
surveillance from January. He was seen talking to Omar Patik, a certain
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir. Santos of Bulacan who is also a Balik Islam and charged with terrorism. He
was seen carrying boxes of medicines. Then we asked him how long will he
be in custodial investigation. He said until we can get some information. But
he also told us that he cannot give us that report because it was a raw report.
It was not official, sir.

65
A: We just left and as Ive mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial investigation,
Engineer Tagitis will be released. [Emphasis supplied][166]
Q: You said that he was reading a report, was that report in document form,
in a piece of paper or was it in the computer or what?

Col. Kasim never denied that he met with the respondent and her friends, and
that he provided them information based on the input of an unnamed asset.
A: As far as I can see it, sir, it is written in white bond paper. I dont know if He simply claimed in his testimony that the informal letter he received from
it was computerized but Im certain that it was typewritten. Im not sure if it his informant in Sulu did not indicate that Tagitis was in the custody of the
used computer, fax or what, sir. CIDG. He also stressed that the information he provided the respondent was
merely a raw report from barangay intelligence that still needed confirmation
and follow up as to its veracity.[167]

Q: When he was reading it to you, was he reading it line by line or he was


reading in a summary form?
To be sure, the respondents and Mrs. Talbins testimonies were far from
perfect, as the petitioners pointed out. The respondent mistakenly
characterized Col. Kasim as a military officer who told her that her husband
A: Sometimes he was glancing to the report and talking to us, sir.[165] is being abducted because he is under custodial investigation because he is
allegedly parang liason ng J.I. The petitioners also noted that Mrs. Talbins
testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis
is with the military, but he is not certain whether it is the PNP or AFP is not
xxxx worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who
would certainly know that the PNP is not part of the military.
Q: Were you informed as to the place where he was being kept during that
time?

Upon deeper consideration of these inconsistencies, however, what appears


clear to us is that the petitioners never really steadfastly disputed or presented
A: He did not tell us where he [Tagitis] was being kept. But he mentioned evidence to refute the credibility of the respondent and her witness, Mrs.
this Talipapao, Sulu, sir. Talbin. The inconsistencies the petitioners point out relate, more than
anything else, to details that should not affect the credibility of the respondent
and Mrs. Talbin; the inconsistencies are not on material points.[168] We note,
for example, that these witnesses are lay people in so far as military and police
Q: After that incident, what did you do if any? matters are concerned, and confusion between the police and the military is
not unusual. As a rule, minor inconsistencies such as these indicate
truthfulness rather than prevarication[169]and only tend to strengthen their
probative value, in contrast to testimonies from various witnesses dovetailing
on every detail; the latter cannot but generate suspicion that the material

66
circumstances they testified to were integral parts of a well thought of and
prefabricated story.[170]
To say that this piece of evidence is incompetent and inadmissible evidence
of what it substantively states is to acknowledge as the petitioners effectively
suggest that in the absence of any direct evidence, we should simply dismiss
Based on these considerations and the unique evidentiary situation in the petition. To our mind, an immediate dismissal for this reason is no
enforced disappearance cases, we hold it duly established that Col. Kasim different from a statement that the Amparo Rule despite its terms is
informed the respondent and her friends, based on the informants letter, that ineffective, as it cannot allow for the special evidentiary difficulties that are
Tagitis, reputedly a liaison for the JI and who had been under surveillance unavoidably present in Amparo situations, particularly in extrajudicial
since January 2007, was in good hands and under custodial investigation for killings and enforced disappearances. The Amparo Rule was not promulgated
complicity with the JI after he was seen talking to one Omar Patik and a with this intent or with the intent to make it a token gesture of concern for
certain Santos of Bulacan, a Balik Islam charged with terrorism. The constitutional rights. It was promulgated to provide effective and timely
respondents and Mrs. Talbins testimonies cannot simply be defeated by Col. remedies, using and profiting from local and international experiences in
Kasims plain denial and his claim that he had destroyed his informants letter, extrajudicial killings and enforced disappearances, as the situation may
the critical piece of evidence that supports or negates the parties conflicting require. Consequently, we have no choice but to meet the evidentiary
claims. Col. Kasims admitted destruction of this letter effectively, a difficulties inherent in enforced disappearances with the flexibility that these
suppression of this evidence raises the presumption that the letter, if difficulties demand.
produced, would be proof of what the respondent claimed.[171] For brevity,
we shall call the evidence of what Col. Kasim reported to the respondent to
be the Kasim evidence.
To give full meaning to our Constitution and the rights it protects, we hold
that, as in Velasquez, we should at least take a close look at the available
evidence to determine the correct import of every piece of evidence even of
Given this evidence, our next step is to decide whether we can accept this those usually considered inadmissible under the general rules of evidence
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis taking into account the surrounding circumstances and the test of reason that
was due to action with government participation, knowledge or consent and we can use as basic minimum admissibility requirement. In the present case,
that he was held for custodial investigation. We note in this regard that Col. we should at least determine whether the Kasim evidence before us is relevant
Kasim was never quoted to have said that the custodial investigation was by and meaningful to the disappearance of Tagistis and reasonably consistent
the CIDG Zamboanga. The Kasim evidence only implies government with other evidence in the case.
intervention through the use of the term custodial investigation, and does not
at all point to CIDG Zamboanga as Tagitis custodian.

The evidence about Tagitis personal circumstances surrounded him with an


air of mystery. He was reputedly a consultant of the World Bank and a Senior
Strictly speaking, we are faced here with a classic case of hearsay evidence Honorary Counselor for the IDB who attended a seminar in Zamboanga and
i.e., evidence whose probative value is not based on the personal knowledge thereafter proceded to Jolo for an overnight stay, indicated by his request to
of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on Kunnong for the purchase of a return ticket to Zamboanga the day after he
the knowledge of some other person not on the witness stand (the arrived in Jolo. Nothing in the records indicates the purpose of his overnight
informant).[172] sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the
Jolo police that Tagitis may have taken funds given to him in trust for IDB

67
scholars. Prof Matli later on stated that he never accused Tagitis of taking significant part of Col. Kasims story is that the abduction came after Tagitis
away money held in trust, although he confirmed that the IDB was seeking was seen talking with Omar Patik and a certain Santos of Bulacan, a Balik
assistance in locating funds of IDB scholars deposited in Tagitis personal Islam charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was
account. Other than these pieces of evidence, no other information exists in being held at Talipapao, Sulu. None of the police agencies participating in
the records relating to the personal circumstances of Tagitis. the investigation ever pursued these leads. Notably, TASK FORCE TAGITIS
to which this information was relayed did not appear to have lifted a finger
to pursue these aspects of the case.

The actual disappearance of Tagitis is as murky as his personal


circumstances. While the Amparo petition recited that he was taken away by
burly men believed to be police intelligence operatives, no evidence More denials were manifested in the Returns on the writ to the CA made by
whatsoever was introduced to support this allegation. Thus, the available the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the
direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007 directives he sent to the ARMM Regional Director and the Regional Chief of
the day he arrived in Jolo and was never seen again. the CIDG on Tagitis, and these reports merely reiterated the open-ended
initial report of the disappearance. The CIDG directed a search in all of its
divisions with negative results. These, to the PNP Chief, constituted the
exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo M.
The Kasim evidence assumes critical materiality given the dearth of direct Doromal, for his part, also reported negative results after searching all
evidence on the above aspects of the case, as it supplies the gaps that were divisions and departments [of the CIDG] for a person named Engr. Morced
never looked into and clarified by police investigation. It is the evidence, too, N. Tagitis . . . and after a diligent and thorough research, records show that
that colors a simple missing person report into an enforced disappearance no such person is being detained in the CIDG or any of its department or
case, as it injects the element of participation by agents of the State and thus divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO
brings into question how the State reacted to the disappearance. ARMM Regional Director PC Superintendent Joel R. Goltiao did no better
in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis.

Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the
police informed Kunnong that Tagitis could have been taken by the Abu The extent to which the police authorities acted was fully tested when the CA
Sayyaf or other groups fighting the government. No evidence was ever constituted TASK FORCE TAGITIS, with specific directives on what to do.
offered on whether there was active Jolo police investigation and how and The negative results reflected in the Returns on the writ were again replicated
why the Jolo police arrived at this conclusion. The respondents own inquiry during the three hearings the CA scheduled. Aside from the previously
in Jolo yielded the answer that he was not missing but was with another mentioned retraction that Prof. Matli made to correct his accusation that
woman somewhere. Again, no evidence exists that this explanation was Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his
arrived at based on an investigation. As already related above, the inquiry testimony that the CIDG consistently denied any knowledge or complicity in
with Col. Ancanan in Zamboanga yielded ambivalent results not useful for any abduction and said that there was no basis to conclude that the CIDG or
evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that any police unit had anything to do with the disappearance of Tagitis; he
yielded positive results. Col. Kasims story, however, confirmed only the fact likewise considered it premature to conclude that Tagitis simply ran away
of his custodial investigation (and, impliedly, his arrest or abduction), without with the money in his custody. As already noted above, the TASK FORCE
identifying his abductor/s or the party holding him in custody. The more notably did not pursue any investigation about the personal circumstances of

68
Tagitis, his background in relation to the IDB and the background and police authorities from the very beginning failed to come up to the
activities of this Bank itself, and the reported sighting of Tagistis with extraordinary diligence that the Amparo Rule requires.
terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to
have ever been made to look into the alleged IDB funds that Tagitis held in CONCLUSIONS AND THE AMPARO REMEDY
trust, or to tap any of the assets who are indispensable in investigations of this
nature. These omissions and negative results were aggravated by the CA Based on these considerations, we conclude that Col. Kasims disclosure,
findings that it was only as late as January 28, 2008 or three months after the made in an unguarded moment, unequivocally point to some government
disappearance that the police authorities requested for clear pictures of complicity in the disappearance. The consistent but unfounded denials and
Tagitis. Col. Kasim could not attend the trial because his subpoena was not the haphazard investigations cannot but point to this conclusion. For why
served, despite the fact that he was designated as Ajirims replacement in the would the government and its officials engage in their chorus of concealment
latters last post. Thus, Col. Kasim was not then questioned. No investigation if the intent had not been to deny what they already knew of the
even an internal one appeared to have been made to inquire into the identity disappearance? Would not an in-depth and thorough investigation that at least
of Col. Kasims asset and what he indeed wrote. credibly determined the fate of Tagitis be a feather in the governments cap
under the circumstances of the disappearance? From this perspective, the
We glean from all these pieces of evidence and developments a consistency evidence and developments, particularly the Kasim evidence, already
in the governments denial of any complicity in the disappearance of Tagitis, establish a concrete case of enforced disappearance that the Amparo Rule
disrupted only by the report made by Col. Kasim to the respondent at Camp covers. From the prism of the UN Declaration, heretofore cited and
Katitipan. Even Col. Kasim, however, eventually denied that he ever made quoted,[173] the evidence at hand and the developments in this case confirm
the disclosure that Tagitis was under custodial investigation for complicity in the fact of the enforced disappearance and government complicity, under a
terrorism. Another distinctive trait that runs through these developments is background of consistent and unfounded government denials and haphazard
the governments dismissive approach to the disappearance, starting from the handling. The disappearance as well effectively placed Tagitis outside the
initial response by the Jolo police to Kunnongs initial reports of the protection of the law a situation that will subsist unless this Court acts.
disappearance, to the responses made to the respondent when she herself
reported and inquired about her husbands disappearance, and even at TASK This kind of fact situation and the conclusion reached are not without
FORCE TAGITIS itself. precedent in international enforced disappearance rulings. While the facts are
not exactly the same, the facts of this case run very close to those of Timurtas
As the CA found through TASK FORCE TAGITIS, the investigation was at v. Turkey,[174] a case decided by ECHR. The European tribunal in that case
best haphazard since the authorities were looking for a man whose picture acted on the basis of the photocopy of a post-operation report in finding that
they initially did not even secure. The returns and reports made to the CA Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by
fared no better, as the CIDG efforts themselves were confined to searching agents (gendarmes) of the government of Turkey. The victim's father in this
for custodial records of Tagitis in their various departments and divisions. To case brought a claim against Turkey for numerous violations of the European
point out the obvious, if the abduction of Tagitis was a black operation Convention, including the right to life (Article 2) and the rights to liberty and
because it was unrecorded or officially unauthorized, no record of custody security of a person (Article 5). The applicant contended that on August 14,
would ever appear in the CIDG records; Tagitis, too, would not be detained 1993, gendarmes apprehended his son, Abdulvahap for being a leader of the
in the usual police or CIDG detention places. In sum, none of the reports on Kurdish Workers Party (PKK) in the Silopi region. The petition was filed in
record contains any meaningful results or details on the depth and extent of southeast Turkey nearly six and one half years after the apprehension.
the investigation made. To be sure, reports of top police officials indicating According to the father, gendarmes first detained Abdulvahap and then
the personnel and units they directed to investigate can never constitute transferred him to another detainment facility. Although there was no
exhaustive and meaningful investigation, or equal detailed investigative eyewitness evidence of the apprehension or subsequent detainment, the
reports of the activities undertaken to search for Tagitis. Indisputably, the applicant presented evidence corroborating his version of events, including a

69
photocopy of a post-operation report signed by the commander of gendarme periodically reporting the detailed results of its investigation to the CA for its
operations in Silopi, Turkey. The report included a description of consideration and action. On behalf of this Court, the CA shall pass upon: the
Abdulvahap's arrest and the result of a subsequent interrogation during need for the PNP and the PNP-CIDG to make disclosures of matters known
detention where he was accused of being a leader of the PKK in the Silopi to them as indicated in this Decision and as further CA hearings may indicate;
region. On this basis, Turkey was held responsible for Abdulvahaps enforced the petitioners submissions; the sufficiency of their investigative efforts; and
disappearance. submit to this Court a quarterly report containing its actions and
recommendations, copy furnished the petitioners and the respondent, with the
first report due at the end of the first quarter counted from the finality of this
Following the lead of this Turkish experience - adjusted to the Philippine Decision. The PNP and the PNP-CIDG shall have one (1) full year to
legal setting and the Amparo remedy this Court has established, as applied to undertake their investigation. The CA shall submit its full report for the
the unique facts and developments of this case we believe and so hold that consideration of this Court at the end of the 4th quarter counted from the
the government in general, through the PNP and the PNP-CIDG, and in finality of this Decision.
particular, the Chiefs of these organizations together with Col. Kasim, should
be held fully accountable for the enforced disappearance of Tagitis. WHEREFORE, premises considered, we DENY the petitioners petition for
review on certiorari for lack of merit, and AFFIRM the decision of the Court
The PNP and CIDG are accountable because Section 24 of Republic Act No. of Appeals dated March 7, 2008 under the following terms:
6975, otherwise known as the PNP Law,[175] specifies the PNP as the
governmental office with the mandate to investigate and prevent crimes,
effect the arrest of criminal offenders, bring offenders to justice and assist in
their prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of a. Recognition that the disappearance of Engineer Morced N. Tagitis
CIDG Region 9) testified, is the investigative arm of the PNP and is mandated is an enforced disappearance covered by the Rule on the Writ of Amparo;
to investigate and prosecute all cases involving violations of the Revised
Penal Code, particularly those considered as heinous crimes.[176] Under the b. Without any specific pronouncement on exact authorship and
PNP organizational structure, the PNP-CIDG is tasked to investigate all responsibility, declaring the government (through the PNP and the PNP-
major crimes involving violations of the Revised Penal Code and operates CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced
against organized crime groups, unless the President assigns the case disappearance of Engineer Morced N. Tagitis;
exclusively to the National Bureau of Investigation (NBI).[177] No
indication exists in this case showing that the President ever directly c. Confirmation of the validity of the Writ of Amparo the Court of
intervened by assigning the investigation of Tagitis disappearance Appeals issued;
exclusively to the NBI.
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material facts
Given their mandates, the PNP and PNP-CIDG officials and members were known to the government and to their offices regarding the disappearance of
the ones who were remiss in their duties when the government completely Engineer Morced N. Tagitis, and for the conduct of proper investigations
failed to exercise the extral'>To fully enforce the Amparo remedy, we refer using extraordinary diligence, with the obligation to show investigation
this case back to the CA for appropriate proceedings directed at the results acceptable to this Court;
monitoring of the PNP and the PNP-CIDG investigations and actions, and the
validation of their results through hearings the CA may deem appropriate to e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case
conduct. For purposes of these investigations, the PNP/PNP-CIDG shall and holding him accountable with the obligation to disclose information
initially present to the CA a plan of action for further investigation,

70
known to him and to his assets in relation with the enforced disappearance of
Engineer Morced N. Tagitis;

f. Referring this case back to the Court of Appeals for appropriate


proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and the
PNP-CIDG shall initially present to the Court of Appeals a plan of action for
further investigation, periodically reporting their results to the Court of
Appeals for consideration and action;

g. Requiring the Court of Appeals to submit to this Court a quarterly


report with its recommendations, copy furnished the incumbent PNP and
PNP-CIDG Chiefs as petitioners and the respondent, with the first report due
at the end of the first quarter counted from the finality of this Decision;

h. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigations; the Court of Appeals shall submit its full report
for the consideration of this Court at the end of the 4th quarter counted from
the finality of this Decision;

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

The dismissal of the Amparo petition with respect to General Alexander


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

71
Republic of the Philippines
x-----------------------------------------x
Supreme Court

Manila
EDITA T. BURGOS,
EN BANC
Petitioner,

- versus -
CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES;
EDITA T. BURGOS, GEN. HERMOGENES ESPERON, JR.; Commanding General of the
Philippine Army, LT. GEN. ALEXANDER YANO; and Chief of the
Petitioner, Philippine National Police, DIRECTOR GENERAL AVELINO RAZON,
JR.,

- versus - Respondents.

PRESIDENT GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES


ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN.
JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL G.R. No. 183711
CLEMENT, LT. COL. MELQUIADES FELICIANO, and DIRECTOR
GENERAL OSCAR CALDERON, On July 17, 2008, the Court of Appeals (CA) issued a decision[1] in the
consolidated petitions for the Issuance of the Writ of Habeas Corpus,[2] for
Respondents. Contempt[3] and for the Issuance of a Writ of Amparo[4] filed by petitioner
Edita T. Burgos on behalf of her son Jonas Joseph T. Burgos, who was
x-----------------------------------------x forcibly taken and abducted by a group of four men and by a woman from the
extension portion of Hapag Kainan Restaurant, located at the ground floor of
EDITA T. BURGOS, Ever Gotesco Mall, Commonwealth Avenue, Quezon City, on April 28, 2007.
This CA decision[5] dismissed the petitioners petition for the Issuance of the
Petitioner, Writ of Habeas Corpus; denied the petitioners motion to declare the
respondents in contempt; and partially granted the privilege of the Writ of
- versus - Amparo in favor of the petitioner.

PRESIDENT GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES The Antecedents


ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN.
JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, and LT. COL. The established facts, as found by the CA, are summarized below:[6]
NOEL CLEMENT,

Respondents.

72
The established facts show that at around one oclock in the afternoon of April
28, 2007, Jonas Joseph T. Burgos a farmer advocate and a member of Meanwhile, on January 17, 2007, Lt. Col. Melquiades Feliciano took
Kilusang Magbubukid sa Bulacan (a chapter of the militant peasant command of the 56th IB from Lt. Col. Clement. The actual turnover of
organization Kilusang Magbubukid ng Pilipinas) was forcibly taken and command took place at Camp Tecson where the 56th IB was retraining. At
abducted by a group of four (4) men and a woman from the extension portion the time Jonas was abducted on April 28, 2007, Lt. Col. Feliciano was the
of Hapag Kainan Restaurant, located at the ground floor of Ever Gotesco 56th IBs commanding officer. Earlier, on March 23, 2007, 2nd Lt. Dick A.
Mall, Commonwealth Avenue, Quezon City. On his way out of the restaurant, Abletes, a member of the 56th IB, was caught on video talking to two persons,
Jonas told the manager, Maam aktibista lang po ako! When a security guard a male and a female, at McDonalds Bocaue. In the video, he was seen handing
tried to intervene, after he noticed that the group was forcibly dragging a male a document to the two persons. On March 26, 2007, 2nd Lt. Abletes was
person out of the restaurant, he was told, Pare, pulis! The guard then backed arrested and charges were soon filed against him with the Judge Advocate
off but was able to see that Jonas was forced into the rear portion of a plain General for violations of Articles 82, 96 and 97 of the Articles of War.
maroon colored Toyota Revo with plate number TAB 194. The guard then
noted the plate number and reported the incident to his superiors as well as to
the police on duty in the said mall. Prior to Jonas abduction, Mudlongs 1991 Isuzu XLT vehicle remained
impounded at the 56th IBs Headquarters. In May 2007, right after Jonas
On April 30, 2007, the petitioner held a press conference and announced that abduction was made public, it was discovered that plate number TAB 194 of
her son Jonas was missing. That same day, the petitioner sought confirmation this 1991 Isuzu XLT vehicle was missing, and the engine and other spare
from the guard if the person abducted was her son Jonas. Upon subsequent parts were cannibalized.
police investigation and LTO verification, it was discovered that plate
number TAB 194 was registered to a 1991 Isuzu XLT vehicle owned by a On direct examination, the petitioner testified before the CA that the police
certain Mauro B. Mudlong. It was also later confirmed by employees of the was able to generate cartographic sketches of two (one male and one female)
Department of Environment and Natural Resources (DENR) that Mudlong of the abductors of Jonas based on its interview of eyewitnesses.[7] The
was arrested and his 1991 Isuzu XLT vehicle was seized on June 24, 2006 by petitioner narrated further that these cartographic sketches were identified by
Cpl. Castro Bugalan and Pfc. Jose Villea of the 56th Infantry Battalion (IB) State Prosecutor Emmanuel Velasco of the Department of Justice (DOJ); that
of the Philippine Army for transporting timber without permit. As agreed when she went to see State Prosecutor Velasco personally, he gave her five
upon by the DENR employees and officers of the 56th IB, the vehicle with names who were allegedly involved in the abduction of Jonas (namely T/Sgt.
the license plate no. TAB 194 was impounded in the 56th IB headquarters Jason Roxas, Cpl. Joana Francisco, M/Sgt. Aron Arroyo, and 1st Lt. Jaime
whose commanding officer at that time was Lt. Col. Noel Clement. Mendaros);[8] and that the information from State Prosecutor Velascos
sources corroborated the same information she received earlier from her own
sources.[9] The petitioner also testified that nothing came out of the
The established facts also show that Lt. Col. Clement and the soldiers of the information given by State Prosecutor Velasco because he was pulled out
56th IB went on retraining at the Headquarters of the First Scout Rangers from the investigation by the DOJ Secretary,[10] and that the police,
Regiment (Camp Tecson) in Brgy. Tartaro, San Miguel, Bulacan starting particularly P/Supt. Jonnel C. Estomo, failed to investigate and act upon these
November 28, 2006. A left-behind force or a squad remained in the camp of leads.[11]
the 56th IB to secure the premises and equipment as it awaited the arrival of
the 69th IB, headed by Lt. Col. Edison Caga, which took over the 56th IBs
area of responsibility for the duration of the retraining. The 69th IB arrived On August 30, 2007, P/Supt. Estomo (the lead investigator in the
at Camp Tecson on December 1, 2006, and remained there until March 7, investigation conducted by the Philippine National Police-Criminal
2007, when the 56th IB returned. There was no formal turnover or inventory Investigation and Detection Group [PNP-CIDG]) testified before the CA that
of equipment and vehicles when the 69th IB arrived on December 1, 2006. he did not investigate or look into the identities of the cartographic sketches

73
of the two abductors provided by the PNP Criminal Investigation Unit, member of the communist movement in Bulacan. Manuel also corroborated
Quezon City.[12] P/Supt. Estomo testified further that he showed the photos Lipios statement regarding the circumstances of the abduction of @KA
of Cpl. Bugalan and Pfc.Villea to witness Larry Marquez for identification RAMON at Ever Gotesco Mall on April 28, 2007; he confirmed that he and
but failed to show any photos of the other officers and men of the 56th IB.[13] @ KA TIBO witnessed the abduction.[19]
Finally, P/Supt. Estomo also testified that he did not propound any
clarificatory questions regarding the disappearance of Jonas Burgos to Lt. Reyes, a rebel-returnee, provided in her Sworn Statement additional material
Cols. Feliciano, Clement, and Caga of the 56th IB who merely voluntarily information regarding the disappearance of Jonas. Reyes alleged that she was
submitted their statements.[14] supposed to meet with @KA RAMON and another comrade in the movement
(whom she identified as @KA JO) to discuss the possibility of arranging a
On August 29, 2007, the PNP-CIDG presented Emerito Lipio @ KA meeting with a contact in the military. She averred that she met @KA JO at
TIBO/KA CRIS, Marlon D. Manuel @ KA CARLO, and Melissa about 11:30 a.m. at the Baliaug Transit Terminal, Cubao enroute to Ever
Concepcion Reyes @ KA LISA/RAMIL to support the theory that elements Gotesco mall where they would meet with a certain @KA RAMON. Reyes
of the New Peoples Army (NPA) perpetrated the abduction of Jonas.[15] In further narrated that they arrived about noon at Ever Gotesco mall; @KA JO
his Sworn Statement, Lipio admitted that he is a member of the Communist left her at McDonalds and told her to wait while he went to look for @KA
Party of the Philippines (CPP)/NPA and that the NPA was behind the RAMON. After an hour, @KA JO arrived without @KA RAMON and told
abduction of Jonas. Lipio revealed that Jonas is known as @KA RAMON in Reyes to go home and just keep in touch through text messaging. Reyes
the communist movement. He claimed further that he and @KA RAMON alleged further that she has not heard from @KA JO since.[20]
belonged to the Bulacan Party Committee, assigned to the White Area
Committee doing intelligence work for the movement under the leadership of
Delfin de Guzman @ KA BASTE, and that @KA RAMON was their political
instructor and head of the intelligence unit in the province.[16] The CA Findings

In its July 17, 2008 decision, the CA found that the evidence the petitioner
Sometime early April of 2007, Lipio was present in a meeting between @KA presented failed to establish her claimed direct connection between the
BASTE and @KA RAMON. At this meeting, the two had a heated argument. abductors of Jonas and the military. The CA noted that the evidence does not
For this reason, @KA BASTE instructed Lipio to place @KA RAMON show how license plate number TAB 194 (supposedly attached to the 1991
under surveillance as they suspected him of pilfering funds from the party Isuzu XLT vehicle impounded at the 56th IB Headquarters) came to be
and of acting as a military agent.[17] attached to the getaway Toyota Revo on April 28, 2007, and whether the two
license plates are one and the same at all. The CA emphasized that the
Lipio further averred that upon instruction of @KA BASTE, he and a certain evidence does not indicate whether the abductors are members of the military
@KA CARLO proceeded to Ever Gotesco Mall on April 28, 2007 to monitor or the police or are civilians; if they are civilians, whether they acted on their
the reported meeting between @KA RAMON and other party members. At own or were following orders, and in the latter case, from whom.
one oclock in the afternoon, Lipio and @KA CARLO (who stationed
themselves near the entrance/exit of the mall) saw a man, who they The CA also found that the investigations by the Armed Forces of the
recognized as @KA RAMON, forcibly taken by four men, brought outside Philippines (AFP) and the PNP leave much to be desired as they did not fully
of the mall, and shoved inside a Toyota Revo. Lipio further alleged that he exert their effort to unearth the truth and to bring the real culprits before the
recognized two of the abductors as @KA DANTE and @KA ENSO who he bar of justice.[21] The CA held that since the petitioner has established that
claims to be members of the CPP/NPAs guerilla unit (RYG).[18] the vehicle used in the abduction was linked to a vehicle (with license plate
In his Sworn Statement, Manuel affirmed and substantiated Lipios statement number TAB 194) impounded at the headquarters of the 56th IB, it became
that @KA RAMON and Jonas are one and the same person and that he is a the burden of the AFP to exercise extraordinary diligence to determine the

74
why and the wherefore of the loss of the license plate in their custody and its preliminary investigation in relation to the abduction and disappearance of
appearance in a vehicle (a maroon Toyota Revo) used in Jonas abduction. Jonas. This is contrary to PNPs manifest representation that it had already
The CA also ruled that the AFP has the burden of connect[ing] certain loose forwarded all pertinent and relevant documents to the DOJ for the filing of
ends[22] regarding the identity of @Ka Ramon (as referred to by the appropriate charges against the suspects (i.e., @KA DANTE and @KA
petitioners witnesses) and the allegation that @Ka Ramon is indeed Jonas in ENSO).
the Order of Battle.
The CA also held that the petitions for habeas corpus and contempt as against
President Gloria Macapagal-Arroyo must be dropped since she enjoys the
As for the PNP-CIDG, the CA branded its investigation as rather shallow and privilege of immunity from suit. The CA ruled that the Presidents immunity
conducted haphazardly. The CA took note that P/Supt. Estomos investigation from suit is a settled doctrine citing David v. Arroyo.[23]
merely delved into the administrative liability of Lt. Col. Clement, Lt. Col.
Feliciano and Lt. Col. Caga of the 56th IB, and failed to consider them as Our Ruling
suspects in the abduction of Jonas. The CA emphasized that the PNP-CIDGs
investigation should focus on the criminal aspect of the present case pursuant Considering the findings of the CA and our review of the records of the
to Section 24 of Republic Act No. 6975, which mandates the PNP to present case, we conclude that the PNP and the AFP have so far failed to
investigate and prevent crimes, effect the arrest of criminal offenders, bring conduct an exhaustive and meaningful investigation into the disappearance
offenders to justice and assist in their prosecution. of Jonas Burgos, and to exercise the extraordinary diligence (in the
performance of their duties) that the Rule on the Writ of Amparo requires.
Because of these investigative shortcomings, we cannot rule on the case until
The CA also found P/Supt. Estomos recommendation that appropriate a more meaningful investigation, using extraordinary diligence, is
charges be filed against Mauro Mudlong (registered owner of the impounded undertaken.
1991 Isuzu XLT vehicle with plate license no. TAB 194) to be without any
factual basis since no evidence was presented to connect the latter to the loss From the records, we note that there are very significant lapses in the handling
of the license plate as well as to the abduction of Jonas. The CA stressed that of the investigation - among them the PNP-CIDGs failure to identify the
it could not find any valid reason why Mudlong should be treated any cartographic sketches of two (one male and one female) of the five abductors
differently from the three 56th IB colonels whom the PNP-CIDG did not of Jonas based on their interview of eyewitnesses to the abduction. This lapse
consider as suspects despite the established fact that license plate no. TAB is based on the information provided to the petitioner by no less than State
194 was lost while in their custody. Prosecutor Emmanuel Velasco of the DOJ who identified the persons who
were possibly involved in the abduction, namely: T/Sgt. Jason Roxas
On the PNP-CIDGs new information from Lipio who claimed to have seen (Philippine Army), Cpl. Maria Joana Francisco (Philippine Air Force),
Jonas being abducted by a certain @KA DANTE and @KA ENSO of the M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly
CPP/NPA guerilla unit RYG, and on Marlon Manuel, who corroborated assigned with Military Intelligence Group 15 of Intelligence Service of the
Lipios statements, the CA held that steps should be taken by the PNP-CIDG AFP.[24] No search and certification were ever made on whether these
to verify the veracity of these statements. Notwithstanding the new persons were AFP personnel or in other branches of the service, such as the
information, the CA noted that the PNP-CIDG should not discount the Philippine Air Force. As testified to by the petitioner, no significant follow
possible involvement of members of the AFP. Thus, the CA concluded that through was also made by the PNP-CIDG in ascertaining the identities of the
the PNP must exert extraordinary diligence in following all possible leads to cartographic sketches of two of the abductors despite the evidentiary leads
resolve the crime committed against Jonas. Finally, the CA noted - based on provided by State Prosecutor Velasco of the DOJ. Notably, the PNP-CIDG,
the Certification issued by the Assistant Chief State Prosecutor, DOJ dated as the lead investigating agency in the present case, did not appear to have
March 5, 2008 - that no case has been referred by the PNP to the DOJ for lifted a finger to pursue these aspects of the case.

75
We note, too, that no independent investigation appeared to have been made AFP; further proceedings and investigations, as may be necessary, should be
by the PNP-CIDG to inquire into the veracity of Lipios and Manuels claims made to pursue the lead allegedly provided by State Prosecutor Velasco on
that Jonas was abducted by a certain @KA DANTE and a certain @KA the identities of the possible abductors; (c) inquiring into the veracity of
ENSO of the CPP/NPA guerilla unit RYG. The records do not indicate Lipios and Manuels claims that Jonas was abducted by a certain @KA
whether the PNP-CIDG conducted a follow-up investigation to determine the DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG; (d)
identities and whereabouts of @KA Dante and @KA ENSO. These determining based on records, past and present, as well as further
omissions were aggravated by the CA finding that the PNP has yet to refer investigation, the identities and whereabouts of @KA DANTE and @KA
any case for preliminary investigation to the DOJ despite its representation ENSO; and (e) undertaking all measures, in the investigation of the Burgos
before the CA that it had forwarded all pertinent and relevant documents to abduction that may be necessary to live up to the extraordinary measures we
the DOJ for the filing of appropriate charges against @KA DANTE and require in addressing an enforced disappearance under the Rule on the Writ
@KA ENSO. of Amparo.

Based on these considerations, we conclude that further investigation and WHEREFORE, in the interest of justice and for the foregoing reasons, the
monitoring should be undertaken. While significant leads have been provided Court RESOLVES to:
to investigators, the investigations by the PNP-CIDG, the AFP Provost
Marshal, and even the Commission on Human Rights (CHR) have been less (1) DIRECT the Commission on Human Rights to conduct appropriate
than complete. The PNP-CIDGs investigation particularly leaves much to be investigative proceedings, including field investigations acting as the Courts
desired in terms of the extraordinary diligence that the Rule on the Writ of directly commissioned agency for purposes of the Rule on the Writ of
Amparo requires. For this reason, we resolve to refer the present case to the Amparo - with the tasks of: (a) ascertaining the identities of the cartographic
CHR as the Courts directly commissioned agency tasked with the sketches of two of the abductors as well as their whereabouts; (b) determining
continuation of the investigation of the Burgos abduction and the gathering based on records, past and present, the identities and locations of the persons
of evidence, with the obligation to report its factual findings and identified by State Prosecutor Velasco alleged to be involved in the abduction
recommendations to this Court. We take into consideration in this regard that of Jonas namely: T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana
the CHR is a specialized and independent agency created and empowered by Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force),
the Constitution to investigate all forms of human rights violations involving and an alias T.L., all reportedly assigned with Military Intelligence Group 15
civil and political rights and to provide appropriate legal measures for the of Intelligence Service of the Armed Forces of the Philippines; further
protection of human rights of all persons within the Philippines.[25] proceedings and investigations, as may be necessary, should be made to
pursue the lead allegedly provided by State Prosecutor Velasco on the
identities of the possible abductors; (c) inquiring into the veracity of Lipios
Under this mandate, the CHR is tasked to conduct appropriate investigative and Manuels claims that Jonas was abducted by a certain @KA DANTE and
proceedings, including field investigations acting as the Courts directly @KA ENSO of the CPP/NPA guerilla unit RYG; (d) determining based on
commissioned agency for purposes of the Rule on the Writ of Amparo with records, past and present, as well as further investigation, the identities and
the tasks of: (a) ascertaining the identities of the persons appearing in the whereabouts of @KA DANTE and @KA ENSO; and (e) undertaking all
cartographic sketches of the two alleged abductors as well as their measures, in the investigation of the Burgos abduction, that may be necessary
whereabouts; (b) determining based on records, past and present, the to live up to the extraordinary measures we require in addressing an enforced
identities and locations of the persons identified by State Prosecutor Velasco disappearance under the Rule on the Writ of Amparo;
alleged to be involved in the abduction of Jonas, namely: T/Sgt. Jason Roxas
(Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force), (2) REQUIRE the incumbent Chiefs of the Armed Forces of the Philippines
M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly and the Philippine National Police to make available and to provide copies,
assigned with Military Intelligence Group 15 of Intelligence Service of the to the Commission on Human Rights, of all documents and records in their

76
possession and as the Commission on Human Rights may require, relevant to The dismissal of the petitions for Contempt and for the Issuance of a Writ of
the case of Jonas Joseph T. Burgos, subject to reasonable regulations Amparo with respect to President Gloria Macapagal-Arroyo is hereby
consistent with the Constitution and existing laws; AFFIRMED.

(3) DIRECT the PNP-CIDG and its incumbent Chief to submit to the
Commission on Human Rights the records and results of the investigation the
PNP-CIDG claimed to have forwarded to the Department of Justice, which
were not included in their previous submissions to the Commission on
Human Rights, including such records as the Commission on Human Rights
may require, pursuant to the authority granted under this Resolution;

(4) Further DIRECT the PNP-CIDG to provide direct investigative assistance


to the Commission on Human Rights as it may require, pursuant to the
authority granted under this Resolution;

(5) AUTHORIZE the Commission on Human Rights to conduct a


comprehensive and exhaustive investigation that extends to all aspects of the
case (not limited to the specific directives as outlined above), as the
extraordinary measures the case may require under the Rule on the Writ of
Amparo; and

(6) REQUIRE the Commission on Human Rights to submit to this Court a


Report with its recommendations, copy furnished the petitioner, the
incumbent Chiefs of the AFP, the PNP and the PNP-CIDG, and all the
respondents, within ninety (90) days from receipt of this Resolution.

In light of the retirement of Lt. General Alexander Yano and the reassignment
of the other respondents who have all been impleaded in their official
capacities, all subsequent resolutions and actions from this Court shall also
be served on, and be directly enforceable by, the incumbents of the impleaded
offices/units whose official action is necessary. The present respondents shall
continue to be personally impleaded for purposes of the responsibilities and
accountabilities they may have incurred during their incumbencies.

77
Navia v. Pardico, GR 184467 (2012)

For the protective writ of amparo to issue in enforced disappearance cases, Petitioners alleged that they invited Bong and Ben to their office because they
allegation and proof that the persons subject thereof are missing are not received a report from a certain Mrs. Emphasis, a resident of Grand Royale
enough. It must also be shown by the required quantum of proof that their Subdivision, that she saw Bong and Ben removing a lamp from a post in said
disappearance was carried out by, or with the authorization, support or subdivision.[11] The reported unauthorized taking of the lamp was relayed
acquiescence of, [the government] or a political organization, followed by a thru radio to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who
refusal to acknowledge [the same or] give information on the fate or both work as security guards at the Asian Land security department.
whereabouts of [said missing] persons.[3] Following their departments standard operating procedure, Dio and Buising
entered the report in their logbook and proceeded to the house of Mrs.
This petition for review on certiorari[4] filed in relation to Section 19 of A.M. Emphasis. It was there where Dio and Buising were able to confirm who the
No. 07-9-12-SC[5] challenges the July 24, 2008 Decision[6] of the Regional suspects were. They thus repaired to the house of Lolita where Bong and Ben
Trial Court (RTC), Branch 20, Malolos City which granted the Petition for were staying to invite the two suspects to their office. Bong and Ben
Writ of Amparo[7] filed by herein respondent against the petitioners. voluntarily went with them.

At the security office, Dio and Buising interviewed Bong and Ben. The
Factual Antecedents 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
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies and Buising informed him that the complainant was not keen in participating
Corporation[8] (Asian Land) arrived at the house of Lolita M. Lapore (Lolita) in the investigation. Since there was no complainant, Navia ordered the
located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam, release of Bong and Ben. Bong then signed a statement to the effect that the
Malolos City. The arrival of the vehicle awakened Lolitas son, Enrique guards released him without inflicting any harm or injury to him.[13] His
Lapore (Bong), and Benhur Pardico (Ben), who were then both staying in her mother Lolita also signed the logbook below an entry which states that she
house. When Lolita went out to investigate, she saw two uniformed guards will never again harbor or entertain Ben in her house. Thereafter, Lolita and
disembarking from the vehicle. One of them immediately asked Lolita where Bong left the security office.
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 Ben was left behind as Navia was still talking to him about those who might
of Asian Land because a complaint was lodged against them for theft of be involved in the reported loss of electric wires and lamps within the
electric wires and lamps in the subdivision.[9] subdivision. After a brief discussion though, Navia allowed Ben to leave. Ben
also affixed his signature on the logbook to affirm the statements entered by
the guards that he was released unharmed and without any injury.[14]
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 Upon Navias instructions, Dio and Buising went back to the house of Lolita
supervisor of the security guards, petitioner Edgardo Navia (Navia), also to make her sign the logbook as witness that they indeed released Ben from
arrived thereat. 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,
As to what transpired next, the parties respective versions diverge. Lolita put on her reading glasses and read the entry in the logbook herself
before affixing her signature therein. After which, the guards left.
Version of the Petitioners

78
she had to sign again, Navia explained that they needed proof that they
released her son Bong unharmed but that Ben had to stay as the latters case
Subsequently, petitioners received an invitation[15] from the Malolos City will be forwarded to the barangay. Since she has poor eyesight, Lolita
Police Station requesting them to appear thereat on April 17, 2008 relative to obligingly signed the logbook without reading it and then left with Bong.[24]
the complaint of Virginia Pardico (Virginia) about her missing husband Ben. At that juncture, Ben grabbed Bong and pleaded not to be left alone.
In compliance with the invitation, all three petitioners appeared at the However, since they were afraid of Navia, Lolita and Bong left the security
Malolos City Police Station. However, since Virginia was not present despite office at once leaving Ben behind.[25]
having received the same invitation, the meeting was reset to April 22,
2008.[16] 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
On April 22, 2008, Virginia attended the investigation. Petitioners informed sign again when she already twice signed the logbook at the headquarters.
her that they released Ben and that they have no information as to his present Buising assured her that what she was about to sign only pertains to Bongs
whereabouts.[17] They assured Virginia though that they will cooperate and release. Since it was dark and she has poor eyesight, Lolita took Buisings
help in the investigation of her missing husband.[18] word and signed the logbook without, again, reading what was written in it.
[26]
Version of the Respondent
The following morning, Virginia went to the Asian Land security office to
According to respondent, Bong and Ben were not merely invited. They were visit her husband Ben, but only to be told that petitioners had already released
unlawfully arrested, shoved into the Asian Land vehicle and brought to the him together with Bong the night before. She then looked for Ben, asked
security office for investigation. Upon seeing Ben at the security office, Navia around, and went to the barangay. Since she could not still find her husband,
lividly grumbled Ikaw na naman?[19] and slapped him while he was still Virginia reported the matter to the police.
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 In the course of the investigation on Bens disappearance, it dawned upon
took hold of his gun, looked at Bong, and said, Wala kang nakita at wala kang Lolita that petitioners took advantage of her poor eyesight and naivete. They
narinig, papatayin ko na si Ben.[21] made her sign the logbook as a witness that they already released Ben when
in truth and in fact she never witnessed his actual release. The last time she
saw Ben was when she left him in petitioners custody at the security
office.[27]
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 Exasperated with the mysterious disappearance of her husband, Virginia filed
asking the administrator of Grand Royale Subdivision to install a lamp to a Petition for Writ of Amparo[28] before the RTC of Malolos City. Finding
illumine their area. But since nothing happened, he took it upon himself to the petition sufficient in form and substance, the amparo court issued an
take a lamp from one of the posts in the subdivision and transfer it to a post Order[29] dated June 26, 2008 directing, among others, the issuance of a writ
near their house. However, the lamp Bong got was no longer working. Thus, of amparo and the production of the body of Ben before it on June 30, 2008.
he reinstalled it on the post from which he took it and no longer pursued his Thus:
plan. [22]

Later on, Lolita was instructed to sign an entry in the guards logbook where
she undertook not to allow Ben to stay in her house anymore.[23] Thereafter,
Navia again asked Lolita to sign the logbook. Upon Lolitas inquiry as to why

79
WHEREFORE, conformably with Section 6 of the Supreme Court The Branch Sheriff is directed to immediately serve personally on the
Resolution [in] A.M. No. 07-[9]-12-SC, also known as The Rule On The Writ [petitioners], at their address indicated in the petition, copies of the writ as
Of Amparo, let a writ of amparo be issued, as follows: well as this order, together with copies of the petition and its annexes.[30]

A Writ of Amparo[31] was accordingly issued and served on the petitioners


(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew on June 27, 2008.[32] On June 30, 2008, petitioners filed their
Buising of the Asian Land Security Agency to produce before the Court the Compliance[33] praying for the denial of the petition for lack of merit.
body of aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30
a.m.; A summary hearing was thereafter conducted. Petitioners presented the
testimony of Buising, while Virginia submitted the sworn statements[34] of
(2) ORDERING the holding of a summary hearing of the petition on Lolita and Enrique which the two affirmed on the witness stand.
the aforementioned date and time, and DIRECTING the [petitioners] to
personally appear thereat; Ruling of the Regional Trial Court

(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and On July 24, 2008, the trial court issued the challenged Decision[35] granting
Andrew Buising to file, within a non-extendible period of seventy-two (72) the petition. It disposed as follows:
hours from service of the writ, a verified written return with supporting
affidavits which shall, among other things, contain the following:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo,
and deems it proper and appropriate, as follows:

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, (a) To hereby direct the National Bureau of Investigation (NBI) to
through any act or omission; 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
b) The steps or actions taken by the [petitioners] to determine the fate records of this case;
or whereabouts of the aggrieved party and the person or persons responsible
for the threat, act or omission; and (b) To hereby direct the NBI to extend to the family of [Benhur] Pardico
and the witnesses who testified in this case protection as it may deem
necessary to secure their safety and security; and

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


pertaining to the threat, act or omission against the aggrieved party. (c) To hereby direct the Office of the Provincial Prosecutor of Bulacan
(4) GRANTING, motu proprio, a Temporary Protection Order to investigate the circumstances concerning the legality of the arrest of
prohibiting the [petitioners], or any persons acting for and in their behalf, [Benhur] Pardico by the [petitioners] in this case, utilizing in the process, as
under pain of contempt, from threatening, harassing or inflicting any harm to part of said investigation, the pertinent documents and admissions forming
[respondent], his immediate family and any [member] of his household. part of the record of this case, and take whatever course/s of action as may be
warranted.

80
Furnish immediately copies of this decision to the NBI, through the Office of Petitioners essentially assail the sufficiency of the amparo petition. They
Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan. contend that the writ of amparo is available only in cases where the factual
and legal bases of the violation or threatened violation of the aggrieved partys
right to life, liberty and security are clear. Petitioners assert that in the case at
bench, Virginia miserably failed to establish all these. First, the petition is
SO ORDERED.[36] wanting on its face as it failed to state with some degree of specificity the
alleged unlawful act or omission of the petitioners constituting a violation of
or a threat to Bens right to life, liberty and security. And second, it cannot be
Petitioners filed a Motion for Reconsideration[37] which was denied by the deduced from the evidence Virginia adduced that Ben is missing; or that
trial court in an Order[38] dated August 29, 2008. 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
Hence, this petition raising the following issues for our consideration: and in holding them responsible for Bens disappearance.

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. Our Ruling

Virginias Petition for Writ of Amparo is fatally defective and must perforce
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH be dismissed, but not for the reasons adverted to by the petitioners.
THAT PETITIONERS HAVE COMMITTED OR ARE COMMITTING
ACTS IN VIOLATION OF HER HUSBANDS RIGHT TO LIFE, A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated
LIBERTY, OR SECURITY. to arrest the rampant extralegal killings and enforced disappearances in the
country. Its purpose is to provide an expeditious and effective relief to any
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY person whose right to life, liberty and security is violated or threatened with
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF BENHUR violation by an unlawful act or omission of a public official or employee, or
PARDICO of a private individual or entity. [40]

Here, Bens right to life, liberty and security is firmly settled as the parties do
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH not dispute his identity as the same person summoned and questioned at
THAT THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO petitioners security office on the night of March 31, 2008. Such
WAS AT THE INSTANCE OF HEREIN PETITIONERS.[39] uncontroverted fact ipso facto established Bens inherent and constitutionally
enshrined right to life, liberty and security. Article 6[41] of the International
Petitioners Arguments Covenant on Civil and Political Rights[42] recognizes every human beings
inherent right to life, while Article 9[43] thereof ordains that everyone has
the right to liberty and security. The right to life must be protected by law

81
while the right to liberty and security cannot be impaired except on grounds on December 11, 2009. Section 3(g) thereof defines enforced or involuntary
provided by and in accordance with law. This overarching command against disappearances as follows:
deprivation of life, liberty and security without due process of law is also
embodied in our fundamental law.[44] (g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization, support or
The pivotal question now that confronts us is whether Bens disappearance as acquiescence of, a State or a political organization followed by a refusal to
alleged in Virginias petition and proved during the summary proceedings acknowledge that deprivation of freedom or to give information on the fate
conducted before the court a quo, falls within the ambit of A.M. No. 07-9- or whereabouts of those persons, with the intention of removing from the
12-SC and relevant laws. protection of the law for a prolonged period of time.

It does not. Section 1 of A.M. No. 07-9-12-SC provides: Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo D. Brion
wrote in his Separate Opinion that with the enactment of RA No. 9851, the
SECTION 1. Petition. The petition for a writ of amparo is a remedy available Rule on the Writ of Amparo is now a procedural law anchored, not only on
to any person whose right to life, liberty and security is violated or threatened the constitutional rights to the rights to life, liberty and security, but on a
with violation by an unlawful act or omission of a public official or employee, concrete statutory definition as well of what an enforced or involuntary
or of a private individual or entity. disappearance is.[50] Therefore, A.M. No. 07-9-12-SCs reference to enforced
disappearances should be construed to mean the enforced or involuntary
The writ shall cover extralegal killings and enforced disappearances or disappearance of persons contemplated in Section 3(g) of RA No. 9851.
threats thereof. (Emphasis ours.) Meaning, in probing enforced disappearance cases, courts should read A.M.
No. 07-9-12-SC in relation to RA No. 9851.
While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does
not, however, define extralegal killings and enforced disappearances. This From the statutory definition of enforced disappearance, thus, we can derive
omission was intentional as the Committee on Revision of the Rules of Court the following elements that constitute it:
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 (a) that there be an arrest, detention, abduction or any form of deprivation
Razon, Jr. v. Tagitis[46] when this Court defined enforced disappearances. of liberty;
The Court in that case applied the generally accepted principles of
international law and adopted the International Convention for the Protection (b) that it be carried out by, or with the authorization, support or
of All Persons from Enforced Disappearances definition of enforced acquiescence of, the State or a political organization;
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 (c) that it be followed by the State or political organizations refusal to
acting with the authorization, support or acquiescence of the State, followed acknowledge or give information on the fate or whereabouts of the person
by a refusal to acknowledge the deprivation of liberty or by concealment of subject of the amparo petition; and,
the fate or whereabouts of the disappeared person, which place such a person
outside the protection of the law.[47] (d) that the intention for such refusal is to remove subject person from
the protection of the law for a prolonged period of time.
Not long thereafter, another significant development affecting A.M. No. 07-
9-12-SC came about after Congress enacted Republic Act (RA) No. 9851[48] As thus dissected, it is now clear that for the protective writ of amparo to
issue, allegation and proof that the persons subject thereof are missing are not

82
enough. It must also be shown and proved by substantial evidence that the We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo
disappearance was carried out by, or with the authorization, support or may lie against a private individual or entity. But even if the person sought to
acquiescence of, the State or a political organization, followed by a refusal to be held accountable or responsible in an amparo petition is a private
acknowledge the same or give information on the fate or whereabouts of said individual or entity, still, government involvement in the disappearance
missing persons, with the intention of removing them from the protection of remains an indispensable element. Here, petitioners are mere security guards
the law for a prolonged period of time. Simply put, the petitioner in an amparo at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their
case has the burden of proving by substantial evidence the indispensable principal, the Asian Land, is a private entity. They do not work for the
element of government participation. government and nothing has been presented that would link or connect them
to some covert police, military or governmental operation. As discussed
In the present case, we do not doubt Bongs testimony that Navia had a above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No.
menacing attitude towards Ben and that he slapped and inflicted fistic blows 9851, the disappearance must be attended by some governmental
upon him. Given the circumstances and the pugnacious character of Navia at involvement. This hallmark of State participation differentiates an enforced
that time, his threatening statement, Wala kang nakita at wala kang narinig, disappearance case from an ordinary case of a missing person.
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 WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court,
would support petitioners assertion that they released Ben on the night of Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition for
March 31, 2008 unscathed from their wrath. Lolita sufficiently explained how Writ of Amparo filed by Virginia Pardico is hereby DISMISSED.
she was prodded into affixing her signatures in the logbook without reading
the entries therein. And so far, the information petitioners volunteered are
sketchy at best, like the alleged complaint of Mrs. Emphasis who was never
identified or presented in court and whose complaint was never reduced in
writing.

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


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

83
G.R. No. 204528 February 19, 2013
In an Order dated 2 March 2012,6 Judge Pampilo insisted that "[s]ince no
SECRETARY LEILA M. DE LIMA, DIRECTOR NONNATUS R. ROJAS writ has been issued, return is not the required pleading but answer".7 The
and DEPUTY DIRECTOR REYNALDO 0. ESMERALDA, Petitioners, judge noted that the Rules of Court apply suppletorily in Amparo cases.8 He
vs. opined that the Revised Rules of Summary Procedure applied and thus
MAGTANGGOL B. GATDULA, Respondent. required an Answer.9

RESOLUTION Judge Pampilo proceeded to conduct a hearing on the main case on 7 March
2012.10 Even without a Return nor an Answer, he ordered the parties to file
LEONEN, J.: their respective memoranda within five (5) working days after that hearing.
Since the period to file an Answer had not yet lapsed by then, the judge also
Submitted for our resolution is a prayer for the issuance of a temporary decided that the memorandum of De Lima, et al. would be filed in lieu of
restraining order and/or writ of preliminary injunction to enjoin "the Regional their Answer.11
Trial Court, Branch 26, in Manila from implementing its Decision x x x in
Civil Case No. 12-127405 granting respondent's application for the issuance On 20 March 2012, the RTC rendered a "Decision" granting the issuance of
of inspection and production orders x x x."1 This is raised through a Petition the Writ of Amparo. The RTC also granted the interim reliefs prayed for,
for Review on Certiorari under Rule 45 from the "Decision" rendered by the namely: temporary protection, production and inspection orders. The
Regional Trial Court dated 20 March 2012. production and inspection orders were in relation to the evidence and reports
involving an on-going investigation of the attempted assassination of Deputy
From the records, it appears that on 27 February 2012, respondent Director Esmeralda. It is not clear from the records how these pieces of
Magtanggol B. Gatdula filed a Petition for the Issuance of a Writ of Amparo evidence may be related to the alleged threat to the life, liberty or security of
in the Regional Trial Court of Manila.2 This case was docketed as In the the respondent Gatdula.
Matter of the Petition for Issuance of Writ of Amparo of Atty. Magtanggol
B. Gatdula, SP No. 12-127405. It was raffled to the sala of Judge Silvino T. In an Order dated 8 October 2012, the RTC denied the Motion for
Pampilo, Jr. on the same day. Reconsideration dated 23 March 2012 filed by De Lima, et al.

The Amparo was directed against petitioners Justice Secretary Leila M. De Petitioners Sec. De Lima, et al. thus came to this Court assailing the RTC
Lima, Director Nonnatus R. Rojas and Deputy Director Reynaldo O. "Decision" dated 20 March 2012 through a Petition for Review on Certiorari
Esmeralda of the National Bureau of Investigation (DE LIMA, ET AL. for (With Very Urgent Application for the Issuance of a Temporary Restraining
brevity). Gatdula wanted De Lima, et al. "to cease and desist from framing Order/Writ of Preliminary Injunction) via Rule 45, as enunciated in Section
up Petitioner [Gatdula] for the fake ambush incident by filing bogus charges 19 of the Rule on the Writ of Amparo (A.M. No. 07-9- 12-SC, 25 September
of Frustrated Murder against Petitioner [Gatdula] in relation to the alleged 2007), viz:
ambush incident."3
SEC. 19. Appeal. – Any party may appeal from the final judgment or order
Instead of deciding on whether to issue a Writ of Amparo, the judge issued to the Supreme Court under Rule 45. The appeal may raise questions of fact
summons and ordered De Lima, et al. to file an Answer.4 He also set the case or law or both. x x x (Emphasis supplied).
for hearing on 1 March 2012. The hearing was held allegedly for determining
whether a temporary protection order may be issued. During that hearing, It is the Court’s view that the "Decision" dated 20 March 2012 granting the
counsel for De Lima, et al. manifested that a Return, not an Answer, is writ of Amparo is not the judgment or final order contemplated under this
appropriate for Amparo cases.5

84
rule. Hence, a Petition for Review under Rule 45 may not yet be the proper statements concerning the death or disappearance; (iv) determine the cause,
remedy at this time. manner, location, and time of death or disappearance as well as any pattern
or practice that may have brought about the death or disappearance; and (vi)
The RTC and the Parties must understand the nature of the remedy of Amparo bring the suspected offenders before a competent court.25 Clearly these
to put its procedures in the proper context. matters are important to the judge so that s/he can calibrate the means and
methods that will be required to further the protections, if any, that will be
The remedy of the Writ of Amparo is an equitable and extraordinary remedy due to the petitioner.
to safeguard the right of the people to life, liberty12 and security13 as
enshrined in the 1987 Constitution.14 The Rule on the Writ of Amparo was There will be a summary hearing26 only after the Return is filed to determine
issued as an exercise of the Supreme Court's power to promulgate rules the merits of the petition and whether interim reliefs are warranted. If the
concerning the protection and enforcement of constitutional rights.15 It aims Return is not filed, the hearing will be done ex parte.27 After the hearing, the
to address concerns such as, among others, extrajudicial killings and enforced court will render the judgment within ten (10) days from the time the petition
disappearances.16 is submitted for decision.28

Due to the delicate and urgent nature of these controversies, the procedure If the allegations are proven with substantial evidence, the court shall grant
was devised to afford swift but decisive relief.17 It is initiated through a the privilege of the writ and such reliefs as may be proper and appropriate.29
petition18 to be filed in a Regional Trial Court, Sandiganbayan, the Court of The judgment should contain measures which the judge views as essential for
Appeals, or the Supreme Court.19 The judge or justice then makes an the continued protection of the petitioner in the Amparo case. These measures
"immediate" evaluation20 of the facts as alleged in the petition and the must be detailed enough so that the judge may be able to verify and monitor
affidavits submitted "with the attendant circumstances detailed".21 After the actions taken by the respondents. It is this judgment that could be subject
evaluation, the judge has the option to issue the Writ of Amparo22 or to appeal to the Supreme Court via Rule 45.30 After the measures have served
immediately dismiss the case. Dismissal is proper if the petition and the their purpose, the judgment will be satisfied. In Amparo cases, this is when
supporting affidavits do not show that the petitioner's right to life, liberty or the threats to the petitioner’s life, liberty and security cease to exist as
security is under threat or the acts complained of are not unlawful. On the evaluated by the court that renders the judgment. Parenthetically, the case
other hand, the issuance of the writ itself sets in motion presumptive judicial may also be terminated through consolidation should a subsequent case be
protection for the petitioner. The court compels the respondents to appear filed – either criminal or civil.31 Until the full satisfaction of the judgment,
before a court of law to show whether the grounds for more permanent the extraordinary remedy of Amparo allows vigilant judicial monitoring to
protection and interim reliefs are necessary. ensure the protection of constitutional rights.

The respondents are required to file a Return23 after the issuance of the writ The "Decision" dated 20 March 2012 assailed by the petitioners could not be
through the clerk of court. The Return serves as the responsive pleading to the judgment or final order that is appealable under Section 19 of the Rule on
the petition.24 Unlike an Answer, the Return has other purposes aside from the Writ of Amparo. This is clear from the tenor of the dispositive portion of
identifying the issues in the case. Respondents are also required to detail the the "Decision", to wit:
actions they had taken to determine the fate or whereabouts of the aggrieved
party. The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the
Writ of Amparo.
If the respondents are public officials or employees, they are also required to
state the actions they had taken to: (i) verify the identity of the aggrieved Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the
party; (ii) recover and preserve evidence related to the death or disappearance service of the Writ of Amparo in an expeditious manner upon all concerned,
of the person identified in the petition; (iii) identify witnesses and obtain

85
and for this purpose may call upon the assistance of any military or civilian The 1991 Revised Rules of Summary Procedure is a special rule that the
agency of the government. Court has devised for the following circumstances:

This "Decision" pertained to the issuance of the writ under Section 6 of the SECTION 1. Scope. – This rule shall govern the summary procedure in the
Rule on the Writ of Amparo, not the judgment under Section 18. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
"Decision" is thus an interlocutory order, as suggested by the fact that Trial Courts, and the Municipal Circuit Trial Courts in the following cases
temporary protection, production and inspection orders were given together falling within their jurisdiction:
with the decision. The temporary protection, production and inspection orders
are interim reliefs that may be granted by the court upon filing of the petition A. Civil Cases:
but before final judgment is rendered.32
(1) All cases of forcible entry and unlawful detainer, x x x.
The confusion of the parties arose due to the procedural irregularities in the
RTC. (2) All other cases, except probate proceedings, where the total amount of the
plaintiff’s claim does not exceed x x x.
First, the insistence on filing of an Answer was inappropriate. It is the Return
that serves as the responsive pleading for petitions for the issuance of Writs B. Criminal Cases:
of Amparo. The requirement to file an Answer is contrary to the intention of
the Court to provide a speedy remedy to those whose right to life, liberty and (1) Violations of traffic laws, rules and regulations;
security are violated or are threatened to be violated. In utter disregard of the
Rule on the Writ of Amparo, Judge Pampilo insisted on issuing summons and (2) Violations of the rental law;
requiring an Answer.
(3) Violations of municipal or city ordinances;
Judge Pampilo’s basis for requiring an Answer was mentioned in his Order
dated 2 March 2012: (4) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine not
Under Section 25 of the same rule [on the Writ of Amparo], the Rules of exceeding one thousand pesos (P1,000.00), or both, x x x.
Court shall apply suppletorily insofar as it is not inconsistent with the said
rule. xxxx

Considering the summary nature of the petition, Section 5 of the Revised It is clear from this rule that this type of summary procedure only applies to
Rules of Summary Procedure shall apply. MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply
to proceedings in an RTC. Aside from that, this Court limited the application
Section 5. Answer – Within ten (10) days from service of summons, the of summary procedure to certain civil and criminal cases. A writ of Amparo
defendant shall file his Answer to the complaint and serve a copy thereof on is a special proceeding. It is a remedy by which a party seeks to establish a
the plaintiff. x x x status, a right or particular fact.34 It is not a civil nor a criminal action, hence,
the application of the Revised Rule on Summary Procedure is seriously
WHEREFORE, based on the foregoing, the respondents are required to file misplaced.
their Answer ten (days) from receipt of this Order.33

86
The second irregularity was the holding of a hearing on the main case prior
to the issuance of the writ and the filing of a Return. Without a Return, the A judgment which simply grants "the privilege of the writ" cannot be
issues could not have been properly joined. executed.1âwphi1 It is tantamount to a failure of the judge to intervene and
grant judicial succor to the petitioner. Petitions filed to avail of the privilege
Worse, is the trial court’s third irregularity: it required a memorandum in lieu of the Writ of Amparo arise out of very real and concrete circumstances.
of a responsive pleading (Answer) of De Lima, et al. Judicial responses cannot be as tragically symbolic or ritualistic as "granting
the privilege of the Writ of Amparo."
The Return in Amparo cases allows the respondents to frame the issues
subject to a hearing. Hence, it should be done prior to the hearing, not after. The procedural irregularities in the RTC affected the mode of appeal that
A memorandum, on the other hand, is a synthesis of the claims of the party petitioners used in elevating the matter to this Court.
litigants and is a final pleading usually required before the case is submitted
for decision. One cannot substitute for the other since these submissions have It is the responsibility of counsels for the parties to raise issues using the
different functions in facilitating the suit. proper procedure at the right time. Procedural rules are meant to assist the
parties and courts efficiently deal with the substantive issues pertaining to a
More importantly, a memorandum is a prohibited pleading under the Rule on case. When it is the judge himself who disregards the rules of procedure,
the Writ of Amparo.35 delay and confusion result.

The fourth irregularity was in the "Decision" dated 20 March 2012 itself. In The Petition for Review is not the proper remedy to assail the interlocutory
the body of its decision, the RTC stated: order denominated as "Decision" dated 20 March 2012. A Petition for
Certiorari, on the other hand, is prohibited.36 Simply dismissing the present
"Accordingly this court GRANTS the privilege of the writ and the interim petition, however, will cause grave injustice to the parties involved. It
reliefs prayed for by the petitioner." (Emphasis supplied). undermines the salutary purposes for which the Rule on the Writ of Amparo
were promulgated.
This gives the impression that the decision was the judgment since the
phraseology is similar to Section 18 of the Rule on the Writ of Amparo: In many instances, the Court adopted a policy of liberally construing its rules
in order to promote a just, speedy and inexpensive disposition of every action
"SEC. 18. Judgment. — The court shall render judgment within ten (10) days and proceeding.37 The rules can be suspended on the following grounds: (1)
from the time the petition is submitted for decision. If the allegations in the matters of life, liberty, honor or property, (2) the existence of special or
petition are proven by substantial evidence, the court shall grant the privilege compelling circumstances, (3) the merits of the case, (4) a cause not entirely
of the writ and such reliefs as may be proper and appropriate; otherwise, the attributable to the fault or negligence of the party favored by the suspension
privilege shall be denied." (Emphasis supplied). of the rules, (5) a lack of any showing that the review sought is merely
frivolous and dilatory, and (6) the other party will not be unjustly prejudiced
The privilege of the Writ of Amparo should be distinguished from the actual thereby.38
order called the Writ of Amparo. The privilege includes availment of the
entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of WHEREFORE, in the interest of justice, as a prophylactic to the irregularities
Amparo. After examining the petition and its attached affidavits, the Return committed by the trial court judge, and by virtue of its powers under Article
and the evidence presented in the summary hearing, the judgment should VIII, Section 5 (5) of the Constitution, the Court RESOLVES to:
detail the required acts from the respondents that will mitigate, if not totally
eradicate, the violation of or the threat to the petitioner's life, liberty or
security.

87
(1) NULLIFY all orders that are subject of this Resolution issued by Judge
Silvino T. Pampilo, Jr. after respondent Gatdula filed the Petition for the
Issuance of a Writ of Amparo;

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

The Clerk of Court is DIRECTED to cause the personal service of this


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

88
G.R. No. 193652 August 5, 2014 On November 26, 2009, Marcelino suffered a heart attack and died8 without
knowing about the birth of his son. Thereafter, during the wake, Christina
Infant JULIAN YUSA Y CARAM, represented by his mother, MA. disclosed to Marcelino’s family that she and the deceased had a son that she
CHRISTINA YUSAY CARAM, Petitioner, gave up for adoption due to financial distress and initial embarrassment.
vs. Marcelino’s family was taken aback by the revelation and sympathized with
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. Christina. After the emotional revelation, they vowed to help her recover and
CABRERA, and CELIA C. YANGCO, Respondents. raise the baby.9 On November 27, 2009, the DSWD, through Secretary
Esperanza I. Cabral issued a certificate10 declaring Baby Julian as "Legally
DECISION Available for Adoption." A local matching conference was held on January
27, 2010 and on February 5, 2010, Baby Julian was "matched" with the
VILLARAMA, JR., J.: spouses Vergel and Filomina Medina (Medina Spouses) of the Kaisahang
Bahay Foundation. Supervised trial custody then commenced.11
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 On May 5, 2010, Christina who had changed her mind about the adoption,
Writ of Amparo2 seeking to set aside the August 17, 20103 and September wrote a letter to the DSWDasking for the suspension of Baby Julian’s
6, 20104 Orders of the Regional Trial Court (RTC), Branch 106 of Quezon adoption proceedings. She alsosaid she wanted her family back together.12
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 On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui,
her to regain parental authority and custody of Julian Yusay Caram (Baby sent a Memorandum13 to DSWD Assistant Secretary Vilma B. Cabrera
Julian), her biological child, from the respondent officers of the Department informing her that the certificate declaring Baby Julian legally available for
of Social Welfare and Development (DSWD). The factual antecedents as adoption had attained finality on November 13, 2009, or three months after
gleaned from the records follow: Christina signed the Deed of Voluntary Commitment which terminated her
parental authority and effectively made Baby Julian a ward of the State. The
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous said Memorandum was noted by respondent Atty. Sally D. Escutin, Director
relationship with Marcelino Gicano Constantino III (Marcelino) and IV of the Legal Service, DSWD.
eventually became pregnant with the latter’s child without the benefit of
marriage. After getting pregnant, Christina mislead Marcelino into believing On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother, sent a letter
that she had an abortion when in fact she proceeded to complete the term of to Atty. Escutin informing her that a DNA testing was scheduled on July 16,
her pregnancy. During this time, she intended to have the child adopted 2010 at the DNA Analysis Laboratory at the University of the Philippines.14
through Sun and Moon Home for Children (Sun and Moon) in Parañaque
City to avoid placing her family ina potentially embarrassing situation for On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to Noel
having a second illegitimate son.5 Constantino stating that it would not allow Baby Julian to undergo DNA
testing. Assistant Secretary Cabrera informed Noel Constantino that the
On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez procedures followed relative to the certification on the availability of the child
Memorial MedicalCenter, Marikina City.6 Sun and Moon shouldered all the for adoption and the child’s subsequent placement to prospective adoptive
hospital and medical expenses. On August 13, 2009, Christina voluntarily parents were proper, and that the DSWD was no longer in the position to stop
surrendered Baby Julian by way of a Deed of Voluntary Commitment7 to the the adoption process. Assistant Secretary Cabrera further stated that should
DSWD. 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

89
reglementary period for her to regain her parental rights had already lapsed In turn, the RTC acknowledged the appearance of the OSG and allowed its
under Section 7 of Republic Act (R.A.) No. 9523.16 representatives to actively participate in the arguments raised during the said
hearing. Relative to the matter of the parties submitting additional pleadings,
On July 27, 2010, Christina filed a petition17 for the issuance of a writ of Judge Sale narrowed the issues to be discussed by providing for the following
amparo before the RTC of Quezon City seeking to obtain custody of Baby guidelines, thus:
Julian from Atty. Segui, Atty. Escutin, Assistant Secretary Cabrera and
Acting Secretary Celia C. Yangco, all of the DSWD. To abbreviate the proceedings, in view of all the manifestations and counter-
manifestations made by the counsels, the court enjoined the parties to file
In her petition, Christina accused respondents of "blackmailing" her into their respective position papers on the following issues:
surrendering custody of her childto the DSWD utilizing what she claims to
be an invalid certificate of availability for adoption which respondents 1. Whether or not this court has jurisdiction over the instant case;
allegedly used as basis to misrepresent that all legal requisites for adoption of
the minor child had been complied with. 2. Whether or not this petition isthe proper remedy based on the facts of the
case and prayer in the petition; and
Christina argued that by making these misrepresentations, the respondents
had acted beyond the scope of their legal authority thereby causing the 3. Whether or not the prayer in the petition should be granted and custody of
enforced disappearance of the said child and depriving her of her custodial the child be given to his biological mother.
rights and parental authority over him.
The parties were given five (5) days from today to file their respective
On the basis of the said petition,the RTC, Branch 106 of Quezon City, position papers based on these three main issues. They may include other
through its Presiding Judge, the Honorable Angelene Mary W. Quimpo-Sale, related issues they deem essential for the resolution of this case. Set this case
issued a Writ of Amparo18 on July 28, 2010 commanding the four for further hearing, if necessary, on August 18, 2010 at 9:00 a.m.21
respondents to produce the body of Baby Julian at a hearing scheduled on
August 4, 2010. Respondents were alsorequired to file their verified written In the same order, Judge Sale alsoacknowledged that the child subject of the
return to the writ pursuant to Section 919 of the Amparo Rule, within five case was brought before the court and the petitioner was allowed to see him
working days from the service of the writ. and take photographs of him.

The respondents complied with the writ and filed their Return20 on August On August 17, 2010, the RTC dismissed the petition for issuance of a writ of
2, 2010 praying that the petition be denied for being the improper remedy to amparo without prejudice to the filing of the appropriate action in court. The
avail of in a case relating toa biological parent’s custodial rights over her RTC held that Christina availed of the wrong remedy to regain custody of her
child. 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
On August 4, 2010, respondents appeared before the RTC but respondents Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody
did not bring the child, stating that threats of kidnapping were made on the of Minors. If there is extreme urgency to secure custody of a minor who has
child and his caregivers. To give respondents another chance, the RTC reset been illegallydetained by another, a petition for the issuance of a writ of
the hearing to August 5, 2010. 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
At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) inRelation to Custody of Minors.23
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.

90
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 Section 1 of the Rule on the Writ of Amparo provides as follows:
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 SECTION 1. Petition. – The petition for a writ of amparois a remedy
September 6, 2010 maintaining that the latter availed of the wrong remedy available to any person whose right to life, liberty and security is violated or
and that the Supreme Court intended the writ of amparo to address the threatened with violation by an unlawful actor omission of a public official
problem of extrajudicial killings and enforced disappearances.26 or employee, or of a private individual or entity.

On September 28, 2010, Christina directly elevated the case before this Court, The writ shall cover extralegal killings and enforced disappearances or threats
via a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil thereof.
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 In the landmark case of Secretary of National Defense, et al. v. Manalo, et
August 17, 2010 and September 6, 2010 Orders of the RTC, (2) declare R.A. al.,31 this Court held:
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 [T]he AmparoRule was intended to address the intractable problem of
of separation of powers, (3) declare the "enforced separation" between her "extralegal killings" and "enforced disappearances," its coverage, in its
and Baby Julian as violative of her rights to life, liberty and security, and (4) present form, is confined to these two instances or to threats thereof.
grant her the privilege of availing the benefits of a writ of amparo so she could "Extralegal killings" are "killings committed without due process of law, i.e.,
be reunited with her son.28 without legal safeguards or judicial proceedings." On the other hand,
"enforced disappearances" are "attended by the following characteristics: an
The only relevant issue presented before the Court worthy of attention is arrest, detention or abduction of a person by a government official or
whether a petition for a writ of amparo is the proper recourse for obtaining organized groupsor private individuals acting with the direct or indirect
parental authority and custody of a minor child. This Court will not belabor acquiescence of the government; the refusal of the State to disclose the fate
to discuss Christina’s argumentsrelating to the supposedunconstitutionality or whereabouts of the person concerned or a refusal to acknowledge the
or R.A. No. 9523 as Congress has the plenary power to repeal, alter and deprivation of liberty which places such persons outside the protection of law.
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 This pronouncement on the coverage of the writ was further cemented in the
the courts. 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
Now, in her petition, Christina argues that the life, liberty and security of extrajudicial killings and enforced disappearances, or to threats thereof. As to
Baby Julian is being violated or threatened by the respondent DSWD officers’ what constitutes "enforced disappearance," the Court in Navia v. Pardico33
enforcement of an illegal Deed of Voluntary Commitment between her and enumerated the elementsconstituting "enforced disappearances" as the term
Sun and Moon. She claims thatshe had been "blackmailed" through the said is statutorily defined in Section 3(g) of R.A. No. 985134 to wit:
Deed by the DSWD officers and Sun and Moon’s representatives into
surrendering her child thereby causing the "forced separation" of the said (a) that there be an arrest, detention, abduction or any form of deprivation of
infant from his mother. Furthermore, she also reiterates that the respondent liberty;
DSWD officers acted beyond the scope of their authority when they deprived
her of Baby Julian’s custody.30 (b) that it be carried out by, or with the authorization, support or acquiescence
of, the State ora political organization;
The Court rejects petitioner’s contentions and denies the petition.

91
(c) that it be followed by the State or political organization’s refusal to Proc. Case No. Q-10-67604 are AFFIRMED without prejudice to petitioner's
acknowledge or give information on the fate or whereabouts of the person right to avail of proper legal remedies afforded to her by law and related rules.
subject of the amparopetition; and,
No costs.
(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.

92
G.R. No. 205039, October 21, 2015 expletives against petitioners, and threatened that they will retaliate.6
Terrified by the gravity of the threats hurled, petitioners filed a petition for
SPOUSES ROZELLE RAYMOND MARTIN AND CLAUDINE the issuance of a writ of amparo against respondents on May 11, 2012 before
MARGARET SANTIAGO, Petitioners, v. RAFFY TULFO, BEN TULFO, the RTC.7
AND ERWIN TULFO, Respondents.
On May 23, 2012, Erwin Tulfo filed a Manifestation and Motion to Deny
DECISION Issuance of Protection Order and/or Dismissal of the Petition Motu Proprio8
(May 23, 2012 Motion) which was opposed by petitioners for being a
PERLAS-BERNABE, J.: prohibited pleading.9

Assailed in this petition for review on certiorari1 are the Resolutions dated On May 24, 2012, then Presiding Judge Bayani Vargas (JudgeVargas) issued
August 6, 20122 and January 7, 20133 of the Regional Trial Court of Quezon a Resolution10 granting a TPO in favor of petitioners and directed
City4 (RTC) in SP No. Q-12-71275, which (a) dismissed the petition for writ respondents to file their return/answer.11
of amparo filed by petitioners-spouses Rozelle Raymond Martin "Raymart"
(Raymart) and Claudine Margaret Santiago (Claudine; collectively, In his return/answer,12 Ben Tulfo claimed that the statements he uttered did
petitioners) and (b) dissolved the temporary protection order (TPO) not involve any actual threat and that he merely expressed his strong
previously issued therein. sentiments to defend his brother.13

On June 29, 2012, Judge Vargas submitted the case for resolution but
The Facts eventually retired on July 11, 2012. Consequently, Judge Maria Filomena
Singh (Judge Singh) was designated as the Acting Presiding Judge who
At around 11:40 in the morning of May 6, 2012, petitioners arrived at the assumed office and handled the present case.14
Ninoy Aquino International Airport Terminal 3 (NAIA 3) aboard a Cebu
Pacific Airline flight from a vacation with their family and friends. They The RTC Ruling
waited for the arrival of their baggage but were eventually informed that it
was offloaded and transferred to a different flight. Aggrieved, petitioners In a Resolution15 dated August 6, 2012, the RTC, through Judge Singh,
lodged a complaint before the Cebu Pacific complaint desk. As they were dismissed the petition and ordered the dissolution of the TPO.16 It held that
complaining, they noticed a man taking photos of Claudine with his cellular the petition is not a proper subject of a writ of amparo since the rules were
phone. Ray mart approached the man and asked what he was doing. intended to apply solely to cases of extralegal killings and enforced
Suddenly, the man, later identified as Ramon "Mon" Tulfo (Mon), allegedly disappearances, noting that the purpose of the law is to, among others,
punched and kicked Raymart, forcing the latter to fight back. When Claudine ascertain the whereabouts of an aggrieved party, recover evidence related to
saw the commotion, she approached Mon and the latter likewise allegedly the death or disappearance of the person identified in the petition, and
kicked and pushed her back against the counter. At that instance, Raymart determine the facts surrounding the death or disappearance of a missing
rushed to defend his wife, while one Edoardo Benjamin Atilano (Atilano) person. Consequently, it held that it did not have the authority to issue said
joined in the brawl. Immediately thereafter, several airport security personnel writ in favor of petitioners. In this relation, it explained that while it is true
came to stop the altercation and brought them to the Airport Police that the May 23, 2012 Motion was a motion to dismiss and as such, a
Department for investigation.5 prohibited pleading under the rules, it still had the discretion to dismiss the
case when in its own determination the case is not covered by the same rule.
Days after the incident, respondents Raffy, Ben, and Erwin Tulfo It expressed that the prohibition against motions to dismiss was meant to
(respondents), brothers of Mon, aired on their TV program comments and expedite the proceedings; thus, in line with the same objective, it has the

93
primary duty to so declare if it cannot grant the remedy at the outset so as not constitutional rights, the parameters of protection are not the same in every
to waste the time and resources of the litigants and the courts, both in a moot jurisdiction. In Manalo, the origins of amparo were discussed as follows:
and academic exercise.17
The writ of amparo originated in Mexico. "Amparo" literally means
Petitioners filed a motion for reconsideration,18 which was, however, denied "protection" in Spanish. In 1837, de Tocqueville's Democracy in America
for lack of merit in a Resolution19 dated January 7, 2013; hence, this petition. became available in Mexico and stirred great interest. Its description of the
practice of judicial review in the U.S. appealed to many Mexican jurists. One
The Issue Before the Court of them, Manuel Crescencio Rejon, drafted a constitutional provision for his
native state, Yucatan, which granted judges the power to protect all persons
The essential issue in this case is whether or not the RTC's dismissal of in the enjoyment of their constitutional and legal rights. This idea was
petitioners' amparo petition was correct. incorporated into the national constitution in 1847,
viz:chanRoblesvirtualLawlibrary
Petitioners argue that the issuance of a writ of amparo is not limited to cases The federal courts shall protect any inhabitant of the Republic in the exercise
of extrajudicial killings, enforced disappearances, or threats thereof.20 They and preservation of those rights granted to him by this Constitution and by
submit that they need not undergo the human rights abuses such as laws enacted pursuant hereto, against attacks by the Legislative and
extrajudicial killings or enforced disappearances, as is common to landmark Executive powers of the federal or state governments, limiting themselves to
decisions on military and police abuses, before their right to life, liberty, and granting protection in the specific case in litigation, making no general
security may be protected by a writ of amparo.21 Further, they insist that the declaration concerning the statute or regulation that motivated the
May 23, 2012 Motion was a prohibited pleading and, hence, should not have violation.ChanRoblesVirtualawlibrary
been allowed.22 Since then, the protection has been an important part of Mexican
constitutionalism. If, after hearing, the judge determines that a constitutional
The Court's Ruling 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 petition is bereft of merit. 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
In the landmark case of Secretary of National Defense v. Manalo (Manalo),23 limitations on judicial power characteristic of the civil law tradition which
the Court has already explained that the writ of amparo, under its present prevails in Mexico. It enables courts to enforce the constitution by protecting
procedural formulation, namely, A.M. No. 07-9-12-SC,24 otherwise known individual rights in particular cases, but prevents them from using this power
as "The Rule on the Writ of Amparo," was intended to address and, thus, is to make law for the entire nation.
presently confined to cases involving extralegal killings and/or enforced
disappearances, or threats thereof: The writ of amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular needs of
As the Amparo Rule was intended to address the intractable problem of each country. It became, in the words of a justice of the Mexican Federal
"extralegal killings" and "enforced disappearances," its coverage, in its Supreme Court, one piece of Mexico's self-attributed "task of conveying to
present form, is confined to these two instances or to threats thereof, x x x. the world's legal heritage that institution which, as a shield of human dignity,
(Emphasis and underscoring supplied)ChanRoblesVirtualawlibrary her own painful history conceived." What began as a protection against acts
or omissions of public authorities in violation of constitutional rights later
Indeed, while amparo (which literally means "protection" in Spanish) has evolved for several purposes: (1) amparo libertad for the protection of
been regarded as a special remedy provided for the enforcement of personal freedom, equivalent to the habeas corpus writ; (2) amparo contra
leyes for the judicial review of the constitutionality of statutes; (3) amparo

94
casacion for the judicial review of the constitutionality and legality of a defend the constitution and enforce our laws, to a high standard of official
judicial decision; (4) amparo administrativo for the judicial review of conduct and hold them accountable to our people. [In this light] [t]he
administrative actions; and (5) amparo agrario for the protection of peasants" sovereign Filipino people should be assured that if their right[s] to life and
rights derived from the agrarian reform process. liberty are threatened or violated, they will find vindication in our courts of
justice."31 Stated differently, the writ of amparo is an extraordinary remedy
In Latin American countries, except Cuba, the writ of amparo has been that is meant to balance out the government's incredible power in order to
constitutionally adopted to protect against human rights abuses especially curtail human rights abuses on its end.
committed in countries under military juntas. In general, these countries
adopted an all-encompassing writ to protect the whole gamut of constitutional Consistent therewith, the delimitation of our current writ of amparo to
rights, including socio-economic rights. Other countries like Colombia, extralegal killings and/or enforced disappearances, or threats thereof, is
Chile, Germany and Spain, however, have chosen to limit the protection of explicit from Section 1 of A.M. No. 07-9-12-SC, which reads:
the writ of amparo only to some constitutional guarantees or fundamental
rights.26 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
In our jurisdiction, the contextual genesis, at least, for the present Amparo with violation by an unlawful act or omission of a public official or employee,
Rule has limited the remedy as a response to extrajudicial killings and or of a private individual or entity.
enforced disappearances, or threats thereof. "Extrajudicial killings,"
according to case law, are generally characterized as "killings committed The writ shall cover extralegal killings and enforced disappearances or threats
without due process of law, i.e., without legal safeguards or judicial thereof.
proceedings,"27 while "enforced disappearances," according to Section 3 (g)
of Republic Act No. 9851,28 otherwise known as the "Philippine Act on While the foregoing rule, as per Section 1 of A.M. No. 07-9-12-SC's first
Crimes Against International Humanitarian Law, Genocide, and Other paragraph, does state that the writ is a remedy to protect the right to life,
Crimes Against Humanity," "means the arrest, detention, or abduction of liberty, and security of the person desiring to avail of it, the same section's
persons by, or with the authorization, support or acquiescence of, a State or a second paragraph qualifies that the protection of such rights specifically
political organization followed by a refusal to acknowledge that deprivation pertain to extralegal killings and enforced disappearances or threats thereof,
of freedom or to give information on the fate or whereabouts of those persons, which are more concrete cases that involve protection to the rights to life,
with the intention of removing from the protection of the law for a prolonged liberty and security. The two paragraphs should indeed be read together in
period of time." In Navia v. Pardico,29 the Court held that it must be shown order to construe the meaning of the provision. Clearly applicable is the
and proved by substantial evidence that the disappearance was carried out by, statutory construction rule that "clauses and phrases must not be taken as
or with the authorization, support or acquiescence of, the State or a political detached and isolated expressions, but the whole and every part thereof must
organization, followed by a refusal to acknowledge the same or give be considered in fixing the meaning of any of its parts in order to produce a
information on the fate or whereabouts of said missing persons, with the harmonious whole. Every part of the statute [or, in this case, procedural rule]
intention of removing them from the protection of the law for a prolonged must be interpreted with reference to the context, i.e., that every part of the
period of time. Simply put, the petitioner in an amparo case has the burden of statute must be considered together with other parts of the statute and kept
proving by substantial evidence the indispensable element of government subservient to the general intent of the whole enactment."32
participation.30 Notably, the same requirement of government participation
should also apply to extralegal killings, considering that the writ of amparo In this case, it is undisputed that petitioners' amparo petition before the RTC
was, according to then Chief Justice Reynato S. Puno, who headed the does not allege any case of extrajudicial killing and/or enforced
Committee on the Revision of the Rules of Court that drafted A.M. No. 07- disappearance, or any threats thereof, in the senses above-described. Their
9-12-SC, intended to "hold public authorities, those who took their oath to petition is merely anchored on a broad invocation of respondents' purported

95
violation of their right to life and security, carried out by private individuals
without any showing of direct or indirect government participation. Thus, it
is apparent that their amparo petition falls outside the purview of A.M. No.
07-9-12-SC and, perforce, must fail. Hence, the RTC, through Judge Singh,
properly exercised its discretion to motu proprio dismiss the same under this
principal determination, regardless of the filing of the May 23, 2012 Motion.
The court, indeed, has the discretion to determine whether or not it has the
authority to grant the relief in the first place. And when it is already apparent
that the petition falls beyond the purview of the rule, it has the duty to dismiss
the petition so as not to prejudice any of the parties through prolonged but
futile litigation.

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

SO ORDERED.chanroblesvirtuallawlibrary

96
representative of the city fiscal contends that it is not an infringement of the
G.R. No. 16444 September 8, 1920 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
EMETERIA VILLAFLOR, petitioner, on an identical question as contended for by the attorney for the accused and
vs. petitioner.
RICARDO SUMMERS, sheriff of the City of Manila, respondent.
The authorities are abundant but conflicting. What may be termed the
Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner. conservative courts emphasize greatly the humanitarianism of the
Assistant City of Fiscal Felix for respondent. 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
MALCOLM, J.: 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
The petitioner prays that a writ of habeas corpus issue to restore her to her Nordstrom [1893], 7 Wash., 506; State vs. Height [1902]. 117 Iowa., 650;
liberty. 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).
The facts are not dispute. In a criminal case pending before the Court of First A woman was charged with the crime of infanticide. The corner directed two
Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco physicians to go to the jail and examine her private parts to determine whether
are charged with the crime of adultery. On this case coming on for trial before she had recently been delivered of a child. She objected to the examination,
the Hon. Pedro Concepcion, Judge of First Instance, upon the petitioner of but being threatened with force, yielded, and the examination was had. The
the assistant fiscal for the city of Manila, the court ordered the defendant evidence of these physicians was offered at the trial and ruled out. The court
Emeteria Villaflor, nor become the petitioner herein, to submit her body to said that the proceeding was in violation of the spirit and meaning of the
the examination of one or two competent doctors to determine if she was Constitution, which declares that "no person shall be compelled in any
pregnant or not. The accused refused to obey the order on the ground that criminal case to be a witness against himself." Continuing, the court said:
such examination of her person was a violation of the constitutional provision "They might as well have sworn the prisoner, and compelled her, by threats,
relating to self-incrimination. Thereupon she was found in contempt of court to testify that she had been pregnant, and had been delivered of a child, as to
and was ordered to be committed to Bilibid Prison until she should permit the have compelled her, by threats, to allow them to look into her person, with
medical examination required by the court. 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
The sole legal issue from the admitted facts is whether the compelling of a to submit to an examination they are of the opinion she is not a virgin, and
woman to permit her body to be examined by physicians to determine if she has had a child? It is not possible that this court has that right; and it is too
is pregnant, violates that portion of the Philippine Bill of Rights and that clear to admit of argument that evidence thus obtained would be inadmissible
portion of our Code of Criminal Procedure which find their origin in the against the prisoner."
Constitution of the United States and practically all state constitutions and in
the common law rules of evidence, providing that no person shall be It may be revealing a judicial secret, but nevertheless we cannot refrain from
compelled in any criminal case to be a witness against himself. (President's saying that, greatly impressed with the weight of these decisions, especially
Instructions to the Philippine Commission; Act of Congress of July 1, 1902, the one written by Mr. Justice McClain, in State vs. Height, supra, the instant
section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; case was reported by the writer with the tentative recommendation that the
paragraph 3; Code of Criminal Procedure, section 15 [4]; United States court should lay down the general rule that a defendant can be compelled to
Constitution, fifth amendment.) Counsel for petitioner argues that such bodily disclose only those parts of the body which are not usually covered. Buth
exhibition is an infringement of the constitutional provision; the having disabused our minds of a too sensitive appreciation of the rights of

97
accused persons, and having been able, as we think, to penetrate through the offered in evidence, none of these even approach in apparent harshness an
maze of law reports to the policy which lies behind the constitutional order to make a woman, possibly innocent, to disclose her body in all of its
guaranty and the common law principle, we have come finally to take our sanctity to the gaze of strangers. We can only consistently consent to the
stand with what we believe to be the reason of the case. retention of a principle which would permit of such a result by adhering
steadfastly to the proposition that the purpose of the constitutional provision
In contradistinction to the cases above-mentioned are others which seem to was and is merely to prohibit testimonial compulsion.
us more progressive in nature. Among these can be prominently mentioned
decisions of the United States Supreme Court, and the Supreme Court of these So much for the authorities. For the nonce we would prefer to forget them
Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in the entirely, and here in the Philippines, being in the agrreable state of breaking
late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an new ground, would rather desire our decision to rest on a strong foundation
objection based upon what he termed "an extravagant extension of the Fifth of reason and justice than on a weak one blind adherence to tradition and
Amendment," said: "The prohibition of compelling a man in a criminal court precedent. Moreover, we believe that an unbiased consideration of the history
to be a witness against himself is a prohibition of the use of physical or moral of the constitutional provisions will disclose that our conclusion is in exact
compulsion to extort communications from him, not an exclusion of his body accord with the causes which led to its adoption.
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 maxim of the common law, Nemo tenetur seipsum accusare, was
The Supreme Court of the Philippine Islands, in two decisions, has seemed recognized in England in early days, but not in the other legal systems of the
to limit the protection to a prohibition against compulsory testimonial self- world, in a revolt against the thumbscrew and the rack. A legal shield was
incrimination. The constitutional limitation was said to be "simply a raised against odious inquisitorial methods of interrogating an accused person
prohibition against legal process to extract from the defendant's own lips, by which to extort unwilling confessions with the ever present temptation to
against his will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 commit the crime of perjury. The kernel of the privilege as disclosed by the
Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory textwriters was testimonial compulsion. As forcing a man to be a witness
principle announced in 16 Corpus Juris, 567, 568, citing the United States against himself was deemed contrary to the fundamentals of republican
Supreme Court and the Supreme Court of the Philippine Islands as authority.) government, the principle was taken into the American Constitutions, and
from the United States was brought to the Philippine Islands, in exactly as
Although we have stated s proposition previously announced by this court wide — but no wider — a scope as it existed in old English days. The
and by the highest tribunal in the United States, we cannot unconcernedly provision should here be approached in no blindly worshipful spirit, but with
leave the subject without further consideration. Even in the opinion Mr. a judicious and a judicial appreciation of both its benefits and its abuses.
Justice Holmes, to which we have alluded, there was inserted the careful (Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p.
proviso that "we need not consider how far a court would go in compelling a 71, and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on Evidence, pp.
man to exhibit himself." Other courts have likewise avoided any attempt to 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.)
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 Perhaps the best way to test the correctness of our position is to go back once
presented what would seem to be the most extreme case which could be more to elements and ponder on what is the prime purpose of a criminal trial.
imagined. While the United States Supreme Court could nonchalantly decree As we view it, the object of having criminal laws is to purgue the community
that testimony that an accused person put on a blouse and it fitted him is not of persons who violate the laws to the great prejudice of their fellow men.
a violation of the constitutional provision, while the Supreme Court of Criminal procedure, the rules of evidence, and constitutional provisions, are
Nuevada could go so far as to require the defendant to roll up his sleeve in then provided, not to protect the guilty but to protect the innocent. No rule is
order to disclose tattoo marks, and while the Supreme Court of the Philippine intemended to be so rigid as to embarrass the administration of justice in its
Islands could permit substances taken from the person of an accused to be endeavor to ascertain the truth. No accused person should be afraid of the use

98
of any method which will tend to establish the truth. For instance, under the the accused is permissible. The proviso is that torture of force shall be
facts before us, to use torture to make the defendant admit her guilt might avoided. Whether facts fall within or without the rule with its corollary and
only result in including her to tell a falsehood. But no evidence of physical proviso must, of course, be decided as cases arise.
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. It is a reasonable presumption that in an examination by reputable and
disinterested physicians due care will be taken not to use violence and not to
Obviously a stirring plea can be made showing that under the due process of embarass the patient any more than is absolutely necessary. Indeed, no
law cause of the Constitution every person has a natural and inherent right to objection to the physical examination being made by the family doctor of the
the possession and control of his own body. It is extremely abhorrent to one's accused or by doctor of the same sex can be seen.
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 Although the order of the trial judge, acceding to the request of the assistant
gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], fiscal for an examination of the person of the defendant by physicians was
141 U. S., 250) said, "To compel any one, and especially a woman, to lay phrased in absolute terms, it should, nevertheless, be understood as subject to
bare the body, or to submit to the touch of a stranger, without lawful authority, the limitations herein mentioned, and therefore legal. The writ of habeas
is an indignity, an assault, and a trespass." Conceded, and yet, as well corpus prayed for is hereby denied. The costs shall be taxed against the
suggested by the same court, even superior to the complete immunity of a petitioner. So ordered.
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 Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.
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

99
G.R. No. 32025 September 23, 1929
Therefore, the question raised is to be decided by examining whether the
FRANCISCO BELTRAN, petitioner, constitutional provision invoked by the petitioner prohibits compulsion to
vs. execute what is enjoined upon him by the order against which these
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO proceedings were taken.
JOSE, Provincial Fiscal of Isabela, respondents.
Said provision is found in paragraph 3, section 3 of the Jones Law which (in
Gregorio P. Formoso and Vicente Formoso for petitioner. Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun proceso
The respondents in their own behalf. criminal" and has been incorporated in our Criminal Procedure (General
Orders, No. 58) in section 15 (No. 4 ) and section 56.
ROMUALDEZ, J.:
As to the extent of the privilege, it should be noted first of all, that the English
This is a petition for a writ of prohibition, wherein the petitioner complains text of the Jones Law, which is the original one, reads as follows: "Nor shall
that the respondent judge ordered him to appear before the provincial fiscal be compelled in any criminal case to be a witness against himself."
to take dictation in his own handwriting from the latter.
This text is not limited to declaracion but says "to be a witness." Moreover,
The order was given upon petition of said fiscal for the purpose of comparing as we are concerned with a principle contained both in the Federal
the petitioner's handwriting and determining whether or not it is he who wrote constitution and in the constitutions of several states of the United States, but
certain documents supposed to be falsified. expressed differently, we should take it that these various phrasings have a
common conception.
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 In the interpretation of the principle, nothing turns upon the variations of
the remedy applied for, inasmuch as the order prayed for by the provincial wording in the constitutional clauses; this much is conceded (ante, par. 2252).
fiscal and later granted by the court below, and again which the instant action It is therefore immaterial that the witness is protected by one constitution
was brought, is based on the provisions of section 1687 of the Administrative from 'testifying', or by another from 'furnishing evidence', or by another from
Code and on the doctrine laid down in the cases of People vs. Badilla (48 'giving evidence,' or by still another from 'being a witness.' These various
Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong phrasings have a common conception, in respect to the form of the protected
Siu Hong (36 Phil., 735), cited by counsel for the respondents, and in the case disclosure. What is that conception? (4 Wigmore on Evidence, p. 863, 1923
of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in ed.)
question.
As to its scope, this privilege is not limited precisely to testimony, but extends
Of course, the fiscal under section 1687 of the Administrative Code, and the to all giving or furnishing of evidence.
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 The rights intended to be protected by the constitutional provision that no
exercised without prejudice to the constitutional rights of persons cited to man accused of crime shall be compelled to be a witness against himself is
appear. so sacred, and the pressure toward their relaxation so great when the suspicion
of guilt is strong and the evidence obscure, that is the duty of courts liberally
And the petitioner, in refusing to perform what the fiscal demanded, seeks to construe the prohibition in favor of personal rights, and to refuse to permit
refuge in the constitutional provision contained in the Jones Law and any steps tending toward their invasion. Hence, there is the well-established
incorporated in General Orders, No. 58. doctrine that the constitutional inhibition is directed not merely to giving of

100
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 We cite this case particularly because the court there gives prominence to the
accused has a right to hold secret. (28 R. C. L., paragraph 20, page 434 and defendant's right to decline to write, and to the fact that he voluntarily wrote.
notes.) (Emphasis ours.) The following appears in the body of said decision referred to (page 307 of
the volume cited):
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 The defendant had the legal right to refuse to write for Kinsley. He preferred
handwriting and determining whether he wrote certain documents supposed to accede to the latter's request, and we can discover no ground upon which
to be falsified, constitutes evidence against himself within the scope and the writings thus produced can be excluded from the case. (Emphasis ours.)
meaning of the constitutional provision under examination.
For the reason it was held in the case of First National Bank vs. Robert (41
Whenever the defendant, at the trial of his case, testifying in his own behalf, Mich., 709; 3 N. W., 199), that the defendant could not be compelled to write
denies that a certain writing or signature is in his own hand, he may on cross- his name, the doctrine being stated as follows:
examination be compelled to write in open court in order that the jury maybe
able to compare his handwriting with the one in question. The defendant being sworn in his own behalf denied the endorsement.

It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) He was then cross-examined the question in regard to his having signed
inasmuch as the defendant, in offering himself as witness in his own behalf, papers not in the case, and was asked in particular whether he would not
waived his personal privileges. 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
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where objection, and it is of these rulings that complaint is made. The object of the
the judge asked the defendant to write his name during the hearing, and the questions was to bring into the case extrinsic signatures, for the purpose of
latter did so voluntarily. comparison by the jury, and we think that the judge was correct in ruling
against it.
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 It is true that the eminent Professor Wigmore, in his work cited (volume 4,
information was filed against the petitioner for the supposed falsification, and page 878), says:
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 Measuring or photographing the party is not within the privilege. Nor it is the
view to filing it. And let it further be noted that in the case of Sprouse vs. removal or replacement of his garments or shoes. Nor is the requirement that
Com., the defendant performed the act voluntarily. 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
We have also come upon a case wherein the handwriting or the form of his body . . ." but he cites no case in support of his last assertion on specimens
writing of the defendant was obtained before the criminal action was of handwriting. We note that in the same paragraph 2265, where said authors
instituted against him. We refer to the case of People vs. Molineux (61 treats of "Bodily Exhibition." and under preposition "1. A great variety of
Northeastern Reporter, 286). 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
Neither may it be applied to the instant case, because there, as in the aforesaid no application to the case at bar because there the defendant voluntary gave
case of Sprouse vs. Com., the defendant voluntarily offered to write, to specimens of his handwriting, while here the petitioner refuses to do so and
furnish a specimen of his handwriting.

101
has even instituted these prohibition proceedings that he may not be to the identity or authenticity or origin of the articles produced. (Ibid., pp.
compelled to do so. 864-865.) (Emphasis ours.)

Furthermore, in the case before us, writing is something more than moving It cannot be contended in the present case that if permission to obtain a
the body, or the hands, or the fingers; writing is not a purely mechanical act, specimen of the petitioner's handwriting is not granted, the crime would go
because it requires the application of intelligence and attention; and in the unpunished. Considering the circumstance that the petitioner is a municipal
case at bar writing means that the petitioner herein is to furnish a means to treasurer, according to Exhibit A, it should not be a difficult matter for the
determine whether or not he is the falsifier, as the petition of the respondent fiscal to obtained genuine specimens of his handwriting. But even supposing
fiscal clearly states. Except that it is more serious, we believe the present case it is impossible to obtain specimen or specimens without resorting to the
is similar to that of producing documents or chattels in one's possession. And means complained herein, that is no reason for trampling upon a personal
as to such production of documents or chattels. which to our mind is not so right guaranteed by the constitution. It might be true that in some cases
serious as the case now before us, the same eminent Professor Wigmore, in criminals may succeed in evading the hand of justice, but such cases are
his work cited, says (volume 4, page 864): accidental and do not constitute the raison d' etre of the privilege. This
constitutional privilege exists for the protection of innocent persons.
. . . 2264. Production or Inspection of Documents and Chattels. — 1. It
follows that the production of documents or chattels by a person (whether With respect to the judgments rendered by this court and cited on behalf of
ordinary witness or party-witness) in response to a subpoena, or to a motion the respondents, it should be remembered that in the case of People vs.
to order production, or to other form of process treating him as a witness ( i.e. Badilla (48 Phil., 718), it does not appear that the defendants and other
as a person appearing before a tribunal to furnish testimony on his moral witnesses were questioned by the fiscal against their will, and if they did not
responsibility for truthtelling), may be refused under the protection of the refuse to answer, they must be understood to have waived their constitutional
privilege; and this is universally conceded. (And he cites the case of People privilege, as they could certainly do.
vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)
The privilege not to give self-incriminating evidence, while absolute when
We say that, for the purposes of the constitutional privilege, there is a claimed, maybe waived by any one entitled to invoke it. (28 R. C. L.,
similarity between one who is compelled to produce a document, and one paragraph 29, page 442, and cases noted.)
who is compelled to furnish a specimen of his handwriting, for in both cases,
the witness is required to furnish evidence against himself. 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
And we say that the present case is more serious than that of compelling the substance later used as evidence against him.
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 In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that
exist, and which may identify him as the falsifier. And for this reason the the court preferred to rest its decision on the reason of the case rather than on
same eminent author, Professor Wigmore, explaining the matter of the blind adherence to tradition. The said reason of the case there consisted in
production of documents and chattels, in the passage cited, adds: 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
For though the disclosure thus sought be not oral in form, and though the petitioner therein to furnish evidence by means of testimonial act. In reality
documents or chattels be already in existence and not desired to be first she was not compelled to execute any positive act, much less a testimonial
written and created by testimonial act or utterance of the person in response act; she was only enjoined from something preventing the examination; all of
to the process, still no line can be drawn short of any process which treats which is very different from what is required of the petitioner of the present
him as a witness; because in virtue it would be at any time liable to make oath case, where it is sought to compel him to perform a positive, testimonial act,

102
to write and give a specimen of his handwriting for the purpose of
comparison. Besides, in the case of Villamor vs. Summers, it was sought to
exhibit something already in existence, while in the case at bar, the question
deals with something not yet in existence, and it is precisely sought to compel
the petitioner to make, prepare, or produce by this means, evidence not yet in
existence; in short, to create this evidence which may seriously incriminate
him.

Similar considerations suggest themselves to us with regard to the case of


United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was
not compelled to perform any testimonial act, but to take out of his mouth the
morphine he had there. It was not compelling him to testify or to be a witness
or to furnish, much less make, prepare, or create through a testimonial act,
evidence for his own condemnation.

Wherefore, we find the present action well taken, and it is ordered that the
respondents and those under their orders desist and abstain absolutely and
forever from compelling the petitioner to take down dictation in his
handwriting for the purpose of submitting the latter for comparison.

Without express pronouncement as to costs. So ordered.

103
[G.R. No. 162571. June 15, 2005] In his amended answer, Arnel denied having sired Martin because his affair
and intimacy with Fe had allegedly ended in 1998, long before Martins
ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND conception. He claimed that Fe had at least one other secret lover. Arnel
MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS admitted that their relationship started in 1993 but he never really fell in love
MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents. with (Fe) not only because (she) had at least one secret lover, a certain Jun,
but also because she proved to be scheming and overly demanding and
DECISION possessive. As a result, theirs was a stormy on-and-off affair. What started as
a romantic liaison between two consenting adults eventually turned out to be
CORONA, J.: a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the
point of even entertaining the idea of marrying him, that she resorted to
At issue in this petition for certiorari [1] is whether or not the Court of various devious ways and means to alienate (him) from his wife and family.
Appeals (CA) gravely erred in exercising its discretion, amounting to lack or Unable to bear the prospect of losing his wife and children, Arnel terminated
excess of jurisdiction, in issuing a decision[2] and resolution[3] upholding the affair although he still treated her as a friend such as by referring potential
the resolution and order of the trial court,[4] which denied petitioners motion customers to the car aircon repair shop[7] where she worked. Later on, Arnel
to dismiss private respondents complaint for support and directed the parties found out that Fe had another erstwhile secret lover. In May 2000, Arnel and
to submit themselves to deoxyribonucleic acid (DNA) paternity testing. his entire family went to the United States for a vacation. Upon their return
in June 2000, Arnel learned that Fe was telling people that he had
Respondents Fe Angela and her son Martin Prollamante sued Martins alleged impregnated her. Arnel refused to acknowledge the child as his because their
biological father, petitioner Arnel L. Agustin, for support and support last intimacy was sometime in 1998.[8] Exasperated, Fe started calling Arnels
pendente lite before the Regional Trial Court (RTC) of Quezon City, Branch wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills
106.[5] Golf and Country Club parking lot to demand that he acknowledge Martin as
his child. According to Arnel, he could not get through Fe and the discussion
In their complaint, respondents alleged that Arnel courted Fe in 1992, after became so heated that he had no alternative but to move on but without
which they entered into an intimate relationship. Arnel supposedly bumping or hitting any part of her body.[9] Finally, Arnel claimed that the
impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnels signature and the community tax certificate (CTC) attributed to him in the
insistence on abortion, Fe decided otherwise and gave birth to their child out acknowledgment of Martins birth certificate were falsified. The CTC
of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in erroneously reflected his marital status as single when he was actually
Quezon City. The babys birth certificate was purportedly signed by Arnel as married and that his birth year was 1965 when it should have been 1964.[10]
the father. Arnel shouldered the pre-natal and hospital expenses but later
refused Fes repeated requests for Martins support despite his adequate In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having
financial capacity and even suggested to have the child committed for sired Martin but expressed willingness to consider any proposal to settle the
adoption. Arnel also denied having fathered the child. case.[11]

On January 19, 2001, while Fe was carrying five-month old Martin at the On July 23, 2002, Fe and Martin moved for the issuance of an order directing
Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van, all the parties to submit themselves to DNA paternity testing pursuant to Rule
with the open car door hitting Fes leg. This incident was reported to the 28 of the Rules of Court.[12]
police. In July 2001, Fe was diagnosed with leukemia and has, since then,
been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel Arnel opposed said motion by invoking his constitutional right against self-
for support.[6] incrimination.[13] He also moved to dismiss the complaint for lack of cause
of action, considering that his signature on the birth certificate was a forgery

104
and that, under the law, an illegitimate child is not entitled to support if not Martin are strangers to each other and Martin has no right to demand and
recognized by the putative father.[14] In his motion, Arnel manifested that he petitioner has no obligation to give support.
had filed criminal charges for falsification of documents against Fe (I.S. Nos.
02-5723 and 02-7192) and a petition for cancellation of his name appearing Preliminaries aside, we now tackle the main issues.
in Martins birth certificate (docketed as Civil Case No. Q-02-46669). He
attached the certification of the Philippine National Police Crime Laboratory Petitioner refuses to recognize Martin as his own child and denies the
that his signature in the birth certificate was forged. genuineness and authenticity of the childs birth certificate which he
purportedly signed as the father. He also claims that the order and resolution
The trial court denied the motion to dismiss the complaint and ordered the of the trial court, as affirmed by the Court of Appeals, effectively converted
parties to submit themselves to DNA paternity testing at the expense of the the complaint for support to a petition for recognition, which is supposedly
applicants. The Court of Appeals affirmed the trial court. proscribed by law. According to petitioner, Martin, as an unrecognized child,
has no right to ask for support and must first establish his filiation in a
Thus, this petition. separate suit under Article 283[17] in relation to Article 265[18] of the Civil
Code and Section 1, Rule 105[19] of the Rules of Court.
In a nutshell, petitioner raises two issues: (1) whether a complaint for support
can be converted to a petition for recognition and (2) whether DNA paternity The petitioners contentions are without merit.
testing can be ordered in a proceeding for support without violating
petitioners constitutional right to privacy and right against self- The assailed resolution and order did not convert the action for support into
incrimination.[15] one for recognition but merely allowed the respondents to prove their cause
of action against petitioner who had been denying the authenticity of the
The petition is without merit. documentary evidence of acknowledgement. But even if the assailed
resolution and order effectively integrated an action to compel recognition
First of all, the trial court properly denied the petitioners motion to dismiss with an action for support, such was valid and in accordance with
because the private respondents complaint on its face showed that they had a jurisprudence. In Tayag v. Court of Appeals,[20] we allowed the integration
cause of action against the petitioner. The elements of a cause of action are: of an action to compel recognition with an action to claim ones inheritance:
(1) the plaintiffs primary right and the defendants corresponding primary
duty, and (2) the delict or wrongful act or omission of the defendant, by which In Paulino, we held that an illegitimate child, to be entitled to support and
the primary right and duty have been violated. The cause of action is successional rights from the putative or presumed parent, must prove his
determined not by the prayer of the complaint but by the facts alleged.[16] filiation to the latter. We also said that it is necessary to allege in the
complaint that the putative father had acknowledged and recognized the
In the complaint, private respondents alleged that Fe had amorous relations illegitimate child because such acknowledgment is essential to and is the
with the petitioner, as a result of which she gave birth to Martin out of basis of the right to inherit. There being no allegation of such
wedlock. In his answer, petitioner admitted that he had sexual relations with acknowledgment, the action becomes one to compel recognition which
Fe but denied that he fathered Martin, claiming that he had ended the cannot be brought after the death of the putative father. The ratio decidendi
relationship long before the childs conception and birth. It is undisputed and in Paulino, therefore, is not the absence of a cause of action for failure of the
even admitted by the parties that there existed a sexual relationship between petitioner to allege the fact of acknowledgment in the complaint, but the
Arnel and Fe. The only remaining question is whether such sexual prescription of the action.
relationship produced the child, Martin. If it did, as respondents have alleged,
then Martin should be supported by his father Arnel. If not, petitioner and Applying the foregoing principles to the case at bar, although petitioner
contends that the complaint filed by herein private respondent merely alleges

105
that the minor Chad Cuyugan is an illegitimate child of the deceased and is of suits, given how intimately related the main issues in both cases are. To
actually a claim for inheritance, from the allegations therein the same may be paraphrase Tayag, the declaration of filiation is entirely appropriate to these
considered as one to compel recognition. Further, that the two causes of proceedings.
action, one to compel recognition and the other to claim inheritance, may be
joined in one complaint is not new in our jurisprudence. On the second issue, petitioner posits that DNA is not recognized by this
Court as a conclusive means of proving paternity. He also contends that
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 compulsory testing violates his right to privacy and right against self-
Phil. 763 [1922]) wherein we said: incrimination as guaranteed under the 1987 Constitution. These contentions
have no merit.
The question whether a person in the position of the present plaintiff can in
any event maintain a complex action to compel recognition as a natural child Given that this is the very first time that the admissibility of DNA testing as
and at the same time to obtain ulterior relief in the character of heir, is one a means for determining paternity has actually been the focal issue in a
which in the opinion of this court must be answered in the affirmative, controversy, a brief historical sketch of our past decisions featuring or
provided always that the conditions justifying the joinder of the two distinct mentioning DNA testing is called for.
causes of action are present in the particular case. In other words, there is no
absolute necessity requiring that the action to compel acknowledgment In the 1995 case of People v. Teehankee[21] where the appellant was
should have been instituted and prosecuted to a successful conclusion prior convicted of murder on the testimony of three eyewitnesses, we stated as an
to the action in which that same plaintiff seeks additional relief in the obiter dictum that while eyewitness identification is significant, it is not as
character of heir. Certainly, there is nothing so peculiar to the action to accurate and authoritative as the scientific forms of identification evidence
compel acknowledgment as to require that a rule should be here applied such as the fingerprint or the DNA test result (emphasis supplied).
different from that generally applicable in other cases. x x x
Our faith in DNA testing, however, was not quite so steadfast in the previous
The conclusion above stated, though not heretofore explicitly formulated by decade. In Pe Lim v. Court of Appeals,[22] promulgated in 1997, we
this court, is undoubtedly to some extent supported by our prior decisions. cautioned against the use of DNA because DNA, being a relatively new
Thus, we have held in numerous cases, and the doctrine must be considered science, (had) not as yet been accorded official recognition by our courts.
well settled, that a natural child having a right to compel acknowledgment, Paternity (would) still have to be resolved by such conventional evidence as
but who has not been in fact legally acknowledged, may maintain partition the relevant incriminating acts, verbal and written, by the putative father.
proceedings for the division of the inheritance against his coheirs x x x; and
the same person may intervene in proceedings for the distribution of the estate In 2001, however, we opened the possibility of admitting DNA as evidence
of his deceased natural father, or mother x x x. In neither of these situations of parentage, as enunciated in Tijing v. Court of Appeals:[23]
has it been thought necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is that in partition suits and A final note. Parentage will still be resolved using conventional methods
distribution proceedings the other persons who might take by inheritance are unless we adopt the modern and scientific ways available. Fortunately, we
before the court; and the declaration of heirship is appropriate to such have now the facility and expertise in using DNA test for identification and
proceedings. (Underscoring supplied) parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to
Although the instant case deals with support rather than inheritance, as in conduct DNA typing using short tandem repeat (STR) analysis. The analysis
Tayag, the basis or rationale for integrating them remains the same. Whether is based on the fact that the DNA of a child/person has two (2) copies, one
or not respondent Martin is entitled to support depends completely on the copy from the mother and the other from the father. The DNA from the
determination of filiation. A separate action will only result in a multiplicity mother, the alleged father and child are analyzed to establish parentage. Of

106
course, being a novel scientific technique, the use of DNA test as evidence is Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic
still open to challenge. Eventually, as the appropriate case comes, courts information in all living organisms. A persons DNA is the same in each cell
should not hesitate to rule on the admissibility of DNA evidence. For it was and it does not change throughout a persons lifetime; the DNA in a persons
said, that courts should apply the results of science when competently blood is the same as the DNA found in his saliva, sweat, bone, the root and
obtained in aid of situations presented, since to reject said result is to deny shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells.
progress. Most importantly, because of polymorphisms in human genetic structure, no
two individuals have the same DNA, with the notable exception of identical
The first real breakthrough of DNA as admissible and authoritative evidence twins.
in Philippine jurisprudence came in 2002 with our en banc decision in People
v. Vallejo[24] where the rape and murder victims DNA samples from the xxx xxx xxx
bloodstained clothes of the accused were admitted in evidence. We reasoned
that the purpose of DNA testing (was) to ascertain whether an association In assessing the probative value of DNA evidence, courts should consider,
exist(ed) between the evidence sample and the reference sample. The samples inter alia, the following factors: how the samples were collected, how they
collected (were) subjected to various chemical processes to establish their were handled, the possibility of contamination of the samples, the procedure
profile. followed in analyzing the samples, whether proper standards and procedures
were followed in conducting the tests, and the qualification of the analyst who
A year later, in People v. Janson,[25] we acquitted the accused charged with conducted the tests.
rape for lack of evidence because doubts persist(ed) in our mind as to who
(were) the real malefactors. Yes, a complex offense (had) been perpetrated In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified
but who (were) the perpetrators? How we wish we had DNA or other by the prosecution as an expert witness on DNA print or identification
scientific evidence to still our doubts! techniques. Based on Dr. de Ungrias testimony, it was determined that the
gene type and DNA profile of appellant are identical to that of the extracts
In 2004, in Tecson, et al. v. COMELEC[26] where the Court en banc was subject of examination. The blood sample taken from the appellant showed
faced with the issue of filiation of then presidential candidate Fernando Poe that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10
Jr., we stated: and CSF1PO 10/11, which are identical with semen taken from the victims
vaginal canal. Verily, a DNA match exists between the semen found in the
In case proof of filiation or paternity would be unlikely to satisfactorily victim and the blood sample given by the appellant in open court during the
establish or would be difficult to obtain, DNA testing, which examines course of the trial.
genetic codes obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted to. A positive match Admittedly, we are just beginning to integrate these advances in science and
would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court technology in the Philippine criminal justice system, so we must be cautious
has acknowledged the strong weight of DNA testing as we traverse these relatively uncharted waters. Fortunately, we can benefit
from the wealth of persuasive jurisprudence that has developed in other
Moreover, in our en banc decision in People v. Yatar,[27] we affirmed the jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven
conviction of the accused for rape with homicide, the principal evidence for instructive.
which included DNA test results. We did a lengthy discussion of DNA, the
process of DNA testing and the reasons for its admissibility in the context of In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was
our own Rules of Evidence: ruled that pertinent evidence based on scientifically valid principles could be
used as long as it was relevant and reliable. Judges, under Daubert, were
allowed greater discretion over which testimony they would allow at trial,

107
including the introduction of new kinds of scientific techniques. DNA typing Nor does petitioners invocation of his right to privacy persuade us. In Ople v.
is one such novel procedure. Torres,[36] where we struck down the proposed national computerized
identification system embodied in Administrative Order No. 308, we said:
Under Philippine law, evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence. Applying the In no uncertain terms, we also underscore that the right to privacy does not
Daubert test to the case at bar, the DNA evidence obtained through PCR bar all incursions into individual privacy. The right is not intended to stifle
testing and utilizing STR analysis, and which was appreciated by the court a scientific and technological advancements that enhance public service and
quo is relevant and reliable since it is reasonably based on scientifically valid the common good... Intrusions into the right must be accompanied by proper
principles of human genetics and molecular biology. safeguards that enhance public service and the common good.

Significantly, we upheld the constitutionality of compulsory DNA testing and Historically, it has mostly been in the areas of legality of searches and
the admissibility of the results thereof as evidence. In that case, DNA samples seizures,[37] and the infringement of privacy of communication[38] where
from semen recovered from a rape victims vagina were used to positively the constitutional right to privacy has been critically at issue. Petitioners case
identify the accused Joel Kawit Yatar as the rapist. Yatar claimed that the involves neither and, as already stated, his argument that his right against self-
compulsory extraction of his blood sample for DNA testing, as well as the incrimination is in jeopardy holds no water. His hollow invocation of his
testing itself, violated his right against self-incrimination, as embodied in constitutional rights elicits no sympathy here for the simple reason that they
both Sections 12 and 17 of Article III of the Constitution. We addressed this are not in any way being violated. If, in a criminal case, an accused whose
as follows: very life is at stake can be compelled to submit to DNA testing, we see no
reason why, in this civil case, petitioner herein who does not face such dire
The contention is untenable. The kernel of the right is not against all consequences cannot be ordered to do the same.
compulsion, but against testimonial compulsion. The right against self-
incrimination is simply against the legal process of extracting from the lips DNA paternity testing first came to prominence in the United States, where
of the accused an admission of guilt. It does not apply where the evidence it yielded its first official results sometime in 1985. In the decade that
sought to be excluded is not an incrimination but as part of object evidence. followed, DNA rapidly found widespread general acceptance.[39] Several
cases decided by various State Supreme Courts reflect the total assimilation
Over the years, we have expressly excluded several kinds of object evidence of DNA testing into their rules of procedure and evidence.
taken from the person of the accused from the realm of self-incrimination.
These include photographs,[28] hair,[29] and other bodily substances.[30] The case of Wilson v. Lumb[40] shows that DNA testing is so commonly
We have also declared as constitutional several procedures performed on the accepted that, in some instances, ordering the procedure has become a
accused such as pregnancy tests for women accused of adultery,[31] ministerial act. The Supreme Court of St. Lawrence County, New York
expulsion of morphine from ones mouth[32] and the tracing of ones foot to allowed a party who had already acknowledged paternity to subsequently
determine its identity with bloody footprints.[33] In Jimenez v. Caizares,[34] challenge his prior acknowledgment. The Court pointed out that, under the
we even authorized the examination of a womans genitalia, in an action for law, specifically Section 516 of the New York Family Court Act, the Family
annulment filed by her husband, to verify his claim that she was impotent, Court examiner had the duty, upon receipt of the challenge, to order DNA
her orifice being too small for his penis. Some of these procedures were, to tests:[41]
be sure, rather invasive and involuntary, but all of them were constitutionally
sound. DNA testing and its results, per our ruling in Yatar,[35] are now 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity
similarly acceptable. executed pursuant to section one hundred eleven-k of the social services law
or section four thousand one hundred thirty-five-b of the public health law
shall establish the paternity of and liability for the support of a child pursuant

108
to this act. Such acknowledgment must be reduced to writing and filed (c) A determination of paternity made by any other state, whether established
pursuant to section four thousand one hundred thirty-five-b of the public through the parents acknowledgment of paternity or through an
health law with the registrar of the district in which the birth occurred and in administrative or judicial process, must be accorded full faith and credit, if
which the birth certificate has been filed. No further judicial or administrative and only if such acknowledgment meets the requirements set forth in section
proceedings are required to ratify an unchallenged acknowledgment of 452(a)(7) of the social security act.
paternity.
(emphasis supplied)
(b) An acknowledgment of paternity executed pursuant to section one
hundred eleven-k of the social services law or section four thousand one DNA testing also appears elsewhere in the New York Family Court Act:[42]
hundred thirty-five-b of the public health law may be rescinded by either
signators filing of a petition with the court to vacate the acknowledgment 532. Genetic marker and DNA tests; admissibility of records or reports of test
within the earlier of sixty days of the date of signing the acknowledgment or results; costs of tests.
the date of an administrative or a judicial proceeding (including a proceeding
to establish a support order) relating to the child in which either signator is a a) The court shall advise the parties of their right to one or more genetic
party. For purposes of this section, the "date of an administrative or a judicial marker tests or DNA tests and, on the courts own motion or the motion of any
proceeding" shall be the date by which the respondent is required to answer party, shall order the mother, her child and the alleged father to submit to one
the petition. After the expiration of sixty days of the execution of the or more genetic marker or DNA tests of a type generally acknowledged as
acknowledgment, either signator may challenge the acknowledgment of reliable by an accreditation body designated by the secretary of the federal
paternity in court only on the basis of fraud, duress, or material mistake of department of health and human services and performed by a laboratory
fact, with the burden of proof on the party challenging the voluntary approved by such an accreditation body and by the commissioner of health
acknowledgment. Upon receiving a partys challenge to an acknowledgment, or by a duly qualified physician to aid in the determination of whether the
the court shall order genetic marker tests or DNA tests for the determination alleged father is or is not the father of the child. No such test shall be ordered,
of the childs paternity and shall make a finding of paternity, if appropriate, in however, upon a written finding by the court that it is not in the best interests
accordance with this article. Neither signators legal obligations, including the of the child on the basis of res judicata, equitable estoppel, or the presumption
obligation for child support arising from the acknowledgment, may be of legitimacy of a child born to a married woman. The record or report of the
suspended during the challenge to the acknowledgment except for good cause results of any such genetic marker or DNA test ordered pursuant to this
as the court may find. If a party petitions to rescind an acknowledgment and section or pursuant to section one hundred eleven-k of the social services law
if the court determines that the alleged father is not the father of the child, or shall be received in evidence by the court pursuant to subdivision (e) of rule
if the court finds that an acknowledgment is invalid because it was executed forty-five hundred eighteen of the civil practice law and rules where no timely
on the basis of fraud, duress, or material mistake of fact, the court shall vacate objection in writing has been made thereto and that if such timely objections
the acknowledgment of paternity and shall immediately provide a copy of the are not made, they shall be deemed waived and shall not be heard by the court.
order to the registrar of the district in which the childs birth certificate is filed If the record or report of the results of any such genetic marker or DNA test
and also to the putative father registry operated by the department of social or tests indicate at least a ninety-five percent probability of paternity, the
services pursuant to section three hundred seventy-two-c of the social admission of such record or report shall create a rebuttable presumption of
services law. In addition, if the mother of the child who is the subject of the paternity, and shall establish, if unrebutted, the paternity of and liability for
acknowledgment is in receipt of child support services pursuant to title six-A the support of a child pursuant to this article and article four of this act.
of article three of the social services law, the court shall immediately provide
a copy of the order to the child support enforcement unit of the social services (b) Whenever the court directs a genetic marker or DNA test pursuant to this
district that provides the mother with such services. section, a report made as provided in subdivision (a) of this section may be

109
received in evidence pursuant to rule forty-five hundred eighteen of the civil significant obstacle to an illegitimate child's access to child support. The first
practice law and rules if offered by any party. reported results of modern DNA paternity testing did not occur until 1985.
("In fact, since its first reported results in 1985, DNA matching has
(c) The cost of any test ordered pursuant to subdivision (a) of this section progressed to 'general acceptance in less than a decade'"). Of course, while
shall be, in the first instance, paid by the moving party. If the moving party is prior blood-testing methods could exclude some males from being the
financially unable to pay such cost, the court may direct any qualified public possible father of a child, those methods could not affirmatively pinpoint a
health officer to conduct such test, if practicable; otherwise, the court may particular male as being the father. Thus, when the settlement agreement
direct payment from the funds of the appropriate local social services district. between the present parties was entered in 1980, establishing paternity was a
In its order of disposition, however, the court may direct that the cost of any far more difficult ordeal than at present. Contested paternity actions at that
such test be apportioned between the parties according to their respective time were often no more than credibility contests. Consequently, in every
abilities to pay or be assessed against the party who does not prevail on the contested paternity action, obtaining child support depended not merely on
issue of paternity, unless such party is financially unable to pay. (emphasis whether the putative father was, in fact, the child's biological father, but rather
supplied) on whether the mother could prove to a court of law that she was only
sexually involved with one man--the putative father. Allowing parties the
In R.E. v. C.E.W.,[43] a decision of the Mississippi Supreme Court, DNA option of entering into private agreements in lieu of proving paternity
tests were used to prove that H.W., previously thought to be an offspring of eliminated the risk that the mother would be unable meet her burden of proof.
the marriage between A.C.W. and C.E.W., was actually the child of R.E. with
whom C.E.W. had, at the time of conception, maintained an adulterous It is worth noting that amendments to Michigans Paternity law have included
relationship. the use of DNA testing:[46]

In Erie County Department of Social Services on behalf of Tiffany M.H. v. 722.716 Pretrial proceedings; blood or tissue typing determinations as to
Greg G.,[44] the 4th Department of the New York Supreme Courts Appellate mother, child, and alleged father; court order; refusal to submit to typing or
Division allowed G.G., who had been adjudicated as T.M.H.s father by identification profiling; qualifications of person conducting typing or
default, to have the said judgment vacated, even after six years, once he had identification profiling; compensation of expert; result of typing or
shown through a genetic marker test that he was not the childs father. In this identification profiling; filing summary report; objection; admissibility;
case, G.G. only requested the tests after the Department of Social Services, presumption; burden of proof; summary disposition.
six years after G.G. had been adjudicated as T.M.H.s father, sought an
increase in his support obligation to her. Sec. 6.

In Greco v. Coleman,[45] the Michigan Supreme Court while ruling on the (1) In a proceeding under this act before trial, the court, upon application
constitutionality of a provision of law allowing non-modifiable support made by or on behalf of either party, or on its own motion, shall order that
agreements pointed out that it was because of the difficulty of determining the mother, child, and alleged father submit to blood or tissue typing
paternity before the advent of DNA testing that such support agreements were determinations, which may include, but are not limited to, determinations of
necessary: red cell antigens, red cell isoenzymes, human leukocyte antigens, serum
proteins, or DNA identification profiling, to determine whether the alleged
As a result of DNA testing, the accuracy with which paternity can be proven father is likely to be, or is not, the father of the child. If the court orders a
has increased significantly since the parties in this lawsuit entered into their blood or tissue typing or DNA identification profiling to be conducted and a
support agreement(current testing methods can determine the probability of party refuses to submit to the typing or DNA identification profiling, in
paternity to 99.999999% accuracy). However, at the time the parties before addition to any other remedies available, the court may do either of the
us entered into the disputed agreement, proving paternity was a very following:

110
In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota Supreme Court upheld
(a) Enter a default judgment at the request of the appropriate party. an order for genetic testing given by the Court of Appeals, even after trial on
the merits had concluded without such order being given. Significantly, when
(b) If a trial is held, allow the disclosure of the fact of the refusal unless good J.C.F., the mother, first filed the case for paternity and support with the
cause is shown for not disclosing the fact of refusal. District Court, neither party requested genetic testing. It was only upon appeal
from dismissal of the case that the appellate court remanded the case and
(2) A blood or tissue typing or DNA identification profiling shall be ordered the testing, which the North Dakota Supreme Court upheld.
conducted by a person accredited for paternity determinations by a nationally
recognized scientific organization, including, but not limited to, the American The case of Kohl v. Amundson,[49] decided by the Supreme Court of South
association of blood banks. Dakota, demonstrated that even default judgments of paternity could be
vacated after the adjudicated father had, through DNA testing, established
xxx xxx xxx non-paternity. In this case, Kohl, having excluded himself as the father of
Amundsons child through DNA testing, was able to have the default
(5) If the probability of paternity determined by the qualified person judgment against him vacated. He then obtained a ruling ordering Amundson
described in subsection (2) conducting the blood or tissue typing or DNA to reimburse him for the amounts withheld from his wages for child support.
identification profiling is 99% or higher, and the DNA identification profile The Court said (w)hile Amundson may have a remedy against the father of
and summary report are admissible as provided in subsection (4), paternity is the child, she submit(ted) no authority that require(d) Kohl to support her
presumed. If the results of the analysis of genetic testing material from 2 or child. Contrary to Amundson's position, the fact that a default judgment was
more persons indicate a probability of paternity greater than 99%, the entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a
contracting laboratory shall conduct additional genetic paternity testing until money judgment for the amount withheld from his wages.
all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or
more putative fathers who have identical DNA. In M.A.S. v. Mississippi Dept. of Human Services,[50] another case decided
by the Supreme Court of Mississippi, it was held that even if paternity was
(6) Upon the establishment of the presumption of paternity as provided in established through an earlier agreed order of filiation, child support and
subsection (5), either party may move for summary disposition under the visitation orders could still be vacated once DNA testing established someone
court rules. this section does not abrogate the right of either party to child other than the named individual to be the biological father. The Mississippi
support from the date of birth of the child if applicable under section 7. High Court reiterated this doctrine in Williams v. Williams.[51]
(emphasis supplied)
The foregoing considered, we find no grave abuse of discretion on the part of
In Rafferty v. Perkins,[47] the Supreme Court of Mississippi ruled that DNA the public respondent for upholding the orders of the trial court which both
test results showing paternity were sufficient to overthrow the presumption denied the petitioners motion to dismiss and ordered him to submit himself
of legitimacy of a child born during the course of a marriage: for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the
remedy of certiorari is only available when any tribunal, board or officer has
The presumption of legitimacy having been rebutted by the results of the acted without or in excess of its or his jurisdiction, or with grave abuse of
blood test eliminating Perkins as Justin's father, even considering the discretion amounting to lack or excess of jurisdiction, and there is no appeal,
evidence in the light most favorable to Perkins, we find that no reasonable nor any plain, speedy and adequate remedy in the ordinary course of law.[52]
jury could find that Easter is not Justin's father based upon the 99.94% In Land Bank of the Philippines v. the Court of Appeals[53] where we
probability of paternity concluded by the DNA testing. dismissed a special civil action for certiorari under Rule 65, we discussed at
length the nature of such a petition and just what was meant by grave abuse
of discretion:

111
abandoned progeny. We have long believed in the merits of DNA testing and
Grave abuse of discretion implies such capricious and whimsical exercise of have repeatedly expressed as much in the past. This case comes at a perfect
judgment as is equivalent to lack of jurisdiction or, in other words, where the time when DNA testing has finally evolved into a dependable and
power is exercised in an arbitrary manner by reason of passion, prejudice, or authoritative form of evidence gathering. We therefore take this opportunity
personal hostility, and it must be so patent or gross as to amount to an evasion to forcefully reiterate our stand that DNA testing is a valid means of
of a positive duty or to a virtual refusal to perform the duty enjoined or to act determining paternity.
at all in contemplation of law.
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The
The special civil action for certiorari is a remedy designed for the correction Court of Appeals decision dated January 28, 2004 in CA-G.R. SP No. 80961
of errors of jurisdiction and not errors of judgment. The raison detre for the is hereby AFFIRMED in toto.
rule is when a court exercises its jurisdiction, an error committed while so
engaged does not deprive it of the jurisdiction being exercised when the error Costs against petitioner.
is committed. If it did, every error committed by a court would deprive it of
its jurisdiction and every erroneous judgment would be a void judgment. In
such a scenario, the administration of justice would not survive. Hence, where
the issue or question involved affects the wisdom or legal soundness of the
decisionnot the jurisdiction of the court to render said decisionthe same is
beyond the province of a special civil action for certiorari.

The proper recourse of the aggrieved party from a decision of the CA is a


petition for review on certiorari under Rule 45 of the Revised Rules of Court.
On the other hand, if the error subject of the recourse is one of jurisdiction,
or the act complained of was perpetrated by a quasi-judicial officer or agency
with grave abuse of discretion amounting to lack or excess of jurisdiction, the
proper remedy available to the aggrieved party is a petition for certiorari
under Rule 65 of the said Rules. (emphasis supplied)

In the instant case, the petitioner has in no way shown any arbitrariness,
passion, prejudice or personal hostility that would amount to grave abuse of
discretion on the part of the Court of Appeals. The respondent court acted
entirely within its jurisdiction in promulgating its decision and resolution, and
any error made would have only been an error in judgment. As we have
discussed, however, the decision of the respondent court, being firmly
anchored in law and jurisprudence, was correct.

Epilogue

For too long, illegitimate children have been marginalized by fathers who
choose to deny their existence. The growing sophistication of DNA testing
technology finally provides a much needed equalizer for such ostracized and

112
G.R. No. L-29169 August 19, 1968
On July 23, 1963, trial commenced before the judge presiding Branch IX of
ROGER CHAVEZ, petitioner, the Court of First Instance of Rizal in Quezon City.
vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE The trial opened with the following dialogue, which for the great bearing it
PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, has on this case, is here reproduced:.
respondents.
COURT:
Estanislao E. Fernandez and Fausto Arce for petitioner.
Office of the Solicitor General for respondents. The parties may proceed.

SANCHEZ, J.: FISCAL GRECIA:

The thrust of petitioner's case presented in his original and supplementary Our first witness is Roger Chavez [one of the accused].
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 ATTY. CARBON [Counsel for petitioner Chavez]:
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 I am quite taken by surprise, as counsel for the accused Roger Chavez, with
fail in this, he be granted the alternative remedies of certiorari to strike down this move of the Fiscal in presenting him as his witness. I object.
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 COURT:
to this Court for the reason that he was raising purely questions of law.
On what ground, counsel? .
The indictment in the court below — the third amended information — upon
which the judgment of conviction herein challenged was rendered, was for ATTY. CARBON:
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 On the ground that I have to confer with my client. It is really surprising that
worth P22,200.00. Accused were the following: Petitioner herein, Roger at this stage, without my being notified by the Fiscal, my client is being
Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias presented as witness for the prosecution. I want to say in passing that
"Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, it is only at this very moment that I come to know about this strategy of the
Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul prosecution.
Doe.2
COURT (To the Fiscal):
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, You are not withdrawing the information against the accused Roger Chavez
abuse of confidence and without the consent of the owner thereof, Dy Sun by making [him a] state witness?.
Hiok y Lim, in asporting the motor vehicle above-described.
FISCAL GRECIA:
Upon arraignment, all the accused, except the three Does who have not been
identified nor apprehended, pleaded not guilty.1äwphï1.ñët I am not making him as state witness, Your Honor.

113
I am only presenting him as an ordinary witness. the court feels that the answer of this witness to the question would
incriminate him.
ATTY. CARBON:
Counsel has all the assurance that the court will not require the witness to
As a matter of right, because it will incriminate my client, I object. answer questions which would incriminate him.

COURT: But surely, counsel could not object to have the accused called on the
witnessstand.
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. ATTY. CARBON:

xxx xxx xxx I submit.

COURT: [after the recess] xxx xxx xxx

Are the parties ready? . ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

FISCAL: MAY IT PLEASE THE COURT:

We are ready to call on our first witness, Roger Chavez. 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
ATTY. CARBON: counsel.

As per understanding, the proceeding was suspended in order to enable me to This representation has been apprised of the witnesses embraced in the
confer with my client. information.

I conferred with my client and he assured me that he will not testify for the For which reason I pray this court that I be given at least some days to meet
prosecution this morning after I have explained to him the consequences of whatever testimony this witness will bring about. I therefore move for
what will transpire. postponement of today's hearing.

COURT: COURT:

What he will testify to does not necessarily incriminate him, counsel. The court will give counsel time within which to prepare his cross-
examination of this witness.
And there is the right of the prosecution to ask anybody to act as witness on
the witness-stand including the accused. ATTY. CRUZ:

If there should be any question that is incriminating then that is the time for I labored under the impression that the witnesses for the prosecution in this
counsel to interpose his objection and the court will sustain him if and when criminal case are those only listed in the information.

114
I did not know until this morning that one of the accused will testify as
witness for the prosecution. COURT: The Fiscal may proceed.3

COURT: And so did the trial proceed. It began with the "direct examination" of Roger
Chavez by "Fiscal Grecia".
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 Came the judgment of February 1, 1965. The version of the prosecution as
of this witness. found by the court below may be briefly narrated as follows:

The court will not defer the taking of the direct examination of the witness. A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a
Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor
Call the witness to the witness stand. 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
EVIDENCE FOR THE PROSECUTION and left his address with Chavez. Then, on November 12, Chavez met
Sumilang at a barbershop informed him about the Thunderbird. But Sumilang
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently said that he had changed his mind about buying a new car. Instead, he told
detained at the Manila Police Department headquarters, after being duly Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an
sworn according to law, declared as follows: 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
ATTY. IBASCO [Counsel for defendant Luis Asistio]: 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
WITH THE LEAVE OF THE COURT: 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,
This witness, Roger Chavez is one of the accused in this case No. Q-5311. 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
The information alleges conspiracy. Under Rule 123, Section 12, it states: be a car agent was included in the plan. He furnished the name of Johnson
Lee who was selling his Thunderbird. 1äwphï1.ñët
'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 In the morning of November 14, Chavez telephoned Johnson Lee and
conspiracy is shown by evidence other than such act or declaration.' arranged for an appointment. Sometime in the afternoon. Chavez and
Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was
COURT: 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
That is premature, counsel. Neither the court nor counsels for the accused (P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok,
know what the prosecution events to establish by calling this witness to the in whose name the car was registered. Thereafter, they went to see a lawyer
witness stand. 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
ATTY. IBASCO: the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee
the witnesses thereto.
I submit.

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As payment was to be made at Eugene's restaurant in Quezon City, all of enough funds therefor. Baltazar and Cailles agreed to give the money the
them then drove in the Thunderbird car to that place. The deed of sale and nextday as long as the check would be left with them and Sumilang would
other papers remained in the pockets of Johnson Lee. 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,
At Eugene's, a man approached Sumilang with a note which stated that the Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for
money was ready at the Dalisay Theater. Sumilang then wrote on the same the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
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 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
Then, the two Chinese were left alone in the restaurant. For Sumilang, who Cailles, with a note requesting that they accommodate him once more. He
had left the table to pose for pictures with some fans and come back, again also sent a check, again without funds. Baltazar gave the money after
left never to return. So did Chavez, who disappeared after he left on the verifying the authenticity of the note.
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 On November 14, Chavez appeared at Sumilang's house with the news that
that it was gone. They then immediately reported its loss to the police. Much the car was ready if Sumilang was ready with the rest of the money. So
later, the NBI recovered the already repainted car and impounded it. 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
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged balance upon the car's delivery. It was then that Chavez told Sumilang that
that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak the car was already bought by a Chinese who would be the vendor.
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 The purchase price finally agreed upon between Sumilang and Johnson Lee
14th of November, the registration of the car was transferred in the name of was P21,000.00, plus P500.00 agents commission at the expense of the buyer.
Sumilang in Cavite City, and three days later, in the name of Asistio in Sumilang told Lee that he already paid part of the price to Chavez.
Caloocan.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang
From the court's decision, Ricardo Sumilang's version, corroborated in part accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the
by Asistio, may be condensed as follows: course of their conversation at the bar, Sumilang mentioned the proposed
transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas advised that Sumilang should have a receipt for his money. A certain Bimbo,
station. The latter informed him that there was a Thunderbird from Clark a friend of Pascual, offered to make out a receipt for Chavez to sign.
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. After Sumilang returned from posing for some photographs with some of his
fans, Bimbo showed him the receipt already signed by Chavez. Sumilang
To raise this sum, Sumilang and Chavez, on October 1, went to the house of requested Pascual and Bimbo to sign the receipt as witnesses. And they did.
a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as This receipt was offered as an exhibit by the prosecution and by Sumilang.
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 When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him
City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang the deed of sale, the registration papers and the keys to the car. After shaking
asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid hands with Lee, Sumilang drove away in the car with his driver at the wheel.
on condition that it should not be cashed immediately as there were not

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Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his qualified theft. He was accordingly sentenced to suffer an indeterminate
way to a film shooting at Bulacan. He saw Asistio with many companions. penalty of not less than ten (10) years, one (1) day, as minimum and not more
Asistio liked his Thunderbird parked outside. Asistio offered to buy it from than fourteen (14) years, eight (8) months and one (1) day as maximum, to
him for P22,500.00. As the offer was good, and knowing Asistio's and his indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without
friends' reputation for always getting what they wanted, Sumilang consented subsidiary imprisonment in case of insolvency, to undergo the accessory
to the sale. Asistio tendered a down payment of P1,000.00; the balance he penalties prescribed by law, and to pay the costs. The Thunderbird car then
promised to pay the next day after negotiating with some financing company. in the custody of the NBI was ordered to be turned over to Ricardo Sumilang,
Before said balance could be paid, the car was impounded. 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 trial court gave evidence to Sumilang's averment, strengthened by the car.
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 The foregoing sentence was promulgated on March 8, 1965. Roger Chavez
be a mere buyer of the car. And so, the prosecution's theory of conspiracy appealed to the Court of Appeals.
was discounted.
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez,
As to the other accused, the court found no case against Pedro Rebullo alias counsel for Roger Chavez, to show cause within ten days from notice why
"Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was Chavez' appeal should not be considered abandoned and dismissed. Reason
also acquitted for in the first place he was not identified by Johnson Lee in for this is that said lawyer received notice to file brief on December 28, 1967
court. and the period for the filing thereof lapsed on January 27, 1968 without any
brief having been filed.
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 On May 13, 1968, Atty. Marquez registered a detailed written explanation.
prosecution establishes his guilt beyond reasonable doubt."5 The trial court She also stated that if she were allowed to file appellant's brief she would go
branded him "a self-confessed culprit".6 The court further continued: along with the factual findings of the court below but will show however that
its conclusion is erroneous.8
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 On May 14, 1968, the Court of Appeals, despite the foregoing explanation,
fabrications which he expected would easily stick together what with the resolved to dismiss the appeal. A move to reconsider was unavailing. For, on
newspaper notoriety of one and the sensationalism caused by the other. But June 21, 1968, the Court of Appeals, through a per curiam resolution,
Roger Chavez' accusations of Asistio's participation is utterly disposed to maintain its May 14 resolution dismissing the appeal, directed the
uncorroborated. And coming, as it does, from a man who has had at least two City Warden of Manila where Chavez is confined by virtue of the warrant of
convictions for acts not very different from those charged in this information, arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid
the Court would be too gullible if it were to give full credence to his words Prisons pending execution of the judgment below, and ordered remand of the
even if they concerned a man no less notorious than himself.7 case to the Quezon City court for execution of judgment.

The trial court then came to the conclusion that if Johnson Lee was not paid It was at this stage that the present proceedings were commenced in this
for his car, he had no one but Roger Chavez to blame. Court.

The sum of all these is that the trial court freed all the accused except Roger Upon the petitions, the return, and the reply, and after hearing on oral
Chavez who was found guilty beyond reasonable doubt of the crime of arguments, we now come to grips with the main problem presented.

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impress themselves upon the minds of the American colonists that the states,
We concentrate attention on that phase of the issues which relates petitioner's with one accord, made a denial of the right to question an accused person a
assertion that he was compelled to testify against himself. For indeed if this part of their fundamental law, so that a maxim which in England was a mere
one question is resolved in the affirmative, we need not reach the others; in rule of evidence, became clothed in this country with the impregnability of a
which case, these should not be pursued here. 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
1. Petitioner's plea on this score rests upon his averment, with proof, of this maxim was recognized in England in the early days "in a revolt against
violation of his right — constitutionally entrenched — against self- the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of
incrimination. He asks that the hand of this Court be made to bear down upon this constitutional injunction as "older than the Government of the United
his conviction; that he be relieved of the effects thereof. He asks us to States"; as having "its origin in a protest against the inquisitorial methods of
consider the constitutional injunction that "No person shall be compelled to interrogating the accused person"; and as having been adopted in the
be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Philippines "to wipe out such practices as formerly prevailed in these Islands
Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) of requiring accused persons to submit to judicial examinations, and to give
To be exempt from being a witness against himself." . testimony regarding the offenses with which they were charged."

It has been said that forcing a man to be a witness against himself is at war So it is then that this right is "not merely a formal technical rule the
with "the fundamentals of a republican government"; 10 that [i]t may suit the enforcement of which is left to the discretion of the court"; it is mandatory; it
purposes of despotic power but it can not abide the pure atmosphere of secures to a defendant a valuable and substantive right; 15 it is fundamental
political liberty and personal freedom."11 Mr. Justice Abad Santos recounts to our scheme of justice. Just a few months ago, the Supreme Court of the
the historical background of this constitutional inhibition, thus: " "The maxim United States (January 29, 1968), speaking thru Mr. Justice Harlan warned
Nemo tenetur seipsum accusare had its origin in a protest against the that "[t]he constitutional privilege was intended to shield the guilty and
inquisitorial and manifestly unjust methods of interrogating accused persons, imprudent as well as the innocent and foresighted." 16
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 It is in this context that we say that the constitutional guarantee may not be
barriers for the protection of the people against the exercise of arbitrary treated with unconcern. To repeat, it is mandatory; it secures to every
power, was not uncommon even in England. While the admissions of defendant a valuable and substantive right. Tañada and Fernando
confessions of the prisoner, when voluntarily and freely made, have always (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S.
ranked high in the scale of incriminating evidence, if an accused person be vs. Navarro, supra, which reaffirms the rule that the constitutional
asked to explain his apparent connection with a crime under investigation, proscription was established on broad grounds of public policy and humanity;
the ease with which the questions put to him may assume an inquisitorial of policy because it would place the witness against the strongest temptation
character, the temptation to press, the witness unduly, to browbeat him if he to commit perjury, and of humanity because it would be to extort a confession
be timid or reluctant, to push him into a corner, and to entrap him into fatal of truth by a kind of duress every species and degree of which the law abhors.
contradictions, which is so painfully evident in many of the earlier state trials, 17
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 Therefore, the court may not extract from a defendant's own lips and against
abolition. The change in the English criminal procedure in that particular his will an admission of his guilt. Nor may a court as much as resort to
seems to be founded upon no statute and no judicial opinion, but upon a compulsory disclosure, directly or indirectly, of facts usable against him as a
general and silent acquiescence of the courts in a popular demand. But, confession of the crime or the tendency of which is to prove the commission
however adopted, it has become firmly embedded in English, as well as in of a crime. Because, it is his right to forego testimony, to remain silent, unless
American jurisprudence. So deeply did the iniquities of the ancient system

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he chooses to take the witness stand — with undiluted, unfettered exercise of What he will testify to does not necessarily incriminate him, counsel.
his own free, genuine will.
And there is the right of the prosecution to ask anybody to act as witness on
Compulsion as it is understood here does not necessarily connote the use of the witness-stand including the accused.
violence; it may be the product of unintentional statements. Pressure which
operates to overbear his will, disable him from making a free and rational If there should be any question that is incriminating then that is the time for
choice, or impair his capacity for rational judgment would in our opinion be counsel to interpose his objection and the court will sustain him if and when
sufficient. So is moral coercion "tending to force testimony from the the court feels that the answer of this witness to the question would
unwilling lips of the defendant." 18 incriminate him.

2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a Counsel has all the assurance that the court will not require the witness to
defendant in a criminal case. He was called by the prosecution as the first answer questions which would incriminate him.
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 But surely, counsel could not object to have the accused called on the witness
broadened by the clear cut statement that he will not testify. But petitioner's stand.
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 Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep.
including the accused," and that defense counsel "could not object to have the I, 208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's
accused called on the witness stand." The cumulative impact of all these is knowledge of the facts remains concealed within his bosom, he is safe; but
that accused-petitioner had to take the stand. He was thus peremptorily asked draw it from thence, and he is exposed" — to conviction.
to create evidence against himself. The foregoing situation molds a solid case
for petitioner, backed by the Constitution, the law, and jurisprudence. The judge's words heretofore quoted — "But surely counsel could not object
to have the accused called on the witness stand" — wielded authority. By
Petitioner, as accused, occupies a different tier of protection from an ordinary those words, petitioner was enveloped by a coercive force; they deprived him
witness. Whereas an ordinary witness may be compelled to take the witness of his will to resist; they foreclosed choice; the realities of human nature tell
stand and claim the privilege as each question requiring an incriminating us that as he took his oath to tell the truth, the whole truth and nothing but the
answer is shot at him, 19 and accused may altogether refuse to take the truth, no genuine consent underlay submission to take the witness stand.
witness stand and refuse to answer any and all questions. 20 For, in reality, Constitutionally sound consent was absent.
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 3. Prejudice to the accused for having been compelled over his objections to
certainly inhuman procedure of compelling a person "to furnish the missing be a witness for the People is at once apparent. The record discloses that by
evidence necessary for his conviction." 22 This rule may apply even to a co- leading questions Chavez, the accused, was made to affirm his statement
defendant in a joint trial.23 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
And the guide in the interpretation of the constitutional precept that the (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car.
accused shall not be compelled to furnish evidence against himself "is not the And he himself proceeded to narrate the same anew in open court. He
probability of the evidence but it is the capability of abuse." 24 Thus it is, that identified the Thunderbird car involved in the case. 27
it was undoubtedly erroneous for the trial judge to placate petitioner with
these words:. 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.

119
The trial court described Chavez as the "star witness for the prosecution". The foregoing guidelines, juxtaposed with the circumstances of the case
Indeed, the damaging facts forged in the decision were drawn directly from heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by
the lips of Chavez as a prosecution witness and of course Ricardo Sumilang his own admission, defendant proved his guilt, still, his original claim
for the defense. There are the unequivocal statements in the decision that remains valid. For the privilege, we say again, is a rampart that gives
"even accused Chavez" identified "the very same Thunderbird that Johnson protection - even to the guilty. 30
Lee had offered for sale"; that Chavez "testimony as witness for the
prosecution establishes his guilt beyond reasonable doubt and that Chavez is 5. The course which petitioner takes is correct. Habeas corpus is a high
"a self-confessed culprit". 1äwphï1.ñët prerogative writ. 31 It is traditionally considered as an exceptional remedy to
release a person whose liberty is illegally restrained such as when the
4. With all these, we have no hesitancy in saying that petitioner was forced accused's constitutional rights are disregarded. 32 Such defect results in the
to testify to incriminate himself, in full breach of his constitutional right to absence or loss of jurisdiction 33 and therefore invalidates the trial and the
remain silent. It cannot be said now that he has waived his right. He did not consequent conviction of the accused whose fundamental right was violated.
volunteer to take the stand and in his own defense; he did not offer himself 34 That void judgment of conviction may be challenged by collateral attack,
as a witness; on the contrary, he claimed the right upon being called to testify. which precisely is the function of habeas corpus. 35 This writ may issue even
If petitioner nevertheless answered the questions inspite of his fear of being if another remedy which is less effective may be availed of by the defendant.
accused of perjury or being put under contempt, this circumstance cannot be 36 Thus, failure by the accused to perfect his appeal before the Court of
counted against him. His testimony is not of his own choice. To him it was a Appeals does not preclude a recourse to the writ. 37 The writ may be granted
case of compelled submission. He was a cowed participant in proceedings upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39
before a judge who possessed the power to put him under contempt had he the writ of habeas corpus as an extraordinary remedy must be liberally given
chosen to remain silent. Nor could he escape testifying. The court made it effect 40 so as to protect well a person whose liberty is at stake. The propriety
abundantly clear that his testimony at least on direct examination would be of the writ was given the nod in that case, involving a violation of another
taken right then and thereon the first day of the trial. constitutional right, in this wise:

It matters not that, after all efforts to stave off petitioner's taking the stand Since the Sixth Amendment constitutionally entitles one charged with crime
became fruitless, no objections to questions propounded to him were made. to the assistance of Counsel, compliance with this constitutional mandate is
Here involve is not a mere question of self-incrimination. It is a defendant's an essential jurisdictional prerequisite to a Federal Court's authority. When
constitutional immunity from being called to testify against himself. And the this right is properly waived, the assistance of Counsel is no longer a
objection made at the beginning is a continuing one. 1äwphï1.ñët 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
There is therefore no waiver of the privilege. "To be effective, a waiver must competently and intelligently waived his constitutional right, the Sixth
be certain and unequivocal, and intelligently, understandably, and willingly Amendment stands as a jurisdictional bar to a valid conviction and sentence
made; such waiver following only where liberty of choice has been fully depriving him of his liberty. A court's jurisdiction at the beginning of trial
accorded. After a claim a witness cannot properly be held to have waived his may be lost "in the course of the proceedings" due to failure to complete the
privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. court — as the Sixth Amendment requires — by providing Counsel for an
Zerbst 29 is this: "It has been pointed out that "courts indulge every accused who is unable to obtain Counsel, who has not intelligently waived
reasonable presumption against waiver" of fundamental constitutional rights this constitutional guaranty, and whose life or liberty is at stake. If this
and that we "do not presume acquiescence in the loss of fundamental rights." requirement of the Sixth Amendment is not complied with, the court no
A waiver is ordinarily an intentional relinquishment or abandonment of a longer has jurisdiction to proceed. The judgment of conviction pronounced
known right or privilege." Renuntiatio non praesumitur. by a court without jurisdiction is void, and one imprisoned thereunder may
obtain release of habeas corpus. 41

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Under our own Rules of Court, to grant the remedy to the accused Roger Separate Opinions
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 CASTRO, J., dissenting :
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 In 1901, early in the history of constitutional government in this country, this
rightful custody of any person is withheld from the person entitled thereto. Court reversed the conviction of an accused who, having pleaded "not guilty,"
was required by the judge to testify and answer the complaint. The case was
Just as we are about to write finis to our task, we are prompted to restate that: that of United States v. Junio, reported in the first volume of the Philippine
"A void judgment is in legal effect no judgment. By it no rights are divested. Reports, on page 50 thereof.
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 Resolution of the case did not require an extended opinion (it consumed no
acts performed under it and all claims flowing out of it are void. The parties more than a page in the Reports). For indeed the facts fitted exactly into the
attempting to enforce it may be responsible as trespassers. ... " 42 prohibition contained in The President's Instruction to the (Second)
Philippine Commission1 "that no person shall ... be compelled in any criminal
6. Respondents' return 43 shows that petitioner is still serving under a final case to be a witness against himself.".
and valid judgment of conviction for another offense. We should guard
against the improvident issuance of an order discharging a petitioner from There was no need either for a dissertation on the Rights of Man, though
confinement. The position we take here is that petitioner herein is entitled to occasion for this was not lacking as the predominant American members of
liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the the Court were under a special commission to prepare the Filipinos for self-
Court of First Instance of Rizal, Quezon City Branch, under which he was government. The privilege against self-incrimination was fully understood by
prosecuted and convicted. the Filipinos, whose own history provided the necessary backdrop for this
privilege. 2
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 The Supreme Court simply said, "The judge had no right to compel the
or any other officer or person in custody of petitioner Roger Chavez by reason accused to make any statement whatever," and declared the proceedings void.
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. Nor was there a similar judicial error likely to be committed in the years to
Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from come, what with the constant reminder of a Bill of Rights enshrined in
custody, unless he is held, kept in custody or detained for any cause or reason successive organic acts intended for the Philippines.3 This is not to say that
other than the said judgment in said Criminal Case Q-5311 of the Court of the Philippine history of the privilege ended with the Junio case. To be sure,
First Instance of Rizal, Quezon City Branch, in which event the discharge violations of the privilege took other, and perhaps subtle, forms4 but not the
herein directed shall be effected when such other cause or reason ceases to form directly prohibited by the privilege. Even in the recent case of Cabal v.
exist. Kapunan5 it was assumed as a familiar learning that the accused in a criminal
case cannot be required to give testimony and that if his testimony is needed
No costs. So ordered. at all against his co-accused, he must first be discharged.6 If Cabal, the
respondent in an administrative case, was required by an investigating
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and committee to testify, it was because it was thought that proceedings for
Fernando, JJ., concur. Castro, J., concurs in a separate opinion. forfeiture of illegally acquired property under Republic Act 13797 were civil

121
and not criminal in nature. Thus Mr. Justice (now Chief Justice) Concepcion
could confidently say: The Government must thus establish guilt by evidence independently and
freely secured; it can not by coercion prove a charge against an accused out
At the outset, it is not disputed that the accused in a criminal case may refuse of his own mouth. 14
not only to answer incriminatory questions but also to take the witness stand.
(3 Whartons Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, This is not what was done here. What was done here was to force the
the issue before us boils down to whether or not the proceedings before the petitioner to take the witness stand and state his part in the crime charged as
aforementioned Committee is civil or criminal in character. "star witness for the prosecution," to use the very words of the decision, and,
by means of his testimony, prove his guilt. Thus, the trial court said in its
Today, perhaps because of long separation from our past, we need what decision:
Holmes called "education in the obvious, more than investigation of the
obscure."8 The past may have receded so far into the distance that our Roger Chavez does not offer any defense. As a matter of fact, his testimony
perspectives may have been altered and our vision blurred. as a witness for the prosecution establishes his guilt beyond reasonable doubt.

When the court in the case at bar required the petitioner to testify, it in effect The petitioner has been variously described by the trial court as "a car agent
undid the libertarian gains made over half a century and overturned the settled ... well versed in this kind of chicanery" "a self-confessed culprit," and "a man
law. The past was recreated with all its vividness and all its horrors: John with at least two convictions for acts not very different from those charged in
Lilburne in England in 1637, refusing to testify before the Council of the Star [the] information." But if he has thus been described it was on the basis of
Chamber and subsequently condemned by it to be whipped and pilloried for evidence wrung from his lips. If he was ultimately found guilty of the charge
his "boldness in refusing to take a legal oath;"9 the Filipino priests Gomez, against him it was because of evidence which he was forced to give. In truth
Burgos and Zamora in 1872 condemned by the Inquisition to die by their own he was made the "star witness for the prosecution" against himself.
testimony. 10
But neither torture nor an oath nor the threat of punishment such as
It is for this reason that I deem this occasion important for the expression of imprisonment for contempt can be used to compel him to provide the
my views on the larger question of constitutional dimension. evidence to convict himself. No matter how evil he is, he is still a human
being.
No doubt the constitutional provision that "No person shall be compelled to
be a witness against himself" 11 may, on occasion, save a guilty man from The fact that the judgment of conviction became final with the dismissal of
his just deserts, but it is aimed against a more far reaching evil — recurrence the appeal to the Court of Appeals for failure of the petitioner's former
of the Inquisition and the Star Chamber, even if not in their stark brutality. counsel to file a brief,15 is of no moment. That judgment is void, and it is
Prevention of the greater evil was deemed of more importance than precisely the abiding concern of the writ of habeas corpus to provide redress
occurrence of the lesser evil. 12 As Dean Griswold put the matter with for unconstitutional and wrongful convictions. Vindication of due process, it
eloquence:. has been well said, is precisely the historic office of the Great Writ. 16

[T]he privilege against self-incrimination is one of the great landmarks in In many respects, this case is similar to that of Fay v. Noia. 17 Noia was
man's struggle to make himself civilized ... [W]e do not make even the most convicted of murder in 1942 with Santo Caminito and Frank Bonino in the
hardened criminal sign his own death warrant, or dig his own grave, or pull County Court of Kings County, New York, in the killing of one Hemmeroff
the lever that springs the trap on which he stands. We have through the course during the commission of a robbery. The sole evidence against each
of history developed considerable feeling of the dignity and intrinsic defendant was his signed confession. Caminito and Bonino, but not Noia
importance of the individual man. Even the evil man is a human being. 13 appealed their convictions to the Appellate Division of the New York

122
Supreme Court. These appeals were unsuccessful but subsequent legal society, habeas corpus is predestined by its historical role in the struggle for
proceedings resulted in the releases of Caminito and Bonino upon findings personal liberty to be the ultimate remedy. If the States withhold effective
that their confessions had been coerced and their conviction therefore remedy, the federal courts have the power and the duty to provide it. Habeas
procured in violation of the Fourteenth Amendment. Although Noia's Corpus is one of the precious heritages of Anglo-American civilization. We
confession was found to have been coerced, the United States District Court do no more today than confirm its continuing efficacy.
for the Southern District of New York held that, because of Noia's failure to
appeal, he must be denied reliefin view of the provision of 28 U.S.C. sec. A fitting conclusion of this separate opinion may perhaps be found in two
2254 that "An application for a writ of habeas corpus in behalf of a person in memorable admonitions from Marjorie G. Fribourg and Justice William O.
custody pursuant to the judgment of a State court shall not be granted unless Douglas.
it appears that the applicant has exhausted the remedies available in the courts
of the State. ..." The Court of Appeals for the Second Circuit reversed the Mrs. Fribourg, in her inimitable phrase, warns us that —
judgment of the District Court and ordered Noia's conviction set aside, with
direction to discharge him from custody unless given a new trial forthwith. ... Time has taught its age-old lesson. Well-meaning people burnt witches.
From that judgment the State appealed. Well-meaning prosecutors have convicted the innocent. Well-meaning
objectives espoused by those not grounded in history can lure us from
As the Supreme Court of the United States phrased the issue, the "narrow protecting our heritage of equal justice under the law. They can entice us,
question is whether the respondent Noia may be granted federal habeas faster than we like to believe, into endangering our liberties.18
corpus relief from imprisonment under a New York conviction now admitted
by the State to rest upon a confession obtained from him in violation of the And these are the unforgettable words of Justice Douglas:
Fourteenth Amendment, after he was denied state post-conviction relief
because the coerced confession claim had been decided against him at the The challenge to our liberties comes frequently not from those who
trial and Noia had allowed the time for a direct appeal to lapse without consciously seek to destroy our system of government, but from men of
seeking review by a state appellate court." goodwill - good men who allow their proper concerns to blind them to the
fact that what they propose to accomplish involves an impairment of liberty.
In affirming the judgment of the Court of Appeals, the United States Supreme
Court, through Mr. Justice Brennan, spoke in enduring language that may xxx xxx xxx
well apply to the case of Roger Chavez. Said the Court: 1äwphï1.ñët
The motives of these men are often commendable. What we must remember,
Today as always few indeed is the number of State prisoners who eventually however, is that preservation of liberties does not depend on motives. A
win their freedom by means of federal habeas corpus. These few who are suppression of liberty has the same effect whether the suppressor be a
ultimately successful are persons whom society has grievously wronged and reformer or an outlaw. The only protection against misguided zeal is constant
for whom belated liberation is little enough compensation. Surely no fair alertness to infractions of the guarantees of liberty contained in our
minded person will contend that those who have been deprived of their liberty Constitution. Each surrender of liberty to the demands of the moment makes
without due process of law ought nevertheless to languish in prison. Noia, no easier another, larger surrender. The battle over the Bill of Rights is a never
less than his co-defendants Caminito and Bonino, is conceded to have been ending one. 1äwphï1.ñët
the victim of unconstitutional state action. Noia's case stands on its own; but
surely no just and humane legal system can tolerate a result whereby a xxx xxx xxx
Caminito and a Bonino are at liberty because their confessions were found to
have been coerced yet Noia, whose confession was also coerced, remains in The liberties of any person are the liberties of all of us.
jail for life. For such anomalies, such affronts to the conscience of a civilized

123
xxx xxx xxx

In short, the liberties of none are safe unless the liberties of all are protected.

But even if we should sense no danger to our own liberties, even if we feel
secure because we belong to a group that is important and respected, we must
recognize that our Bill of Rights is a code of fair play for the less fortunate
that we in all honor and good conscience must observe.19

124
respectfully refused to be sworn to as a witness to take the witness stand.
G.R. No. L-19052 December 29, 1962 Hence, in a communication dated September 18, 1961, the Committee
referred the matter to respondent City Fiscal of Manila, for such action as he
MANUEL F. CABAL, petitioner, may deem proper. On September 28, 1961, the City Fiscal filed with the Court
vs. of First Instance of Manila a "charge" reading as follows:
HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA,
respondents. The undersigned hereby charges Manuel F. Cabal with contempt under
section 580 of the Revised Administrative Code in relation to sections I and
Francisco Carreon for petitioner. 7, Rule 64 of the Rules of Court, committed as follows:
Assistant City Fiscal Manuel T. Reyes for respondent City of Manila.
That on or about September 15, 1961, in the investigation conducted at the
CONCEPCION, J.: U.P. Little Theater:, Padre Faura, Manila, by the Presidential Committee,
which was created by the President of the Republic of the Philippines in
This is an original petition for certiorari and prohibition with preliminary accordance with law to investigate the charges of alleged acquisition by
injunction, to restrain the Hon. Ruperto Kapunan, Jr., as Judge of the Court respondent of unexplained wealth and composed of Justice Marceliano
of First Instance of Manila, from further proceeding in Criminal Case No. Montemayor, as Chairman, and Justices Buenaventura Ocampo and Sotero
60111 of said court, and to set aside an order of said respondent, as well as Cabahug and Generals Basilio Valdez and Guillermo Francisco, as members,
the whole proceedings in said criminal case. . with the power, among others, to compel the attendance of witnesses and take
their testimony under oath, respondent who was personally present at the time
On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed before the Committee in compliance with a subpoena duly issued to him, did
with the Secretary of Nation Defense a letter-complaint charging petitioner then and there willfully, unlawfully, and contumaciously, without any
Manuel Cabal, then Chief of Staff of the Armed Forces of the Philippines, justifiable cause or reason refusal and fail and still refuses and fails to obey
with "graft, corrupt practices, unexplained wealth, conduct unbecoming of an the lawful order of the Committee to take the witness stand, be sworn and
officer and gentleman dictatorial tendencies, giving false statements of his as testify as witness in said investigation, in utter disregard of the lawful
sets and liabilities in 1958 and other equally reprehensible acts". On authority of the Committee and thereby obstructing and degrading the
September 6, 1961, the President of the Philippines created a committee of proceedings before said body.
five (5) members, consisting of former Justice Marceliana R. Montemayor,
as Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug, Wherefore, it is respectfully prayed that respondent be summarily adjudged
and Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the guilty of contempt of the Presidential Committee and accordingly disciplined
charge of unexplained wealth contained in said letter-complaint and submit as in contempt of court imprisonment until such time as he shall obey the
its report and recommendations as soon as possible. At the beginning of the subject order of said committee.
investigation, on September 15, 1961, the Committee, upon request of
complainant Col. Maristela, or considered petitioner herein to take the This charge, docketed as Criminal Case No. 60111 of said court, was assigned
witness stand and be sworn to as witness for Maristela, in support of his to Branch XVIII thereof, presided over by respondent Judge. On October 2,
aforementioned charge of unexplained wealth. Thereupon, petitioner 1961, the latter issued an order requiring petitioner to show cause and/or
objected, personally and through counsel, to said request of Col. Maristela answer the charge filed against him within ten (10) days. Soon thereafter, or
and to the aforementioned order of the Committee, invoking his constitutional on October 4, 1961, petitioner filed with respondent Judge a motion to quash
right against self-incrimination. The Committee insisted that petitioner take the charge and/or order to show cause, upon the ground: (1) that the City
the witness stand and be sworn to, subject to his right to refuse to answer such Fiscal has neither authority nor personality to file said char and the same is
questions as may be incriminatory. This notwithstanding, petitioner null and void, for, if criminal, the charge has been filed without a preliminary

125
investigation, and, civil, the City Fiscal may not file it, his authority in respect In this connection, it should be noted that, although said Committee was
of civil cases being limited to representing the City of Manila; (2) that the created to investigate the administrative charge of unexplained wealth, there
facts charged constitute no offense for section 580 of the Revised seems to be no question that Col. Maristela does not seek the removal of
Administrative Code, upon which the charge is based, violates due process, petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As
in that it is vague and uncertain as regards the offense therein defined and the a matter of fact he no longer holds such office. It seems, likewise conceded
fine imposable therefor and that it fail to specify whether said offense shall that the purpose of the charge against petitioner is to apply the provisions of
be treated also contempt of an inferior court or of a superior court (3) that Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law,
more than one offense is charged, for the contempt imputed to petitioner is which authorizes the forfeiture to the State of property of a public officer or
sought to be punished as contempt of an inferior court, as contempt of a employee which is manifestly out of proportion to his salary as such public
superior court an as contempt under section 7 of Rule 64 of the Rules Court; officer or employee and his other lawful income and the income from
(4) that the Committee had no power to order an require petitioner to take the legitimately acquired property. Such for forfeiture has been held, however, to
witness stand and be sworn to, upon the request of Col. Maristela, as witness partake of the nature of a penalty.
for the latter, inasmuch as said order violates petitioner's constitutional right
against self-incrimination. In a strict signification, a forfeiture is a divestiture property without
compensation, in consequence of a default an offense, and the term is used in
By resolution dated October 14, 1961. respondent Judge denied said motion such a sense in this article. A forfeiture, as thus defined, is imposed by way
to quash. Thereupon, or on October 20, 1961, petitioner began the present of punishment not by the mere convention of the parties, but by the
action for the purpose adverted to above, alleging that, unless restrained by lawmaking power, to insure a prescribed course of conduct. It is a method
this court, respondent Judge may summarily punish him for contempt, and deemed necessary by the legislature to restrain the commission of an offense
that such action would not be appealable. and to aid in the prevention of such a offense. The effect of such a forfeiture
is to transfer the title to the specific thing from the owner to the sovereign
In their answer, respondents herein allege, inter alia, that the investigation power (23 Am. Jur. 599) (Emphasis ours.)
being conducted by the Committee above referred to is administrative, not
criminal, in nature; that the legal provision relied upon by petitioner in In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a
relation to preliminary investigations (Section '08-C, Republic Act No. 409, liability to pay a definite sum of money as the consequence of violating the
as amended by Republic Act No. 1201) is inapplicable to contempt provisions of some statute or refusal to comply with some requirement of
proceedings; that, under section 580 of the Revised Administrative Code. law." It may be said to be a penalty imposed for misconduct or breach of duty.
contempt against an administrative officer is to be dealt with as contempt of (Com. vs. French, 114 S.W. 255.)
a superior court; that petitioner herein is charged with only one offense; and
that, tinder the constitutional guarantee against self-incrimination, petitioner As a consequence, proceedings for forfeiture of proper are deemed criminal
herein may refuse, not to take the witness stand, but to answer incriminatory or penal, and, hence, the exemption of defendants in criminal case from the
questions. obligation to be witnesses against themselves are applicable thereto.

At the outset, it is not disputed that the accused in a criminal case may refuse, Generally speaking, informations for the forfeiture of goods that seek no
not only to answer incriminatory questions, but, also, to take the witness stand judgment of fine or imprisonment against any person are deemed to be civil
(3 Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, proceedings in rem. Such proceedings are criminal in nature to the extent that
the issue before us boils down to whether or not the proceedings before the where the person using the res illegally is the owner or rightful possessor of
aforementioned Committee is civil or criminal in character. it, the forfeiture proceeding is in the nature of a punishment. They have been
held to be so far in the nature criminal proceedings that a general verdict on
several count in an information is upheld if one count is good. According to

126
the authorities such proceedings, where the owner of the property appears, As already observed, the various constitutions provide that no person shall be
are so far considered as quasi-criminal proceeding as to relieve the owner compelled in any criminal case to be a witness against himself. This
from being a witness against himself and to prevent the compulsory prohibition against compelling a person to take the stand as a witness against
production of his books and papers. ... (23 Am. Jur. 612; emphasis ours.) himself applied only to criminal, quasi-criminal, and penal proceedings,
including a proceeding civil in form for forfeiture of property by reason of
Although the contrary view formerly obtained, the late decisions are to the the commission of an offense, but not a proceeding in which the penalty
effect that suits for forfeitures incurred by the commission of offenses against recoverable is civil or remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49:
the law are so far of quasi-criminal nature as to be within the reason of emphasis ours.)
criminal proceedings for all purposes of ... that portion of the Fifth
Amendment which declares that no person shall be compelled in any criminal The privilege of a witness not to incriminate himself is not infringed by
case to be a witness against himself. .... It has frequently been held upon merely asking the witness a question which he refuses to answer. The
constitutional grounds under the various State Constitution, that a witness or privilege is simply an option of refusal, and not a prohibition of inquiry. A
party called as witness cannot be made to testify against himself as to matters question is not improper merely because the answer may tend to incriminate
which would subject his property to forfeiture. At early common law no but, where a witness exercises his constitutional right not to answer, a
person could be compelled to testify against himself or to answer any question by counsel as to whether the reason for refusing to answer is because
question which would have had a tendency to expose his property to a the answer may tend to incriminate the witness is improper.
forfeiture or to form a link in a chain of evidence for that purpose, as well as
to incriminate him. Under this common-law doctrine of protection against The possibility that the examination of the witness will be pursued to the
compulsory disclosures which would tend to subject the witness to forfeiture, extent of requiring self-incrimination will not justify the refusal to answer
such protection was claimed and availed of in some early American cases questions. However, where the position of the witness is virtually that of an
without placing the basis of the protection upon constitutional grounds. (23 accused on trial, it would appear that he may invoke the privilege in support
Am. Jur., 616; emphasis ours.) of a blanket refusal to answer any and all questions. (C.J.S., p. 252; emphasis
ours.)
Proceedings for forfeitures are generally considered to be civil and in the
nature of proceedings in rem. The statute providing that no judgment or other A person may not be compelled to testify in an action against him for a
proceedings in civil cases shall be arrested or reversed for any defect or want penalty or to answer any question as a witness which would subject him to a
of form is applicable to them. In some aspects, however, suits for penalties penalty or forfeiture, where the penalty or forfeiture is imposed as a
and forfeitures are of quasi-criminal nature and within the reason of criminal vindication of the public justice of the state.
proceedings for all the purposes of ... that portion of the Fifth Amendment
which declares, that no person shall be compelled in any criminal case to be In general, both at common law and under a constitution provision against
a witness against himself. The proceeding is one against the owner, as well compulsory self-incrimination, a person may not be compelled to answer any
as against the goods; for it is his breach of the laws which has to be proved to question as a witness which would subject him to a penalty or forfeiture, or
establish the forfeiture and his property is sought to be forfeited. (15 Am. Jur., testify in action against him for a penalty.
Sec. 104, p. 368; emphasis ours.)lawphil.net
The privilege applies where the penalty or forfeiture recoverable, or is
The rule protecting a person from being compelled to furnish evidence which imposed in vindication of the public justice the state as a statutory fine or
would incriminate him exists not only when he is liable criminally to penalty, or a fine or penalty for violation of a municipal ordinance, even
prosecution and punishment, but also when his answer would tend to expose though the action or proceeding for its enforcement is not brought in a
him to a ... forfeiture .... (58 Am. Jur., See. 43, p. 48; emphasis ours.) criminal court but is prosecuted through the modes of procedure applicable
to ordinary civil remedy. (98 C. J. S., pp. 275-6.)

127
Bengzon, C.J., is on leave.
Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the
information, in a proceeding to declaration a forfeiture of certain property
because of the evasion of a certain revenue law, "though technically a civil
proceeding is in substance and effect a criminal one", and that suits for
penalties and forfeitures are within the reason criminal proceedings for the
purposes of that portion the Fifth Amendment of the Constitution of the U.S.
which declares that no person shall be compelled in a criminal case to be a
witness against himself. Similarly, a proceeding for the removal of an officer
was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in
substance criminal, for said portion of the Fifth Amendment applies "to all
cases in which the action prosecution is not to establish, recover or redress
private and civil rights, but to try and punish persons charged with the
commission of public offenses" and "a criminal case is a action, suit or cause
instituted to punish an infraction the criminal laws, and, with this object in
view, it matters not in what form a statute may clothe it; it is still a criminal
case ...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-
1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an
extensive examination of pertinent cases, concludes that said constitutional
provision applies whenever the proceeding is not "purely remedial", or
intended "as a redress for a private grievance", but primarily to punish "a
violation of duty or a public wrong and to deter others from offending in
likewise manner. ...".

We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428
(August 30, 1962) in which the theory that, after the filing of respondents'
answer to a petition for forfeiture under Republic Act No. 1379, said petition
may not be amended as to substance pursuant to our rules of criminal
procedure, was rejected by this Court upon the ground that said forfeiture
proceeding in civil in nature. This doctrine refers, however, to the purely
procedural aspect of said proceeding, and has no bearing the substantial rights
of the respondents therein, particularly their constitutional right against self-
incrimination.

WHEREFORE, the writ prayed for is granted and respondent Judge hereby
enjoined permanently from proceeding further in Criminal Case No. 60111
of the Court of First Instance of Manila. It is so ordered.

Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon,


Regala and Makalintal, JJ., concur.

128
G.R. No. L-25018 May 26, 1969 appellee, who was the respondent in such malpractice charge. Thereupon,
petitioner-appellee, through counsel, made of record his objection, relying on
ARSENIO PASCUAL, JR., petitioner-appellee, the constitutional right to be exempt from being a witness against himself.
vs. Respondent-appellant, the Board of Examiners, took note of such a plea, at
BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR the same time stating that at the next scheduled hearing, on February 12,
GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants. 1965, petitioner-appellee would be called upon to testify as such witness,
unless in the meantime he could secure a restraining order from a competent
Conrado B. Enriquez for petitioner-appellee. authority.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Antonio A. Torres and Solicitor Pedro A. Ramirez for respondent-appellant. Petitioner-appellee then alleged that in thus ruling to compel him to take the
Bausa, Ampil and Suarez for intervenors-appellants. witness stand, the Board of Examiners was guilty, at the very least, of grave
abuse of discretion for failure to respect the constitutional right against self-
FERNANDO, J.: incrimination, the administrative proceeding against him, which could result
in forfeiture or loss of a privilege, being quasi-criminal in character. With his
The broad, all-embracing sweep of the self-incrimination clause,1 whenever assertion that he was entitled to the relief demanded consisting of perpetually
appropriately invoked, has been accorded due recognition by this Court ever restraining the respondent Board from compelling him to testify as witness
since the adoption of the Constitution.2 Bermudez v. Castillo,3 decided in for his adversary and his readiness or his willingness to put a bond, he prayed
1937, was quite categorical. As we there stated: "This Court is of the opinion for a writ of preliminary injunction and after a hearing or trial, for a writ of
that in order that the constitutional provision under consideration may prove prohibition.
to be a real protection and not a dead letter, it must be given a liberal and
broad interpretation favorable to the person invoking it." As phrased by On February 9, 1965, the lower court ordered that a writ of preliminary
Justice Laurel in his concurring opinion: "The provision, as doubtless it was injunction issue against the respondent Board commanding it to refrain from
designed, would be construed with the utmost liberality in favor of the right hearing or further proceeding with such an administrative case, to await the
of the individual intended to be served." 4 judicial disposition of the matter upon petitioner-appellee posting a bond in
the amount of P500.00.
Even more relevant, considering the precise point at issue, is the recent case
of Cabal v. Kapunan,5where it was held that a respondent in an administrative The answer of respondent Board, while admitting the facts stressed that it
proceeding under the Anti-Graft Law 6 cannot be required to take the witness could call petitioner-appellee to the witness stand and interrogate him, the
stand at the instance of the complainant. So it must be in this case, where right against self-incrimination being available only when a question calling
petitioner was sustained by the lower court in his plea that he could not be for an incriminating answer is asked of a witness. It further elaborated the
compelled to be the first witness of the complainants, he being the party matter in the affirmative defenses interposed, stating that petitioner-appellee's
proceeded against in an administrative charge for malpractice. That was a remedy is to object once he is in the witness stand, for respondent "a plain,
correct decision; we affirm it on appeal. speedy and adequate remedy in the ordinary course of law," precluding the
issuance of the relief sought. Respondent Board, therefore, denied that it
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the acted with grave abuse of discretion.
Court of First Instance of Manila an action for prohibition with prayer for
preliminary injunction against the Board of Medical Examiners, now There was a motion for intervention by Salvador Gatbonton and Enriqueta
respondent-appellant. It was alleged therein that at the initial hearing of an Gatbonton, the complainants in the administrative case for malpractice
administrative case7 for alleged immorality, counsel for complainants against petitioner-appellee, asking that they be allowed to file an answer as
announced that he would present as his first witness herein petitioner- intervenors. Such a motion was granted and an answer in intervention was

129
duly filed by them on March 23, 1965 sustaining the power of respondent Self-Incrimination Clause of the Fifth Amendment has been absorbed in the
Board, which for them is limited to compelling the witness to take the stand, Fourteenth, that it extends its protection to lawyers as well as to other
to be distinguished, in their opinion, from the power to compel a witness to individuals, and that it should not be watered down by imposing the dishonor
incriminate himself. They likewise alleged that the right against self- of disbarment and the deprivation of a livelihood as a price for asserting it."
incrimination cannot be availed of in an administrative hearing. We reiterate that such a principle is equally applicable to a proceeding that
could possibly result in the loss of the privilege to practice the medical
A decision was rendered by the lower court on August 2, 1965, finding the profession.
claim of petitioner-appellee to be well-founded and prohibiting respondent
Board "from compelling the petitioner to act and testify as a witness for the 2. The appeal apparently proceeds on the mistaken assumption by respondent
complainant in said investigation without his consent and against himself." Board and intervenors-appellants that the constitutional guarantee against
Hence this appeal both by respondent Board and intervenors, the Gatbontons. self-incrimination should be limited to allowing a witness to object to
As noted at the outset, we find for the petitioner-appellee. questions the answers to which could lead to a penal liability being
subsequently incurred. It is true that one aspect of such a right, to follow the
1. We affirm the lower court decision on appeal as it does manifest fealty to language of another American decision, 11 is the protection against "any
the principle announced by us in Cabal v. Kapunan. 8 In that proceeding for disclosures which the witness may reasonably apprehend could be used in a
certiorari and prohibition to annul an order of Judge Kapunan, it appeared criminal prosecution or which could lead to other evidence that might be so
that an administrative charge for unexplained wealth having been filed used." If that were all there is then it becomes diluted.lawphi1.ñet
against petitioner under the Anti-Graft Act,9the complainant requested the
investigating committee that petitioner be ordered to take the witness stand, The constitutional guarantee protects as well the right to silence. As far back
which request was granted. Upon petitioner's refusal to be sworn as such as 1905, we had occasion to declare: "The accused has a perfect right to
witness, a charge for contempt was filed against him in the sala of respondent remain silent and his silence cannot be used as a presumption of his guilt." 12
Judge. He filed a motion to quash and upon its denial, he initiated this Only last year, in Chavez v. Court of Appeals, 13 speaking through Justice
proceeding. We found for the petitioner in accordance with the well-settled Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant
principle that "the accused in a criminal case may refuse, not only to answer "to forego testimony, to remain silent, unless he chooses to take the witness
incriminatory questions, but, also, to take the witness stand." stand — with undiluted, unfettered exercise of his own free genuine will."

It was noted in the opinion penned by the present Chief Justice that while the Why it should be thus is not difficult to discern. The constitutional guarantee,
matter referred to an a administrative charge of unexplained wealth, with the along with other rights granted an accused, stands for a belief that while crime
Anti-Graft Act authorizing the forfeiture of whatever property a public officer should not go unpunished and that the truth must be revealed, such desirable
or employee may acquire, manifestly out proportion to his salary and his other objectives should not be accomplished according to means or methods
lawful income, there is clearly the imposition of a penalty. The proceeding offensive to the high sense of respect accorded the human personality. More
for forfeiture while administrative in character thus possesses a criminal or and more in line with the democratic creed, the deference accorded an
penal aspect. The case before us is not dissimilar; petitioner would be individual even those suspected of the most heinous crimes is given due
similarly disadvantaged. He could suffer not the forfeiture of property but the weight. To quote from Chief Justice Warren, "the constitutional foundation
revocation of his license as a medical practitioner, for some an even greater underlying the privilege is the respect a government ... must accord to the
deprivation. dignity and integrity of its citizens." 14

To the argument that Cabal v. Kapunan could thus distinguished, it suffices It is likewise of interest to note that while earlier decisions stressed the
to refer to an American Supreme Court opinion highly persuasive in principle of humanity on which this right is predicated, precluding as it does
character. 10 In the language of Justice Douglas: "We conclude ... that the all resort to force or compulsion, whether physical or mental, current judicial

130
opinion places equal emphasis on its identification with the right to privacy.
Thus according to Justice Douglas: "The Fifth Amendment in its Self-
Incrimination clause enables the citizen to create a zone of privacy which
government may not force to surrender to his detriment." 15 So also with the
observation of the late Judge Frank who spoke of "a right to a private enclave
where he may lead a private life. That right is the hallmark of our democracy."
16 In the light of the above, it could thus clearly appear that no possible
objection could be legitimately raised against the correctness of the decision
now on appeal. We hold that in an administrative hearing against a medical
practitioner for alleged malpractice, respondent Board of Medical Examiners
cannot, consistently with the self-incrimination clause, compel the person
proceeded against to take the witness stand without his consent.

WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed.


Without pronouncement as to costs.

131
G.R. Nos. 71208-09 August 30, 1985 wherein various witnesses appeared and testified and/or produced
documentary and other evidence either in obedience to a subpoena or in
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners, response to an invitation issued by the Board Among the witnesses who
vs. appeared, testified and produced evidence before the Board were the herein
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND private respondents General Fabian C. Ver, Major General Prospero Olivas,
ASSOCIATE JUSTICES AUGUSTO AMORES AND BIENVENIDO 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt.
VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4
BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C.
VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO UPON termination of the investigation, two (2) reports were submitted to His
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon.
SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO Justice Corazon Juliano Agrava; and another one, jointly authored by the
ACUPIDO, respondents. other members of the Board — namely: Hon. Luciano Salazar, Hon. Amado
Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were
G.R. Nos. 71212-13 August 30, 1985 thereafter referred and turned over to the TANODBAYAN for appropriate
action. After conducting the necessary preliminary investigation, the
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations
(OMBUDSMAN), petitioner, for MURDER-one for the killing of Sen. Benigno S. Aquino which was
vs. docketed as Criminal Case No. 10010 and another, criminal Case No. 10011,
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. for the killing of Rolando Galman, who was found dead on the airport tarmac
PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS not far from the prostrate body of Sen. Aquino on that same fateful day. In
FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. both criminal cases, private respondents were charged as accessories, along
PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents. with several principals, and one accomplice.

Upon arraignment, all the accused, including the herein private ate
CUEVAS, JR., J.: Respondents pleaded NOT GUILTY.

On August 21, 1983, a crime unparalleled in repercussions and ramifications In the course of the joint trial of the two (2) aforementioned cases, the
was committed inside the premises of the Manila International Airport (MIA) Prosecution represented by the Office of the petition TANODBAYAN,
in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart marked and thereafter offered as part of its evidence, the individual
who was returning to the country after a long-sojourn abroad, was gunned testimonies of private respondents before the Agrava Board. 6 Private
down to death. The assassination rippled shock-waves throughout the entire respondents, through their respective counsel objected to the admission of
country which reverberated beyond the territorial confines of this Republic. said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude
The after-shocks stunned the nation even more as this ramified to all aspects Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as
of Philippine political, economic and social life. Evidence against him in the above-entitled cases" 7 contending that its
admission will be in derogation of his constitutional right against self-
To determine the facts and circumstances surrounding the killing and to allow incrimination and violative of the immunity granted by P.D. 1886. He prayed
a free, unlimited and exhaustive investigation of all aspects of the tragedy, 1 that his aforesaid testimony be rejected as evidence for the prosecution. Major
P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which Gen. Olivas and the rest of the other private respondents likewise filed
later became more popularly known as the Agrava Board. 2 Pursuant to the separate motions to exclude their respective individual testimonies invoking
powers vested in it by P.D. 1886, the Board conducted public hearings the same ground. 8 Petitioner TANODBAYAN opposed said motions

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contending that the immunity relied upon by the private respondents in
support of their motions to exclude their respective testimonies, was not The crux of the instant controversy is the admissibility in evidence of the
available to them because of their failure to invoke their right against self- testimonies given by the eight (8) private respondents who did not invoke
incrimination before the ad hoc Fact Finding Board. 9 Respondent their rights against self-incrimination before the Agrava Board.
SANDIGANBAYAN ordered the TANODBAYAN and the private
respondents to submit their respective memorandum on the issue after which It is the submission of the prosecution, now represented by the petitioner
said motions will be considered submitted for resolution. 10 TANODBAYAN, that said testimonies are admissible against the private
respondents, respectively, because of the latter's failure to invoke before the
On May 30, 1985, petitioner having no further witnesses to present and Agrava Board the immunity granted by P.D. 1886. Since private respondents
having been required to make its offer of evidence in writing, respondent did not invoke said privilege, the immunity did not attach. Petitioners went
SANDIGANBAYAN, without the pending motions for exclusion being further by contending that such failure to claim said constitutional privilege
resolved, issued a Resolution directing that by agreement of the parties, the amounts to a waiver thereof. 16 The private respondents, on the other hand,
pending motions for exclusion and the opposition thereto, together with the claim that notwithstanding failure to set up the privilege against self-
memorandum in support thereof, as well as the legal issues and arguments, incrimination before the Agrava Board, said evidences cannot be used against
raised therein are to be considered jointly in the Court's Resolution on the them as mandated by Section 5 of the said P.D. 1886. They contend that
prosecution's formal offer of exhibits and other documentary evidences.11 without the immunity provided for by the second clause of Section 5, P.D.
On June 3, 1985, the prosecution made a written "Formal Offer of Evidence" 1886, the legal compulsion imposed by the first clause of the same Section
which includes, among others, the testimonies of private respondents and would suffer from constitutional infirmity for being violative of the witness'
other evidences produced by them before the Board, all of which have been right against self- incrimination. 17 Thus, the protagonists are locked in horns
previously marked in the course of the trial.12 on the effect and legal significance of failure to set up the privilege against
self-incrimination.
All the private respondents objected to the prosecution's formal offer of
evidence on the same ground relied upon by them in their respective motion The question presented before Us is a novel one. Heretofore, this Court has
for exclusion. not been previously called upon to rule on issues involving immunity statutes.
The relative novelty of the question coupled with the extraordinary
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, circumstance that had precipitated the same did nothing to ease the burden of
now assailed in these two (2) petitions, admitting all the evidences offered by laying down the criteria upon which this Court will henceforth build future
the prosecution except the testimonies and/or other evidence produced by the jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying
private respondents in view of the immunity granted by P.D. 1886. 13 out this monumental task, however, We shall be guided, as always, by the
constitution and existing laws.
Petitioners' motion for the reconsideration of the said Resolution having been
DENIED, they now come before Us by way of certiorari 14 praying for the The Agrava Board, 18 came into existence in response to a popular public
amendment and/or setting aside of the challenged Resolution on the ground clamor that an impartial and independent body, instead of any ordinary police
that it was issued without jurisdiction and/or with grave abuse of discretion agency, be charged with the task of conducting the investigation. The then
amounting to lack of jurisdiction. Private prosecutor below, as counsel for the early distortions and exaggerations, both in foreign and local media, relative
mother of deceased Rolando Galman, also filed a separate petition for to the probable motive behind the assassination and the person or persons
certiorari 15 on the same ground. Having arisen from the same factual responsible for or involved in the assassination hastened its creation and
beginnings and raising practically Identical issues, the two (2) petitioners heavily contributed to its early formation. 19
were consolidated and will therefore be jointly dealt with and resolved in this
Decision.

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Although referred to and designated as a mere Fact Finding Board, the Board before their very eyes. Similarly, they cannot invoke the right not to be a
is in truth and in fact, and to all legal intents and purposes, an entity charged, witness against themselves, both of which are sacrosantly enshrined and
not only with the function of determining the facts and circumstances protected by our fundamental law. 21-a Both these constitutional rights (to
surrounding the killing, but more importantly, the determination of the person remain silent and not to be compelled to be a witness against himself) were
or persons criminally responsible therefor so that they may be brought before right away totally foreclosed by P.D. 1886. And yet when they so testified
the bar of justice. For indeed, what good will it be to the entire nation and the and produced evidence as ordered, they were not immune from prosecution
more than 50 million Filipinos to know the facts and circumstances of the by reason of the testimony given by them.
killing if the culprit or culprits will nevertheless not be dealt with criminally?
This purpose is implicit from Section 12 of the said Presidential Decree, the Of course, it may be argued is not the right to remain silent available only to
pertinent portion of which provides — a person undergoing custodial interrogation? We find no categorical
statement in the constitutional provision on the matter which reads:
SECTION 12. The findings of the Board shall be made public. Should the
findings warrant the prosecution of any person, the Board may initiate the ... Any person under investigation for the commission of an offense shall have
filing of proper complaint with the appropriate got government agency. ... the right to remain and to counsel, and to be informed of such right. ... 22
(Emphasis supplied) (Emphasis supplied)

The investigation therefor is also geared, as any other similar investigation of Since the effectivity of the 1973 Constitution, we now have a mass of
its sort, to the ascertainment and/or determination of the culprit or culprits, jurisprudence 23 on this specific portion of the subject provision. In all these
their consequent prosecution and ultimately, their conviction. And as cases, it has been categorically declared that a person detained for the
safeguard, the P.D. guarantees "any person called to testify before the Board commission of an offense undergoing investigation has a right to be informed
the right to counsel at any stage of the proceedings." 20 Considering the of his right to remain silent, to counsel, and to an admonition that any and all
foregoing environmental settings, it cannot be denied that in the course of statements to be given by him may be used against him. Significantly
receiving evidence, persons summoned to testify will include not merely however, there has been no pronouncement in any of these cases nor in any
plain witnesses but also those suspected as authors and co-participants in the other that a person similarly undergoing investigation for the commission of
tragic killing. And when suspects are summoned and called to testify and/or an offense, if not detained, is not entitled to the constitutional admonition
produce evidence, the situation is one where the person testifying or mandated by said Section 20, Art. IV of the Bill of Rights.
producing evidence is undergoing investigation for the commission of an
offense and not merely in order to shed light on the facts and surrounding The fact that the framers of our Constitution did not choose to use the term
circumstances of the assassination, but more importantly, to determine the "custodial" by having it inserted between the words "under" and
character and extent of his participation therein. investigation", as in fact the sentence opens with the phrase "any person "
goes to prove that they did not adopt in toto the entire fabric of the Miranda
Among this class of witnesses were the herein private respondents, suspects doctrine. 24 Neither are we impressed by petitioners' contention that the use
in the said assassination, all of whom except Generals Ver and Olivas, were of the word "confession" in the last sentence of said Section 20, Article 4
detained (under technical arrest) at the time they were summoned and gave connotes the Idea that it applies only to police investigation, for although the
their testimonies before the Agrava Board. This notwithstanding, Presidential word "confession" is used, the protection covers not only "confessions" but
Decree No. 1886 denied them the right to remain silent. They were compelled also "admissions" made in violation of this section. They are inadmissible
to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave against the source of the confession or admission and against third person. 25
them no choice. They have to take the witness stand, testify or produce
evidence, under pain of contempt if they failed or refused to do so. 21 The It is true a person in custody undergoing investigation labors under a more
jeopardy of being placed behind prison bars even before conviction dangled formidable ordeal and graver trying conditions than one who is at liberty

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while being investigated. But the common denominator in both which is rights simply because the investigation was by the Agrava Board and not by
sought to be avoided is the evil of extorting from the very mouth of the person any police investigator, officer or agency? True, they continued testifying.
undergoing interrogation for the commission of an offense, the very evidence May that be construed as a waiver of their rights to remain silent and not to
with which to prosecute and thereafter convict him. This is the lamentable be compelled to be a witness against themselves? The answer is yes, if they
situation we have at hand. have the option to do so. But in the light of the first portion of Section 5 of
P.D. 1886 and the awesome contempt power of the Board to punish any
All the private respondents, except Generals Ver and Olivas, are members of refusal to testify or produce evidence, We are not persuaded that when they
the military contingent that escorted Sen. Aquino while disembarking from testified, they voluntarily waived their constitutional rights not to be
the plane that brought him home to Manila on that fateful day. Being at the compelled to be a witness against themselves much less their right to remain
scene of the crime as such, they were among the first line of suspects in the silent.
subject assassination. General Ver on the other hand, being the highest
military authority of his co-petitioners labored under the same suspicion and Compulsion as it is understood here does not necessarily connote the use of
so with General Olivas, the first designated investigator of the tragedy, but violence; it may be the product of unintentional statements. Pressure which
whom others suspected, felt and believed to have bungled the case. The operates to overbear his will, disable him from making a free and rational
papers, especially the foreign media, and rumors from uglywagging tongues, choice, or impair his capacity for rational judgment would in our opinion be
all point to them as having, in one way or another participated or have sufficient. So is moral coercion 'tending to force testimony from the unwilling
something to do, in the alleged conspiracy that brought about the lips of the defendant. 26
assassination. Could there still be any doubt then that their being asked to
testify, was to determine whether they were really conspirators and if so, the Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing
extent of their participation in the said conspiracy? It is too taxing upon one's Garrity vs. New Jersey" where certain police officers summoned to an inquiry
credulity to believe that private respondents' being called to the witness stand being conducted by the Attorney General involving the fixing of traffic
was merely to elicit from them facts and circumstances surrounding the tickets were asked questions following a warning that if they did not answer
tragedy, which was already so abundantly supplied by other ordinary they would be removed from office and that anything they said might be used
witnesses who had testified earlier. In fact, the records show that Generals against them in any criminal proceeding, and the questions were answered,
Ver and Olivas were among the last witnesses called by the Agrava Board. the answers given cannot over their objection be later used in their
The subject matter dealt with and the line of questioning as shown by the prosecutions for conspiracy. The United States Supreme Court went further
transcript of their testimonies before the Agrava Board, indubitably evinced in holding that:
purposes other than merely eliciting and determining the so-called
surrounding facts and circumstances of the assassination. In the light of the the protection of the individuals under the Fourteenth Amendment against
examination reflected by the record, it is not far-fetched to conclude that they coerced statements prohibits use in subsequent proceedings of statements
were called to the stand to determine their probable involvement in the crime obtained under threat or removal from office, and that it extends to all,
being investigated. Yet they have not been informed or at the very least even whether they are policemen or other members of the body politic. 385 US at
warned while so testifying, even at that particular stage of their testimonies, 500, 17 L Ed. 562. The Court also held that in the context of threats of
of their right to remain silent and that any statement given by them may be removal from office the act of responding to interrogation was not voluntary
used against them. If the investigation was conducted, say by the PC, NBI or and was not an effective waiver of the privilege against self- incrimination.
by other police agency, all the herein private respondents could not have been
compelled to give any statement whether incriminatory or exculpatory. Not To buttress their precarious stand and breathe life into a seemingly hopeless
only that. They are also entitled to be admonished of their constitutional right cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert
to remain silent, to counsel, and be informed that any and all statements given that the "right not to be compelled to be a witness against himself" applies
by them may be used against them. Did they lose their aforesaid constitutional only in favor of an accused in a criminal case. Hence, it may not be invoked

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by any of the herein private respondents before the Agrava Board. The Cabal
vs. Kapunan 28 doctrine militates very heavily against this theory. Said case No doubt, the private respondents were not merely denied the afore-discussed
is not a criminal case as its title very clearly indicates. It is not People vs. sacred constitutional rights, but also the right to "due process" which is
Cabal nor a prosecution for a criminal offense. And yet, when Cabal refused fundamental fairness. 31 Quoting the highly-respected eminent
to take the stand, to be sworn and to testify upon being called as a witness for constitutionalist that once graced this Court, the former Chief Justice Enrique
complainant Col. Maristela in a forfeiture of illegally acquired assets, this M. Fernando, due process —
Court sustained Cabal's plea that for him to be compelled to testify will be in
violation of his right against self- incrimination. We did not therein state that ... is responsiveness to the supremacy of reason, obedience to the dictates of
since he is not an accused and the case is not a criminal case, Cabal cannot justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To
refuse to take the witness stand and testify, and that he can invoke his right satisfy the due process requirement, official action, to paraphrase Cardozo,
against self-incrimination only when a question which tends to elicit an must not outrun the bounds of reason and result in sheer oppression. Due
answer that will incriminate him is profounded to him. Clearly then, it is not process is thus hostile to any official action marred by lack of reasonableness.
the character of the suit involved but the nature of the proceedings that Correctly, it has been Identified as freedom from arbitrariness. It is the
controls. The privilege has consistently been held to extend to all proceedings embodiment of the sporting Idea of fair play (Frankfurter, Mr. Justice Holmes
sanctioned by law and to all cases in which punishment is sought to be visited and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those strivings
upon a witness, whether a party or not. 29 If in a mere forfeiture case where for justice and judges the act of officialdom of whatever branch "in the light
only property rights were involved, "the right not to be compelled to be a of reason drawn from considerations of fairness that reflect (democratic)
witness against himself" is secured in favor of the defendant, then with more traditions of legal and political thought." (Frankfurter, Hannah v. Larche
reason it cannot be denied to a person facing investigation before a Fact 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with
Finding Board where his life and liberty, by reason of the statements to be fixed content unrelated to time, place and circumstances."(Cafeteria Workers
given by him, hang on the balance. Further enlightenment on the subject can v. McElroy 1961, 367 US 1230) Decisions based on such a clause requiring
be found in the historical background of this constitutional provision against a 'close and perceptive inquiry into fundamental principles of our society.
self- incrimination. The privilege against self- incrimination is guaranteed in (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to
the Fifth Amendment to the Federal Constitution. In the Philippines, the same be treated narrowly or pedantically in slavery to form or phrases. (Pearson v.
principle obtains as a direct result of American influence. At first, the McGraw, 1939, 308 US 313).
provision in our organic laws were similar to the Constitution of the United
States and was as follows: Our review of the pleadings and their annexes, together with the oral
arguments, manifestations and admissions of both counsel, failed to reveal
That no person shall be ... compelled in a criminal case to be a witness against adherence to and compliance with due process. The manner in which the
himself. 30 testimonies were taken from private respondents fall short of the
constitutional standards both under the DUE PROCESS CLAUSE and under
As now worded, Section 20 of Article IV reads: the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such
grave constitutional infirmities, the individual testimonies of private
No person shall be compelled to be a witness against himself. respondents cannot be admitted against them in ally criminal proceeding.
This is true regardless of absence of claim of constitutional privilege or of the
The deletion of the phrase "in a criminal case" connotes no other import presence of a grant of immunity by law. Nevertheless, We shall rule on the
except to make said provision also applicable to cases other than criminal. effect of such absence of claim to the availability to private respondents of
Decidedly then, the right "not to be compelled to testify against himself" the immunity provided for in Section 5, P.D. 1886 which issue was squarely
applies to the herein private respondents notwithstanding that the proceedings raised and extensively discussed in the pleadings and oral arguments of the
before the Agrava Board is not, in its strictest sense, a criminal case parties.

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interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the
Immunity statutes may be generally classified into two: one, which grants Constitution, which is the first test of admissibility. It reads:
"use immunity"; and the other, which grants what is known as "transactional
immunity." The distinction between the two is as follows: "Use immunity" No person shall be compelled to be a witness against himself. Any person
prohibits use of witness' compelled testimony and its fruits in any manner in under investigation for the commission of an offense shall have the right to
connection with the criminal prosecution of the witness. On the other hand, remain silent and to counsel, and to be informed of such right. No force,
"transactional immunity" grants immunity to the witness from prosecution violence, threat, intimidation, or any other means which vitiates the free will
for an offense to which his compelled testimony relates." 32 Examining shall be used against him. Any confession obtained in violation of this section
Presidential Decree 1886, more specifically Section 5 thereof, which reads: shall be inadmissible in evidence. (Emphasis supplied)

SEC. 5. No person shall be excused from attending and testifying or from The aforequoted provision renders inadmissible any confession obtained in
producing books, records, correspondence, documents, or other evidence in violation thereof. As herein earlier discussed, this exclusionary rule applies
obedience to a subpoena issued by the Board on the ground that his testimony not only to confessions but also to admissions, 33 whether made by a witness
or the evidence required of him may tend to incriminate him or subject him in any proceeding or by an accused in a criminal proceeding or any person
to penalty or forfeiture; but his testimony or any evidence produced by him under investigation for the commission of an offense. Any interpretation of a
shall not be used against him in connection with any transaction, matter or statute which will give it a meaning in conflict with the Constitution must be
thing concerning which he is compelled, after having invoked his privilege avoided. So much so that if two or more constructions or interpretations could
against self-incrimination, to testify or produce evidence, except that such possibly be resorted to, then that one which will avoid unconstitutionality
individual so testifying shall not be exempt from prosecution and punishment must be adopted even though it may be necessary for this purpose to disregard
for perjury committed in so testifying, nor shall he be exempt from demotion the more usual and apparent import of the language used. 34 To save the
or removal from office. (Emphasis supplied) statute from a declaration of unconstitutionality it must be given a reasonable
construction that will bring it within the fundamental law. 35 Apparent
it is beyond dispute that said law belongs to the first type of immunity conflict between two clauses should be harmonized. 36
statutes. It grants merely immunity from use of any statement given before
the Board, but not immunity from prosecution by reason or on the basis But a literal application of a requirement of a claim of the privilege against
thereof. Merely testifying and/or producing evidence do not render the self- incrimination as a condition sine qua non to the grant of immunity
witness immuned from prosecution notwithstanding his invocation of the presupposes that from a layman's point of view, he has the option to refuse to
right against self- incrimination. He is merely saved from the use against him answer questions and therefore, to make such claim. P.D. 1886, however,
of such statement and nothing more. Stated otherwise ... he still runs the risk forecloses such option of refusal by imposing sanctions upon its exercise,
of being prosecuted even if he sets up his right against self- incrimination. thus:
The dictates of fair play, which is the hallmark of due process, demands that
private respondents should have been informed of their rights to remain silent SEC. 4. The Board may hold any person in direct or indirect contempt, and
and warned that any and all statements to be given by them may be used impose appropriate penalties therefor. A person guilty of .... including ...
against them. This, they were denied, under the pretense that they are not refusal to be sworn or to answer as a witness or to subscribe to an affidavit or
entitled to it and that the Board has no obligation to so inform them. deposition when lawfully required to do so may be summarily adjudged in
direct contempt by the Board. ...
It is for this reason that we cannot subscribe to the view adopted and urged
upon Us by the petitioners that the right against self-incrimination must be Such threat of punishment for making a claim of the privilege leaves the
invoked before the Board in order to prevent use of any given statement witness no choice but to answer and thereby forfeit the immunity purportedly
against the testifying witness in a subsequent criminal prosecution. A literal granted by Sec. 5. The absurdity of such application is apparent Sec. 5

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requires a claim which it, however, forecloses under threat of contempt law and the pronouncement herein made applies to all similarly situated,
proceedings against anyone who makes such claim. But the strong testimonial irrespective of one's rank and status in society.
compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the
sanctions provided in Section 4,infringes upon the witness' right against self- IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the
incrimination. As a rule, such infringement of the constitutional right renders instant petitions without merit, same are DISMISSED. No pronouncement as
inoperative the testimonial compulsion, meaning, the witness cannot be to costs.
compelled to answer UNLESS a co-extensive protection in the form of
IMMUNITY is offered. 37 Hence, under the oppressive compulsion of P.D. SO ORDERED.
1886, immunity must in fact be offered to the witness before he can be
required to answer, so as to safeguard his sacred constitutional right. But in Aquino, J., concurs (as certified by Makasiar, C.J.).
this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional Abad Santos, J., is on leave.
rights are therefore, in jeopardy. The only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had
in fact been offered. We hold, therefore, that in view of the potent sanctions
imposed on the refusal to testify or to answer questions under Sec. 4 of P.D.
1886, the testimonies compelled thereby are deemed immunized under
Section 5 of the same law. The applicability of the immunity granted by P.D. Separate Opinions
1886 cannot be made to depend on a claim of the privilege against self-
incrimination which the same law practically strips away from the witness.

With the stand we take on the issue before Us, and considering the temper of MAKASIAR, C.J., concurring:
the times, we run the risk of being consigned to unpopularity. Conscious as
we are of, but undaunted by, the frightening consequences that hover before To admit private respondents' testimonies and evidence before the Fact-
Us, we have strictly adhered to the Constitution in upholding the rule of law Finding Board (FFB) against them in the criminal prosecution pending before
finding solace in the view very aptly articulated by that well-known civil the Sandiganbayan, would violate their constitutional or human rights the
libertarian and admired defender of human rights of this Court, Mr. Justice right to procedural due process, the right to remain silent, and the right against
Claudio Teehankee, in the case of People vs. Manalang 38 and we quote: self- incrimination.

I am completely conscious of the need for a balancing of the interests of That their testimonies and other evidence they submitted before the FFB in
society with the rights and freedoms of the individuals. I have advocated the these criminal cases are incriminatory, is confirmed by the very fact that such
balancing-of-interests rule in an situations which call for an appraisal of the testimonies and evidence were the very bases of the majority report of the
interplay of conflicting interests of consequential dimensions. But I reject any FFB recommending the prosecution of private respondents as accessories.
proposition that would blindly uphold the interests of society at the sacrifice
of the dignity of any human being. (Emphasis supplied) It should be stressed that the basic purposes of the right against self-
incrimination are (1) humanity or humanitarian reasons to prevent a witness
Lest we be misunderstood, let it be known that we are not by this disposition or accused from being coerced, whether physically, morally, and/or
passing upon the guilt or innocence of the herein private respondents an issue psychologically, into incriminating himself, and (2) to protect the witness or
which is before the Sandiganbayan. We are merely resolving a question of accused from committing perjury, because the first law of nature is self-
preservation.

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due process of law" and that (Section 17, Article IV, 1973 Constitution), that
The utilization in the prosecution against them before the Sandiganbayan of "no person shall be compelled to be a witness against himself. ..." and that "
the testimonies and other evidence of private respondents before the FFB a person has the right to remain silent ..." (Section 20, Article IV, 1973
collides with Section 1, Section 17 and Section 20 of the Bill of Rights of the Constitution).
1973 Constitution:
There can be no implied waiver of a citizen's right against self-incrimination
Section 1. No person shall be deprived of life, liberty or property or of his right to remain silent.
without due process of law, nor shall any person be denied the equal of the
laws. Any such renunciation cannot be predicated on such a slender or tenuous reed
as a dubious implication. Otherwise, it would be easier to lose the human
xxx xxx xxx rights guaranteed by the Bill of Rights than to protect or preserve them; it
would be easier to enslave the citizen than for him to remain free. Such a
Section 17, No person shall be held to answer for a criminal offense result was never intended by the Founding Fathers.
without due process of law.
The first sentence of Section 20 of the Bill of Rights stating that "no person
xxx xxx xxx shall be compelled to be a witness against himself," applies to both the
ordinary witness and the suspect under custodial investigation.
Section 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an offense In support of the rule that there can be no implied waiver of the right against
shall have the right to remain silent and to counsel, and to be informed of self-incrimination and all other constitutional rights by the witness or by the
such right. No force, violence, threat, intimidation, or any other means which accused, is the fact that the right against double jeopardy can only be
vitiates the free will shall be used against him. Any confession obtained in renounced by the accused if the criminal case against him is dismissed or
violation of this Section shall be inadmissible in evidence. otherwise terminated with his express consent. Without such express consent
to the dismissal or termination of the case, the accused can always invoke his
The Bill of Rights constitutes the reservation of the sovereign people against, constitutional right against double jeopardy.
as well as the limitation on, the delegated powers of government. These rights
thus enshrined need no express assertion. On the contrary, the police and If Section 5 of P.D. 1886 were interpreted otherwise, said section would
prosecution officers of the country should respect these constitutional become a booby trap for the unsuspecting or unwary witness, A witness
liberties as directed in the recent decision in the Hildawa and Valmonte cases summoned either by subpoena or by Invitation to testify before the FFB under
(G.R. Nos. 67766 and 70881, August 14, 1985). The established Section 5, cannot refuse, under pain of contempt, to testify or produce
jurisprudence is that waiver by the citizen of his constitutional rights should evidence required of him on the ground that his testimony or evidence may
be clear, categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US tend to incriminate or subject him to a penalty or forfeiture; because the same
458, 464, cited in Abriol vs. Homeres, 84 Phil. 525 [1949] and in Chavez vs. Section 5 prohibits the use of such testimony or evidence which may tend to
CA, 24 SCRA 663, 682-683). incriminate him in any criminal prosecution that may be filed against him.
The law or decree cannot diminish the scope and extent of the guarantee
The use of testimonies and other evidence of private respondents before the against self-incrimination or the right to remain silent or the right against
FFB against them in the criminal cases subsequently filed before the being held to answer for a criminal offense without due process of law, or
Sandiganbayan would trench upon the constitutional guarantees that "no against deprivation of his life, liberty or property without due process of law.
person shall be deprived of life, liberty, or property without due process of
law ... that "no person shall be held to answer for a criminal offense without

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As a matter of fact, numerous decisions culled by American jurisprudence doubts should be resolved liberally in favor of the accused and strictly against
are partial to the rule that immunity statutes which compel a citizen to testify, the government.
should provide an immunity from prosecution that is as co-extensive, as total
and as absolute as the guarantees themselves (Jones Law on Evidence, The procedural due process both under Sections 1 and 17 of the Bill of Rights,
Chapter XVIII, Section 863, pp. 1621-1623; Kastigar vs. US 1972, 406 US Article IV of the 1973 Constitution, simply means, in the language of Justice
441). Frankfurter, the sporting Idea of fair play. The FFB and its counsel did not
inform the private respondents herein of their right to remain silent and their
Even if the witness testified pursuant to an invitation, the invitation does not right against self-incrimination, and that their testimonies may be utilized
remove the veiled threat of compulsion, because as stated in the Chavez case, against them in a court of law, before they testified. This is not fair to them,
supra. and hence, they were denied procedural due process.

Compulsion as it is understood here does not necessarily connote the use of It should be stressed that the FFB was merely a fact-finding agency for the
violence; it may be the product of unintentional statements. Pressures which purpose of gathering all the possible facts that may lead to the Identity of the
operate to overbear his will, disable him from making a free and rational culprit. Such testimonies may provide leads for the FFB, its counsels and
choice, or impair his capacity for rational judgment would in our opinion be agents to follow up. The FFB and its counsels cannot rely solely on such
sufficient. So is moral coercion attending to force testimony from the testimonies to be used against the private respondents in these criminal cases.
unwilling lips of the defendant (Chavez vs. Court of Appeals, 24 SCRA 663, It should be recalled that the FFB had ample funds for the purpose of
679). accomplishing its object. As a matter of fact. it refunded several million pesos
to the government after it concluded its investigation. The Board and its
The summons issued to private respondents has been euphemistically called counsel could have utilized the said amount to appoint additional agents to
as an invitation, instead of a subpoena or subpoena duces tecum, as a sign of look for witnesses to the assassination. In this respect, the FFB counsel could
respect for the important and high positions occupied by private respondents. be faulted in not utilizing the funds appropriated for them to ferret out all
But the effect of such an invitation thus worded is the same as a subpoena or evidence that will Identify the culprit or culprits. The failure of the FFB's
subpoena duces tecum. Precisely, the phraseology of Section 5 of P.D. 1886 counsel to use said funds reflects on the initiative and resourcefulness of its
entices the unsuspecting private respondents to testify before the FFB, by counsel. He could prosecute private respondents on evidence other than their
dangling in the same Section 5 the assurance that their testimony or the testimony and the evidence they gave before the FFB.
evidence given by them will not be used against them in a criminal
prosecution that may be instituted against them. As heretofore stated, the private respondents were compelled to testify before
the FFB whether by subpoena or by invitation which has the effect of a
At the very least, their consent to testify was under such misapprehension. subpoena as provided for in Section 5 of P.D. 1886; because private
Hence, there can be no clear, categorical, knowing and intelligent waiver of respondents then believed, by reading the entire Section 5, that the testimony
the right to remain silent, against self-incrimination, against being held to they gave before the FFB could not be used against them in the criminal cases
answer for a criminal offense without due process of law, and against being subsequently filed before the Sandiganbayan. Because the Board was merely
deprived of life, liberty or property without due process of law under such a fact-finding board and that it was riot conducting a criminal prosecution the
misapprehension. private respondents were under the impression that there was no need for
them to invoke their rights to remain silent, against self-incrimination and
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is against being held for a criminal offense without due process of law.
accentuated by the difference of opinion thereon among the counsels in these
cases and among members of this Court. And it is basic in criminal law that It should be recalled that the counsel of the FFB after submitting the majority
report, refused to cooperate with the Tanodbayan in these cases with the

140
pompous declaration that, after submitting their majority report, he
automatically became functus oficio. Was his refusal to cooperate with, and CONCEPCION, JR., J., concurring:
assist, the Tanodbayan in the prosecution of these cases, born of the
realization that the FFB majority report is as weak as it was precipitate? And 1. Let me preface my opinion by quoting from my dissent in Pimentel.
when the Tanodbayan has now his back to the wall, as it were, by the ruling 1
of the respondent Sandiganbayan excluding the testimonies and other
evidence of private respondents herein on the ground that the use of their 1. We are committed to the mandate of the Rule of Law. We resolve
testimonies and other evidence will incriminate them, the FFB counsel, controversies before Us without considering what is or what might be the
without being requested by the Tanodbayan, now files a memorandum in popular decision. No. We never do. We only consider the facts and the law.
support of the position of the Tanodbayan. what is the reason for this turn- Always the facts and the law.
about to save his report from the fire which they started with such
enthusiasm? 2. The issue before Us is not I repeat not the guilt or innocence of Gen.
Fabian C. Ver, Major Gen. Prospero Olivas, and others for their alleged
As above emphasized, it is the duty of the police and the prosecuting participation in the assassination of former Senator Benigno S. Aquino, Jr.
authorities to respect their rights under the Constitution as we stated in the
recent Hildawa and Valmonte cases, supra. 3. The issue is: Are the testimonies given by them before the Agrava
Board admissible in evidence against them in their trial before the
The grant of immunity under Section 5 of P.D. 1886 would be meaningless Sandiganbayan?
if we follow the posture of petitioners herein. Such a posture would be correct
if the phrase "after having invoked his privilege against self- incrimination" 4. The issue therefore is purely a question of law. It involves the
were transposed as the opening clause of Section 5 to read a follows "After interpretation of Sec. 5, P.D. No. 1886 and calls for the application of the
having invoked his privilege against self-incrimination, no person shall be Rule of Law.
excused from attending and testifying ... etc."
5. Sec. 5, P.D. No. 1886 reads:
Said Section 5 has two clauses and contemplates two proceedings. The first
clause from "No person shall be excused ... etc." up to "penalty or forfeiture No person shall be excused from attending and testifying or from producing
refers to the proceeding before the FFB. The second clause after the semi- books, records, correspondence, documents, or other evidence in obedience
colon following the word "forfeiture which begins with but his testimony or to a subpoena issued by the Board on the ground that his testimony or the
any evidence produced by him shall not be used against him in connection evidence required of him may tend to incriminate him or subject him to
with any transaction, matter, or thing concerning which he is compelled, after penalty or forfeiture; but his testimony or any evidence produced by him shall
having invoked his privilege against self-incrimination to testify . refers to a not be used against him in connection with any transaction, matter or thing
subsequent criminal proceeding against him which second clause guarantees concerning which he is compelled. after having invoked his privilege against
him against the use of his testimony in such criminal prosecution, but does self-incrimination, to testify or produce evidence, except that such individual
not immunize him from such prosecution based on other evidence. so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or removal
The private respondents herein, if the contention of the prosecution were from office.
sustained, would be fried in their own fat. Consequently, the petition should
be dismissed. 6. This section means that any person who is invited or summoned to
appear must obey and testify as to what he knows. Even if the testimony tends
to incriminate him he must testify. Even if he claims his constitutional right

141
against self-incrimination, he still must testify. However, his testimony the witness in a subsequent criminal prosecution is to be barred. I did not
cannot be used against him in any subsequent proceeding, provided that at agree.
the time it is being presented, he invokes his privilege against self-
incrimination. His testimony, no matter what it may be, cannot in any way I fail to see why to preserve pursuant to law (PD 1886) one's constitutional
cause him harm. right against self-incrimination, one has to offer resistance to giving
testimony a resistance which the said law itself says is futile and cannot
The only exception is if the testimony he gave is false, in which case he can prevail, as no witness by its specific injunction can refuse to testify.
be prosecuted and punished for perjury. He may also be demoted or removed
from office. 4. The constitutional right against self-incrimination may be waived
expressly. It may also be waived impliedly by speaking when one has the
7. The testimonies given by private respondents before the Agrava option to hold his tongue. Waiver by implication presupposes the existence
Board are therefore not admissible against them in their trial before the of the right to keep silent. Thus, when one speaks because the law orders him
Sandiganbayan, having invoked their privilege against self-incrimination. to do so, his action is not really voluntary and therefore his testimony should
not be deemed an implied waiver of his constitutional right against self-
incrimination.

PLANA, J., concurring: 5. Presidential Decree 1886 does not give private respondents absolute
immunity from prosecution, It only bars the use against them of the evidence
I would like to underscore some considerations underlying my concurrence: that was elicited from them by the Agrava Board. If there are other evidence
available, private respondents are subject to indictment and conviction.
1. According to the Constitution, no person shall be compelled to be a
witness against himself. But the law (PD 1886) which created the Agrava 6. Moreover, the evidence given to the Agrava Board is not, in my
Board decrees that no person shall be excused from testifying on the ground view, completedly immunized. What PD 1886 bars from use is only the
of self- incrimination. If the law had stopped after this command, it would testimony of the witness who testified before the Agrava Board and whatever
have been plainly at variance with the Constitution and void. lt was to ward was presented as part of his testimony, as such. PD 1886 could not have
off such a Constitutional infirmity that the law provided for immunity against intended to convert non-confidential official documents into shielded public
the use of coerced testimony or other evidence, an immunity which, to be records that cannot be used as evidence against private respondents, by the
constitutionally adequate, must give at least the same measure of protection mere fact that they were admitted in evidence as part of private respondents'
as the fundamental guarantee against self-incrimination. testimony before the Agrava Board. In other words, evidence otherwise
available to the prosecution, such as official documents, do not become
2. Presidential Decree 1886 was not intended either to restrict or barred just because they have been referred to in the course of the testimony
expand the constitutional guarantee against self-incrimination. On the one of private respondents and admitted in evidence as part of their testimony
hand, a law cannot restrict a constitutional provision. On the other hand, PD They may still be subpoenaed and offered in evidence. Conceivably, some
1886 was adopted precisely to coerce the production of evidence that objections might be raised; but the evidence will be unfettered by the
hopefully would unmask the killers of Senator Aquino, although the exclusionary rule in PD 1886.
compulsory process is accompanied by "use" immunity.

3. It is argued that the right against self- incrimination must have been
invoked before the Agrava Board if the use of evidence given therein against ESCOLIN, J., concurring:

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I concur in the dismissal of the petitions. The admission in evidence of the
testimonies of private respondents given before the Agrava Board would In many petitions filed with this Court and lower courts, the military has often
constitute a violation of their right against self- incrimination guaranteed been charged with riding roughshod over the basic rights of citizens. Officers
under Section 20, Article IV of the Constitution. I subscribe to the majority and enlisted men in the frontlines of the fight against subversion or rebellion
view that Section 5 of P.D. 1886 cannot be constitutionally tenable, unless a may, in the heat of combat, see no need to be concerned over such ,niceties"
grant of immunity is read into it vis-a-vis the compulsion it imposes upon a as due process, unreasonable searches and seizures, freedom of expression,
witness to testify. Otherwise stated, Section 5 of P.D. 1886 should be and right to counsel. They are best reminded that these rights are not luxuries
interpreted as an immunity statute, which, while depriving one of the right to to be discarded in times of crisis. These rights are the bedrock of a free and
remain silent, provides an immunity from prosecution that is as co-extensive, civilized society. They are the reason why we fight so hard to preserve our
as total and as absolute as the guarantees themselves. (Jones Law on system of government. And as earlier stated, there may come times when we
Evidence, Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S., may have to personally invoke these basic freedoms for ourselves. When we
1972, 406 US 441). deny a right to an accused, we deny it to ourselves.

Clearly, this is how the private respondents understood the legal provision The decision of the Court underscores the importance of keeping inviolate
under consideration. For ably assisted as they were by counsel, they would the protections given by the Bill of Rights. Acts which erode or sacrifice
not have allowed themselves to be deliberately dragged into what the Chief constitutional rights under seductive claims of preserving or enhancing
Justice would call a "booby trap". Viewed from another angle, therefore, it political and economic stability must be resisted. Any lessening of freedom
could not be truly said that private respondents had waived their right against will not at all increase stability. The liberties of individuals cannot be
self- incrimination in a manner that is clear, categorical, knowing and preserved by denying them.
intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol v. Homeres,
84 Phil. 525 and Chavez v. CA, 24 SCRA 663). The dividing line between legitimate dissent or opposition on one hand and
subversion or rebellion on the other may be difficult to pinpoint during
troubled times. The lesson of this petition is that those charged with
suppressing the rebellion and those who sit in courts of justice should ever be
GUTIERREZ, JR., J., concurring: vigilant in not lumping legitimate dissenters and rebels together in one
indiscriminate classification.
I concur in the majority opinion penned by Justice Serafin R. Cuevas and in
the pithy separate opinion of Justice Nestor B. Alampay but would like to add An abiding concern for principles of liberty and justice is especially
some personal observations. imperative in periods of crisis and in times of transition. And all persons from
the mighty to the lowy must be given the fullest measure of protection under
This case furnishes an opportunity to appreciate the workings of our criminal the Bill of Rights if our constitutional guarantees are to have any meaning.
justice system.
In addition to the right against self- incrimination, of not being compelled to
The prosecutions which led to this petition serve as a timely reminder that all be a witness against one's self, so ably discussed by Justice Cuevas in the
of us-civilian or military, layman or judge, powerful or helpless- need the Bill Court's opinion, I am constrained by considerations of basic fairness to vote
of Rights. And should the time ever come when like the respondents we may against granting the petition.
have to invoke the Constitution's protection, the guarantees of basic rights
must be readily available, in their full strength and pristine glory, unaffected The private respondents were called to testify before the Agrava Commission.
by what is currently popular or decreed and heedless of whoever may be The decree creating the commission stated that no person may refuse to attend
involved and testify or to produce evidence before it on the ground that what he says

143
or produces may incriminate him. But since the witness is compelled to give the prosecution will have to look for evidence other than the words of the
all he knows or possesses in effect shorn by law of his right not to incriminate accused given before the Agrava Commission.
himself the decree states that the evidence wrung from that witness may not
be used against him later. This is, simply speaking, what the petition is all In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted
about. with the validity of the 1893 Immunity Act. Brown was subpoenaed to testify
before a grand jury investigating railroad anomalies. lie refused to testify on
The respondents may be prosecuted as indeed they have been prosecuted. grounds of self- incrimination, arguing that the Immunity Act compelling him
They may eventually be convicted if the evidence warrants conviction. to testify was unconstitutional. The Court ruled that "(W)hile the
however, they may not be convicted solely on the evidence which came from constitutional provision in question is justly regarded as one of the most
their own mouths or was produced by their own hands. The evidence must valuable prerogatives of the citizen, its object is fully accomplished by the
come from other sources. It would be the height of unfairness and contrary to statutory immunity and we are therefore of opinion that the witness was
due process if a man is required to state what he knows even if it would compellable to answer." In other words, the statutory immunity takes the
incriminate him, is promised immunity if he talks freely, and is later place of the invocation of the constitutional guarantee. There is no need at the
convicted solely on the testimony he gave under such a promise of immunity. time of taking testimony to invoke the Fifth Amendment because it would be
denied any way and the witness would be compelled to testify. It would be
I believe that P.D. 1886 is the first Immunity Act to be enacted in the absurd to invoke a protection which cannot be availed of when compelled to
Philippines. It may be relevant, therefore, to refer to American decisions testify. The time to invoke the immunity is when the testimony is being used
expounding on immunity statutes, more so when a comparison of P.D. 1886 contrary to the granted immunity. Protected by the statutory immunity, a
with such statutes as the U.S. Immunity Act of 1954, 68 Stat. 745, 18 witness cannot even insist on his right to remain silent when testifying.
U.S.C.A. Section 3486, shows a similarity in the protection given by the
statutes. In Ullmann v. United States (350 U.S. 422), the court interpreted the
Immunity Act of 1954 and stated.
The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in
their investigati•ns of attempts to endanger the national security or defense xxx xxx xxx
of the United States by treason, sabotage, espionage, sedition, seditious
conspiracy, and violations of various laws on internal security, atomic or ... Since that time the Court's holding in Brown v. Walker has never been
nuclear energy, and immigration and nationality. The law stated that a witness challenged; the case and the doctrine it announced have consistently and
shall not be excused from testifying or from producing books, papers, or other without question been treated as definitive by this Court, in opinions written,
evidence on the ground that it may tend to incriminate him or subject him to among others, by Holmes and Brandeis, Justices. See, e.g., McCarthy v.
a penalty or forfeiture. The statute then provides: Arndstein 226 U.S. 34, 42; Heike v. United States, 227 U.S. 131, 142. The
1893 statute has become part of our constitutional fabric and has been
But no such witness shall be prosecuted or subjected to any penalty or included in substantially the same terms, in virtually all of the major
forfeiture for or on account of any transaction, matter, or thing concerning regulatory enactments of the Federal Government.' Shapiro v. United States,
which he is compelled, after having claimed his privilege against self- 335 U.S. 1, 6. For a partial list of these statutes, see, Id., 335 U.S. at pages 6-
incrimination, to testify or produce evidence nor shall testimony so compelled 7, note 4. Moreover, the States, with one exception a case decided prior to
be used as evidence in any criminal proceeding ... against him in any court. Brown v. Walker have, under their own constitutions, enunciated the same
doctrine, 8 Wigmore, Evidence (3d ed.), 2281, and have passed numerous
The American statute provides immunity against prosecution, penalties, and statutes compelling testimony in exchange for immunity in the form either of
use of the testimony. P.D. 1886 is of more limited scope. Only the use of the complete amnesty or of prohibition of the use of the compelled testimony.
compelled testimony is proscribed. The witness may still be prosecuted but For a list of such statutes, see 8 Wigmore, Evidence (3d ed.), 2281, n. 11 (pp.

144
478-501) and Pocket Supplement thereto, 2281, n. 11 (pp. 147-157).
(Emphasis supplied) xxx xxx xxx

xxx xxx xxx ... Too many, even those who should be better advised, view this privilege as
a shelter for wrongdoers. They too readily assume that those who invoke it
It is interesting to note how the American Supreme Court in Ullmann treated are either guilty of crime or commit perjury in claiming the privilege. Such a
the immunity not only against the use of the testimony (as under P.D. 1886) view does scant honor to the patriots who sponsored the Bill of Rights as a
but even against prosecution. condition to acceptance of the Constitution by the ratifying States. The
Founders of the Nation were not naive or disregard ful of the interest of justice
xxx xxx xxx ...

Petitioner, however, attempts to distinguish Brown v. Walker. He argues that I, therefore, join the majority in dismissing the petition.
this case is different from Brown v. Walker because the impact of the
disabilities imposed by federal and state authorities and the public in general
such as loss of job, expulsion from labor unions, state registration and
investigation statutes, passport eligibility and general public opprobrium-is DE LA FUENTE, J., concurring:
so oppressive that the statute does not give him true immunity. This, he
alleges, is significantly different from the impact of testifying on the auditor No person shall be compelled to be a witness against himself." 1 This basic
in Brown v. Walker, who could the next day resume his job with reputation right against self- incrimination, which supplanted the inquisitorial methods
unaffected. But, as this Court has often held, the immunity granted need only of interrogating the accused as practiced during the Spanish regime, has
remove those sanctions which generate the fear justifying the invocation of become an indispensable part of our laws since 1900. Pursuant thereto, an
the privilege 'The interdiction of the other Amendment operates only here a accused in a criminal case has the right not only to refuse to answer
witness may possibly expose him to a criminal charge. But if the criminality incriminating questions but also to refuse to take the witness stand. He cannot
has already been taken away, the amendment ceased to apply.' Hale v. Henkel be compelled even to utter a word in his defense. 2 As stressed in Chavez vs.
201 U.S. 43, 67. Here, since the Immunity Act protects a witness who is Court of Appeals, 3 the rule may otherwise be stated as the constitutional
compelled to answer to the extent of his constitutional immunity, he has of right of the accused to remain silent. " The accused can forego testimony 4
course, when a particular sanction is sought to be imposed against him, the without any adverse implication drawn from his decision to do so, The burden
right to claim that it is criminal in nature. (Emphasis supplied). is on the State to establish the guilt of the accused beyond reasonable doubt;
the prosecution must look elsewhere for other "evidence independently and
In United States v. Murdock (284 U.S. 141), the court ruled that "the principle freely secured," The rule forbids what has been considered as "the certainly
established is that full and complete immunity against prosecution by the inhuman procedure of compelling a person 'to furnish the missing evidence
government compelling the witness to answer is equivalent to the protection necessary for his conviction'." According to Justice Harlan, it was intended
furnished by the rule against compulsory self-incrimination. "to shield the guilty and imprudent as well as the innocent and foresighted."
5 Transplanted in this country with the advent of American sovereignty 6 and
P.D. 1886, being an immunity statute should not be given a strained or absurd firmly imbedded in our fundamental law, 7 the said privilege against
interpretation in order to achieve a certain result. If the immunity given by compulsory self-incrimination, which is predicated on grounds of public
the decree is equivalent to the protection furnished by the right against self- policy and humanity, 8 "is fundamental to our scheme of justice" 9 and is one
incrimination, then, paraphrasing Justice Frankfurter in Ullmann, the same of the procedural guarantees of our accusatorial system.
protection given by one of the great landmarks in man's struggle to make
himself civilized must not be interpreted in a hostile or niggardly spirit,

145
1. As I see it, what the prosecution proposed to do in these cases was tragedy." In consonance with these objectives, the law declared that the
to present, as evidence of the alleged accessorial acts of private respondents, privilege was unavailable to an Agrava Board "witness", as follows: "No
the transcripts of their respective testimonies before the Agrava Board. person shall be excused from attending and testifying or from producing other
Confronted by the apparent unwillingness of said respondents to be called to evidence on the ground that his testimony or any evidence requested of him
the witness stand in subsequent criminal proceedings, the prosecution sought may tend to incriminate him, " 13 etc. At the same time, the Board was
to put into the record of these criminal cases (in lieu of private respondents' empowered to summarily hold and punish any person in direct contempt for
testimonies) the said transcripts and other evidence given by them in the "refusal to be sworn or to answer as a witness," its judgment being "final and
course of their testimony before the Agrava Board. If allowed over and unappealable."
despite private respondents' objection, this would be a clear infringement of
the constitutional guarantee that they can invoke in said criminal proceedings, Quite plainly, the constitutional right against compulsory self-incrimination
as all of them did. Since the prosecution cannot require said respondents to could not be invoked by Agrava Board witnesses, The privilege was
testify in the criminal cases before the Sandiganbayan, it stands to reason that suspended or temporarily taken away for purposes of the investigation, in
it is equally disabled from indirectly compelling respondents to give evidence order that the Board would have access to all relevant evidence and all
against themselves by using their Agrava Board testimonies. The prosecution sources of information, not excluding compelled incriminatory statements of
must present evidence "derived from a legitimate source wholly independent probable and possible or potential defendants. An Agrava Board witness was,
of the compelled testimony." 10 under the terms of the quoted provision, placed in a dilemma: (1) to answer
truthfully all questions including those tending to be self-incriminatory, since
2. It is contended, however, that these self- incriminatory testimonies he cannot invoke the privilege; (2) to lie and become liable criminally for
were given voluntarily because they did not claim the constitutional perjury; and (3) to insist on his right to remain silent and be summarily
guarantee before or while giving testimony to the Agrava Board. punished by the Board for direct contempt. It is plain that such a witness was
Voluntariness, I think. cannot be inferred simply from such failure to invoke under compulsion to give self-incriminatory testimony. It was not voluntary.
the privilege. There was no fair warning or notice to the declarant that his Precisely because of its coerced nature (an infringement of his constitutional
testimony would be used against him if incriminatory, unless the privilege is right against self- incrimination), PD No. 1886 promised. in exchange or as a
invoked beforehand or during his testimony. If they were properly warned substitute for the privilege, limited immunity (as provided in the next
and still gave testimony without t invoking the privilege, then it would be succeeding clause, same section), to wit:
clear that they knowingly waived the privilege. Otherwise, it meant at the
most a willingness on their part to help the Agrava Board in its fact-finding ... but his testimony or any evidence produced by him shall not be used
investigation without waiving (a) the immunity granted by law, and (b) the against him in connection with any transaction, matter or thing concerning
constitutional guarantee against self- incrimination in case of subsequent which he was compelled, after having invoked his privilege against self-
prosecution based on their self-incriminatory testimony. For waiver, it is incrimination, to testify or produce evidence. 14
wellsettled, to be effective. "must be certain, unequivocal and intelligently,
understandably and willingly made. " 11 Mere submission to an illegal search Such immunity 15 would bar the prosecution's use against the witness of his
or seizure "is not consent or waiver of objection. 12 The prosecution has the said testimony in subsequent criminal proceedings (wherein he is charged
burden to prove otherwise. The same standard should be observed in self- with offenses related to his testimony). Nevertheless, this would not operate
incrimination cases. to change the involuntary nature of his self- incriminatory testimony. As far
as the witness is concerned, it was "coerced", not freely given, because he
PD No. 1886 (as amended), which created that "independent ad hoc fact- was not fully accorded the "liberty of choice." The law withheld his basic
finding Board," vested it with "plenary powers to determine the facts and freedom to choose between testifying and remaining silent without the risk
circumstances surrounding the killing [of former Senator Aquino] and to of being punished for direct contempt to forego testimony which could
allow for a free, unlimited and exhaustive investigation into all aspects of said possibly be to his detriment.

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In this jurisdiction, more than four decades ago, the late Justice Jose P.
3. I cannot agree with the proposition that the privilege should be Laurela nationalist, constitutionalist and eminent jurist, whose incisive and
invoked by the witness before or while giving testimony to the Agrava Board. authoritative opinions on constitutional questions are often cited by the bench
Section 5 should be reasonably construed and fairly applied to the cases at and the bar- voted to sustain a claim of the constitutional guarantee in
bar, in the light of the accused's constitutional right against compulsory self- Bermudez vs. Castillo. 18 In his concurrence, he said inter alia:
incrimination. The formula of limited-immunity in-lieu-of-the-privilege
contained in said section rendered unnecessary or superfluous, the invocation (1) As between two possible and equally rational constructions, that
of the privilege before the Board. Under said formula, the witness was should prevail which is more in consonance with the purpose intended to be
deprived of the privilege to protect himself against inquisitorial interrogation carried out by the Constitution. The provision ... should be construed with the
into matters that a targeted defendant or virtual respondent can keep to utmost liberality in favor of the right of the individual intended to be secured.
himself in ordinary investigations or proceedings. ...

Even if the provision is susceptible of an interpretation in support of the (2) I am averse to the enlargement of the rule allegedly calculated to
petitioner's stand, it appears that the time for invoking the privilege is not gauge more fully the credibility of a witness if the witness would thereby be
clear enough or certain from the language of the law. Equally plausible and forced to furnish the means for his own destruction. Unless the evidence is
logical is the contrary view that it may be invoked later on when it became voluntarily given, the policy of the constitution is one of protection on
apparent that the prosecution intended to use the testimony given before the humanitarian considerations and grounds of public policy...
Board to secure conviction of the declarant in the subsequent criminal
proceedings. The privilege cannot be deemed waived by implication merely (3) The privilege should not be disregarded merely because it often
as a consequence of failure to claim it before the Board. It bears emphasis affords a shelter to the guilty and may prevent the disclosure of wrongdoing.
that the right of an accused "witnesses" against compulsory self-incrimination Courts can not, under the guise of protecting the public interest and furthering
is predicated on the constitutional guarantee, not on the special law in the ends of justice, treat a sacred privilege as if it were mere excrescence in
question. the Constitution. (Emphasis supplied; at page 493.)

3. In the United States, the generally accepted approach in Fifth In sum, considering the pertinent legal provisions and judicial
Amendment Cases (involving the constitutional guarantee under pronouncements as well as the climate prevailing when the private
consideration) was stated as follows in Johnson vs Zerbst:" 16 It has been respondents testified before the Agrava Board, I find it unavoidable to reach
pointed out that 'courts indulge in every reasonable presumption against a the conclusion that they did so under legal, moral and psychological
waiver of the fundamental rights and that we do not presume acquiescence in compulsion. Their compelled testimonies before the Agrava Board cannot
the loss of such fundamental rights.'" Because, as Dean Griswold of Harvard thereafter be used against them in the cases at bar in view of the immunity
Law School (later, Solicitor General of the United States) eloquently puts it: granted by P.D. No. 1886. They were not obliged to invoke then and there
the constitutional guarantee. If they did, that would have sufficed to afford
[T]he privilege against self-incrimination is one of the great landmark,s in them adequate protection. If they did not, they could do so later on when the
man's struggles to make himself civilized ... [W]e do not make even the most Government prosecutors (in spite of the statutory grant of immunity) decided
hardened criminal sign his own death warrant, or dig his own grave ... We in the subsequent criminal proceedings, to use against them their Agrava
have through the course of history developed a considerable feeling of the Board testimonies. For, as earlier stated, there was no intelligent and knowing
dignity and intrinsic importance of the individual man. Even the evil man is waiver on their part of their constitutional right against self-incrimination.
a human being. 17
Accordingly, and for other reasons well stated in the main separate
concurring opinions, I vote to dismiss the petitions.

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In fact for a declarant to announce his claim of the aforestated privilege prior
to or while testifying before said Fact Finding Board, would irresistibly create
an inference and convey an impression that said witness is burdened with his
ALAMPAY, J., concurring: own awareness that he stands already incriminated in some wrong. To insist
therefore, even in the absence yet of any proceeding against him, that the
I vote for the dismissal of the petition in these consolidated cases. witness invoke the said privilege before the Agrava Fact Finding Board,
would be obviously self-demeaning. Such an effect could not have been
What appears to be the basic and principal issue to which the consideration intended by Section 5 of P.D. 1886, which was even meant to grant to the
of the Court is addressed to is the singular question of whether testimonies witness a benefit rather than a burden. It is more reasonable therefore, to
adduced by the private respondents before the Ad Hoc Agrava Fact Finding conclude that the privilege against self-incrimination would be accorded to
Board and sought to be introduced against them in the Sandiganbayan said witness after he has invoked the same in a subsequent proceeding
wherein they have been accused were rightfully excluded as evidence against wherein he has been charged of a wrong doing, except in a case for perjury.
them. It is only at such time when the necessity of invoking the mantle of the
privilege or the immunity afforded to him by law would arise.
I find untenable the insistence of the petitioner Tanodbayan that the private
respondents should have claimed the right against self-incrimination before It cannot also be rightfully concluded that private respondents had
the said Fact Finding Board and that having omitted doing so, the said intentionally relinquished or abandoned the said right which they claimed
privilege afforded to them by law can no longer be invoked by them before before the Sandiganbayan. The fact that the issue of when and before what
the Sandiganbayan. forum should such claim to the right against self-incrimination be necessarily
presented has provoked much discussion and debate because of divergent
The right claimed by private respondents rests on the fundamental principle views. This has even prompted the submissions to the Court of opinions of
that no person shall be compelled to be a witness against himself as so stated amicus curiae or friends of the court as to how Section 5 of Presidential
in our Constitution and from the fact that Section 5 of P.D. 1886 disallows Decree 1886 should be construed and applied which are however different
the use against him of such testimony or any evidence produced by him from and contrary to the views expressed by the Justices of the
before the said Fact Finding Board, except for perjury. Petitioner argues Sandiganbayan and other legal luminaries. These conflicting views negate the
however, that there was a waiver of this right to self-incrimination when proposition that there was an effective waiver made by the private
respondents proceeded to give their testimonies on various dates before the respondents of their rights.
Agrava Fact Finding Board without formally invoking on said occasions their
right against self-incrimination. It has earlier been stated by this Court that to be effective, such waiver must
be certain and unequivocal and intelligently, understandably and willingly
As private respondents could not have excused themselves from testifying made. (Chavez vs. Court of Appeals, et al., 24 SCRA 663). In the same cited
before said Board as clearly emphasized in the very first clause of Section 5 case, it has been stated that courts indulge in every reasonable presumption
of P.D. 1886, and as at that point of time, there was no reason for the declarant against waiver of fundamental constitutional rights and that we do not
to anticipate or speculate that there would be any criminal charge or any presume acquiescence in the loss of fundamental rights (Citing Johnson vs.
proceeding instituted against them, it would therefore, be unnatural and Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the
illogical to expect that private respondents would even contemplate the need alleged waiver is express or implied, it must be intentional. (Davison vs.
of prefacing their declarations with an invocation before the Fact Finding Klaess 20 N.E. 2d. 744, 748, 280 N.Y. 252; 92 CJS, 1058).
Board of their privilege against self-incrimination.
I find it difficult to accept that private respondents had at any time, ever
intended to relinquish or abandon their right against self-incrimination.

148
Unquestionably, it was the intention of the decree creating the Board to
investigate the Aquino assassination to encourage all who have some
PATAJO, J., concurring: information on any "aspect of said tragedy" to furnish the Board said
information whether they are subpoenaed or issued other forms of
I vote for the dismissal of the petition in these consolidated cases. Said compulsory process such as an invitation and to do so without fear that what
petitions do not merit being given due course and should be dismissed they will say may be used against them. It is in this context that Section 5 of
outright. PD No. 1886 should be viewed. When they testified before the Board, they
were given full assurance that whatever they say before the Board will not be
I hold the view that the testimonies and evidence given before the Agrava used against them. Only if they testify falsely that they may be prosecuted for
Board are inadmissible as evidence against those who testified or gave said perjury. This is to prevent people from preventing the Board from finding out
evidence irrespective of whether said persons were subpoenaed or invited. I the truth about the Aquino assassination by giving false leads or information
believe it is not a condition sine quo non to the non-admissibility of said for ulterior reasons.
evidence that at the time they testified or gave evidence before the Agrava
Board that they had invoked their privilege against self-incrimination. Actually Section 5 of PD No. 1886 falls under that category of statutes which
do not pronounce an entire immunity by forbidding punishment or
The Agrava Board was created as an independent ad hoc fact finding board prosecution for any testimony or evidence given in connection with the
to determine all the facts and circumstances surrounding the assassination of investigation of certain offenses more widely known as immunity statutes,
former Senator Benigno S. Aquino, Jr. on August 21, 1983. It was given but merely prohibit in any criminal prosecution the use of the testimony of
plenary powers to allow for a free, unlimited and exhaustive investigation the witness. Immunity statutes as well as statutes prohibiting the use of
into all the aspects of said tragedy. It was given the power to issue subpoena testimony in any subsequent criminal prosecution have been the expedients
or subpoena duces tecum and "other compulsory processes" requiring the resorted for the investigation of many offenses, chiefly those whose proof or
attendance and testimony of witnesses and the production of any evidence punishment were otherwise impracticable because of the implication in the
relative to any matter under investigation by said Board. offense itself of all who could bear useful testimony.

Those who have been subpoenaed to appear and testify or produce any The expediency and practical utility of this mode of obtaining evidence may
documentary evidence before the Board shall not be excused from testifying as a measure of legislation, be open to argument. But the tradition of it as a
or presenting evidence before said Board on the ground that their testimony lawful method of annulling the privilege against self-incrimination is
or evidence may tend to incriminate them or subject them to penalty or unquestioned in English history." ignore on Evidence, Vol. III, p. 469.
forfeiture. I believe an invitation from the Board is as much a compulsory
process 1 to appear and testify before the Board as a subpoena and one Speaking of this kind of privilege of non-admission of testimony given by the
receiving said invitation cannot also excuse himself from appearing and witness in subsequent prosecutions as allowed by the common law and
testifying before the Board. Petitioners appear to share this view when they modified by subsequent statutes, State vs. Quarles 13 Ark 307, 311, said:
said in subparagraph (c), paragraph 7 of their petition in G.R. No. L-71208-
09. The privilege in question, in its greatest scope, as allowed by the common
law and no one, be he witness or accused, can pretend to claim it beyond its
(c) People were either invited or issued subpoenas, depending upon scope at the common law never did contemplate that the witness might not
their rank and office, to give testimony before the Board and among those be proved guilty of the very crime about which he may be called to testify;
invited were respondents General Fabian C. Ver and Major General Olivas but only that the witness should not be compelled to produce the evidence to
while the rest of the military respondents were issued subpoenas. prove himself guilty of that crime. His privilege, therefore, was not an

149
exemption from the consequences of a crime that he might have committed; 'Nor shall any person be compelled in any criminal case to be a witness
but only an exemption from the necessity of himself producing the evidence against himself.'
to establish his own crime ... So long as it might be lawful to produce in
evidence against an accused party whatever he might before have voluntarily This fifth amendment deals with one of the most cherished rights of the
said as a witness on a prosecution against another, there were no means by American citizen, and has been construed by the courts to mean that the
which the privilege could be made available short of a claim by the witness witness shall have the right to remain silent when questioned upon any
to be silent; and as that was the rule of the common law, this was the common- subject where the answer would tend to incriminate him. Congress by the
law mode of making the privilege available. And that silence was but a mode immunity laws in question, and by each of them, has taken away the privilege
of making the privilege available, and was not of the essence of the privilege contained in the amended it is conceded in argument that this cannot be done
itself, is conclusively proven by all that current of enlightened authority, to without giving to the citizen by way of immunity something as broad and
which we yield our fullest assent, which holds that the privilege has ceased valuable as the privilege thus destroyed We are not without authority on this
when the crime has been pardoned, when the witness has been tried and question. By a previous act, Congress undertook to take away the
acquitted, or is adjudged guilty, or when the prosecution, to which he was constitutional privilege by giving the citizen an equivalent, and the Supreme
exposed, has been barred by lapse of time ... But the Legislature has so Court held in the case of Counselman v. Hitchcock 142 U.S. 547, 12 Sup. Ct.
changed the common-law rule, by the enactment in question in the 195, 35 I Ed., 1110, that the substitution so given was not an equivalent. Then,
substitution of a rule that the testimony required to be given by the act, shall at various times, the immunity acts in question were passed by Congress with
never be used against the witness for the purpose of procuring his conviction full knowledge that in furnishing a substitute for this great right of the citizen,
for the crime or misdemeanor to which it relates, that it is no longer necessary it must give something as broad as the privilege taken away. It might be
for him to claim his privilege as to such testimony, in order to prevent its broader, but it could not be narrower.
being afterwards used against him. And the only question that can possibly
arise under the present state of the law, as applicable to the case now before Now, in my judgment, the immunity law is broader than the privilege given
us, is as to whether our statutory regulations afford sufficient protection to by the fifth amendment, which the act was intended to substitute. The
the witness, responsive to this new rule and to his constitutional guarantee privilege of the amendment permits a refusal to answer. The act wipes out the
against compulsory self-accusation ... offense about which the witness might have refused to answer. The privilege
permits a refusal only as to incriminating evidence. The act gives immunity
Considering the objectives sought to be achieved by PD No. 1886 the for evidence of or concerning the matter covered by the incident and the
provision thereof making testimony and evidence given before the Board evidence need not be self-incriminating. The privilege must be personally
inadmissible in evidence against the ones giving the same, provides claimed by the witness at the time. The immunity flows to the witness by
protection beyond that granted by the Constitutional provision against self- action of law and without any claim on his part. Brown v. Walker, 161 U.S.
incrimination, otherwise it will be constitutionally suspect. Counselman vs. 591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale vs. Henkel (recently decided) 26
Hitchcock, 142 US 547, 35 L Ed 1110. Sup. Ct. 370, 50 L. Ed. -; State v. Quarles 13 Ark. 307, quoted in 142 U.S.
567, 12 Sup. Ct. 199 (35 L. Ed. 1110); People Sharp, 107 N.Y. 427, 14 N.E.
Of relevance are the observations of the District Court, N.D. Illinois, in 319, 1 Am. St. Rep. 851; Brown v. Walker approved in Lamson v. Boyden,
United States vs. Armour & Co., 112 Fed 808, 821, 822: 160 I11. 613, 620, 621, 43 N.E. 781: People v. Butler, St. Foundry, 201 I11.
236, 248, 66 N.E. 349.
All of these immunity acts are relied upon by the individual defendants, and,
while expressed in, slightly varying language, they all mean the same thing, I am further of opinion that the immunity given by the act must be as broad
and each of them is a substitute for the privilege contained in that clause of as the liabilities imposed by the act. The act calls upon the citizen to answer
the fifth amendment to the Constitution, reading: any 'lawful requirement' of the Commissioner. 'Require' means to ask of right
and by authority. Webster's Dictionary. Tenn. Coal Co. v. Saller (C.C.) 37

150
Fed. 545, 547. Anything is a requirement by a public officer which brings before the Agrava Board because no one is being accused before said Board
home to the person called upon that the officer is there officially and desires and no matter how self-incriminating the testimony of said witness is, he runs
compliance. 'Demand' and' require' are synonymous. Miller v. Davis, 88 Me. no risk of being prejudiced, much less convicted by the Agrava Board. It is
454, 34 Atl. 265. The citizen may be punished for refusal to answer such in the prosecution of cases based on the report of said Board that the witness
lawful requirement. I am of opinion that when the Commissioner of should invoke his right against self-incrimination. These private respondents
Corporations, who has power to compel, makes his demand, it is the duty of did just that when they moved for the exclusion in evidence of their statement
the witness to obey. before the Agrava Board. Any other interpretation would defeat the very
purpose of PD No. 1886.
The contention has been made that in order to get immunity the citizen shall
wait until the compulsion becomes irresistible. That is the effect of the
government contention. I am not able to bring my mind to accept that
doctrine. If I am right in saying that immunity flows from the law l, without TEEHANKEE, J., dissenting:
any claim on the part of the defendant and at different times that has been
conceded here in argument then no act of any kind on his part which amounts The majority decision is based on erroneous premises, viz. what the case at
to a claim of immunity, which amounts to setting up a claim of immunity is bar presents a "novel question;" that "this Court has not been previously
demanded by the law. The law never puts a premium on contumacy. A person called upon to rule on issues involving immunity statute" and is burdened
does not become a favored citizen by resistance to a lawful requirement. On with the monumental task" of "laying the criteria ... (to) build future
the contrary, the policy of the law favors the willing giving of evidence jurisprudence on a heretofore unexplored area of judicial inquiry." 1 The fact
whenever an officer entitled to make a demand makes it upon a citizen who is that we have a wealth of settled jurisprudence and precedents, Philippine
has no right to refuse. And it would be absurd and un-American to favor the and foreign, that control the determination of the simple issue at bar and call
citizen who resists and places obstacles in the way of the government as for the setting aside of the exclusion order issued by respondent court
against the citizen who, with a full knowledge of the law, obeys without (Sandiganbayan) which wrongly rules as totally and absolutely inadmissible
resistance the demand of an officer who has the legal right to make the the testimonies given by private respondents General Ver and Olivas and their
demand for something which the citizen has no legal right to refuse. This, six co- respondents (all charged as accessories) as well as all the documents,
then, is the proposition to which we are led. When an officer, who has a legal records and other evidence produced by them before the Fact-Finding Board,
right to make a demand, makes such demand upon a citizen who has no legal notwithstanding that all were represented by counsel 2 and none of them
light to refuse, and that citizen answers under such conditions, he answers invoked the privilege or right against self- incrimination or made any claim
under compulsion of the law. or objection at the time of his testimony before the Board that any question
propounded to him and which he willingly answered called for an
There is no merit then to the contention that private respondents should be incriminating answer against himself.
invoked the privilege against self-incrimination before the Agrava Board for
precisely PD No. 1886 had explicitly provided that the testimony of those The following vital considerations based on settled jurisprudence and
who testified before the Board can not be used against them. It will be a precedents show that respondent court acted with gross error and
meaningless act of supererogation to require that said witnesses before misconception of the applicable principles of the right against self-
answering any question addressed to them must invoke their privilege against incrimination:
self-incrimination. The phrase "after having invoked his privilege against
self-incrimination" in Section 5 of PD No. 1886 to be consistent with the 1. Respondent court grossly disregarded the settled guidelines laid
intention of said decree, should refer to the time that the testimony of the down for trial courts by this Court of Appeal vs. Paylo 3 thru Mr. Justice
witness will be used against him in another proceeding, such as the cases now J.B.L. Reyes, speaking for a unanimous Court, Chat
pending before the Sandiganbayan. It could not refer to the proceedings

151
By so doing [ordering the exclusion of the proferred confessions of the two Commission. 6 As recounted by the late Mr. Justice Conrado Sanchez as
accused upon a ground not raised by counsel but motu proprio by the trial ponente for a unanimous Court in the leading 1968 case of Chavez vs. Court
court, i.e. lack of independent proof of conspiracy] the [trial] court of Appeals 7, "Mr. Justice Malcolm, in expressive language, tells us that this
overlooked that the right to objection is a mere privilege which the parties maxim was recognized in England in the early days 'in a revolt against the
may waive; and if the ground for objection is known and not seasonably thumbscrew and the rack.' An old Philippine case [1904] speaks of this
made, the objection is deemed waived and the [trial] court has no power, on constitutional injunction as 'older than the Government of the United States;'
its own motion, to disregard the evidence (Marella vs. Reyes, 12 Phil. 1) ... as having 'its origin in a protest against the inquisitorial methods of
Suffice it to say that the lower court should have allowed such confessions to interrogating the accused person;' and as having been adopted in the
be given in evidence at least as against the parties who made them, and admit Philippines 'to wipe out such practices as formerly prevailed in these Islands
the same conditionally to establish conspiracy, in order to give the of requiring accused persons to submit to judicial examinations, and to give
prosecution a chance to get into the record all the relevant evidence at its testimony regarding the offenses will which they were charged.' " But Mr.
disposal to probe the charges. At any rate, in the final determination and Justice Sanchez equally stressed that "(an) accused occupies a different tier
consideration of the case, the trial court should be able to distinguish the of protection from an ordinary witness. Whereas an ordinary witness may be
admissible from the inadmissible, and reject what, under the rules of compelled to take the witness stand and claim the privilege as each question
evidence, should be excluded. requiring an incriminating answer is shot at him, 8 an accused may altogether
refuse to take the witness stand and refuse to answer any and all questions."
Trial courts should be liberal in the matter of admission of proof and avoid 9
the premature and precipitate exclusion of evidence on doubtful objections to
its admissibility, citing the Court's long-standing basic ruling and policy in As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez vs.
Prats & Co. vs. Phoenix Ins. Co. 4 that reception and admission of evidence Tengco, 10 "No legal impediment exists against a litigant calling any of the
objected to on doubtful or technical grounds is ultimately the less harmful adverse parties to be his witness. ... True, an accused in a criminal case may
course to either litigant, since the Supreme Court upon appeal would then not be compelled to testify, or to so much as utter a word, even for his own
have all the materials before it necessary to make a correct judgment (instead defense (U.S. vs, Junio, 1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344: U.S. vs.
of returning the case for a new trial which only prolongs the determination of Binayoh 35 Phil. 23; Sec. l(c), Rule 111, Rules of Court). But while the
the case); and constitutional guaranty against self-incrimination protects a person in all
types of cases, be they criminal, civil, or administrative (Art. 111, Sec. 1, No.
There is greater reason to adhere to such policy in criminal cases where 18, Phil. constitution: Bermudez vs. Castillo, 64 Phil, 483), said privilege in,
questions arise as to admissibility of evidence for the prosecution, for the proceedings other than a criminal case against him who invokes it, is
unjustified exclusion of evidence may lead to the erroneous acquittal of the considered an option of refusal to answer incriminating question, and not a
accused or the dismissal of the charges, from which the People can no longer prohibition of inquiry.
appeal 5
Except in criminal cases, there is no rule prohibiting a party litigant from
2. The right against self-incrimination is found in the first sentence of utilizing his adversary as witness. As a matter of fact, section 83 of Rule 123,
section 20 of the Bill of Rights of the 1973 Constitution stating that "No Rules of Court expressly authorizes a party to call an adverse party to the
person shall be compelled to be a witness against himself." This single witness stand and interrogate him. This rule is, of course, subject to the
sentence constituted the whole text of section 18 of the Bill of Rights of the constitutional injunction not to compel any person to testify against himself.
19,7,5 Constitution. This right against self-incrimination has a settled But it is established that the privilege against self-incrimination must be
meaning in jurisprudence which is fully applicable here since the right against invoked at the proper time, and the proper time to invoke it is when a question
self-incrimination was first enforced here as an inviolable rule" in U.S. calling for a incriminating answer is propounded. This has to be so, because
President McKinley's instructions under date of April 7, 1900 to the Taft before a question is asked there would be no way of telling whether the

152
information to be elicited from the witness is self-incriminating or not. As incrimination could be rendered futile." 14 The Miranda pronouncements
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been thus became necessarily a part and parcel of the additional rights granted in
summoned to testify 'cannot decline to appear, nor can he decline to be sworn the cited section 20, as made by the late U.S. Chief Justice Warren in the
as a witness' and 'no claim of privilege can be made until a question calling Miranda case thus: "The prosecution may not use statements, whether
for a incriminating answer is asked, at that time, and, generally speaking, at exculpatory or inculpatory, stemming from custodial interrogation of the
that time only, the claim of privilege may properly be interposed.' (Gonzales defendant unless it demonstrates the use of procedural safeguards effective to
vs. Sec. of Labor, L-6409, February 5, 1954, 11 cit. in Navarro, Criminal secure the privilege against self-incrimination. By custodial interrogation we
Procedure, p. 302.)' mean questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any
Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales, 12 significant way. " 15 These additional Miranda rights could not be invoked
wherein once again the Court, with the concurrence in the result of the now by respondents, as the members of the Fact-Finding Board were not law
Chief Justice, under similar facts held that the petitioner (provincial treasurer) enforcement officers nor were respondents under custodial interrogation.
could not refuse to take the stand as an adverse party in a civil case since the
privilege against self-incrimination "in proceedings other than a criminal case As ordinary witnesses before the Fact-Finding Board and under the settled
against him who invokes it, is considered an option to refuse to answer jurisprudence above-cited, they could not invoke the right to silence and
incriminating questions, and not a prohibition of inquiry" and "must be refuse to take the witness stand. Their right and privilege (which is not self-
invoked when a question calling for an incriminating answer is propounded, executory or automatic ipso jure) was, while testifying, whether voluntarily
because before a question is asked, there would be no way of telling whether or by subpoena, to invoke the privilege and refuse to answer as and when a
the information to be elicited from the witness is self-incriminating or not." question calling for an incriminating answer is propounded. Failure to invoke
The Court therein denied "the petition to prohibit respondent judge from the privilege which is personal does automatically result in its loss ipso facto.
directing petitioner to take the witness stand and testify ... without prejudice The law, usage and settled jurisprudence uniformly require that the privilege
to petitioner's properly invoking the guaranty against self-incrimination when must be asserted or else is lost. The court or board upon its invocation still
questions are propounded to him on the stand. Costs against the petitioner." has to pass upon and rule upon the proper application of the privilege. As
restated by Francisco, the rule and exceptions are: "Certainly, where the
3. All the respondents at bar were in this category of ordinary witnesses witness, on oath declares his belief that the answer to the question would
in the hearings of the Fact-Finding Board. They were not accused in any criminate or tend to criminate him, the court cannot compel him to answer,
criminal case nor were they persons under custodial interrogation who under unless it is clear perfectly, from a careful consideration of all the
the second part of section 20 of the Bill of Rights (consisting of three circumstances of the case, that the witness is mistaken, or is acting in bad
additional sentences 13) were given additional rights to silence and counsel faith, and that the answer cannot possibly have any such tendency. " 16
and to be informed of such rights and to the out-lawing of any confession
obtained in violation of the rights guaranteed in the cited section, by virtue of 4. The view that withal, it is best, although not required, that a warning
the incorporation into the Bill of Rights of the rights granted in the rulings of to the witness of his option to refuse an answer to incriminating questions as
the U.S. Supreme Court in the Miranda-Escobedo cases. As noted by former advanced even by the Tanodbayan at the hearing dates back to a century ago
Chief Justice Enrique M. Fernando, "(I)t amounts to an acceptance of the and has been long discarded as "witnesses are usually well enough advised
applicability in this jurisdiction of the epochal American Supreme Court beforehand by counsel as to their rights when such issues impend" and "as
decision in Miranda vs. Arizona, the opinion being rendered by Chief Justice general knowledge spread among the masses and the preparation for
Warren. It is thus now a part of our fundamental law. Such doctrine was testimony became more thorough." Thus, "ignore, the bible on the law of
promulgated in response to the question of the admissibility of statements evidence so remarks and adds that "there is no reason for letting a wholesome
obtained from an individual interrogated under police custody, considering custom degenerate into a technical rule." —
that such a time and under the stress of such conditions, his right against self-

153
It is plausible to argue that the witness should be warned and notified, when curiae at the hearing on the merits of August 15, 1985, they were all too eager
a incriminating fact is inquired about, that he has an option to refuse an to testify and make a strong effort to gain support from the Fact-Finding
answer; and this view was often insisted upon, a century ago, by leaders at Board and the public for the military version and report that the assassin was
the Bar, Galman who was forthwith gunned down by the military escorts and guards
at the tarmac. It would have been ridiculous, if not bordering on officiousness
xxx xxx xxx and impropriety, to warn them as the highest ranking military officers of their
option of refusal to answer incriminatory questions and also as the majority
But there are opposing considerations. In the first place, such a warning holds, 18 of their right to remain silent. When respondents generals appeared
would be an anomaly; it is not given for any other privilege; witnesses are in before the Board, respondent Ver precisely made the opening statement that
other respects supposed to know their rights; and why not here? In the next
place, it is not called for by principle, since, until the witness refuses, it can GENERAL VER:
hardly be said that he is compelled to answer; nor is it material that he
believes himself compelled; for the Court's action, and not the witness' state I welcome this opportunity, Madame Justice, members of this Honorable
of mind, must be the test of compulsion. Again, the question can at any rate Board, Dean, Gentlemen this opportunity to assist ... this Honorable Board in
only be one of judicial propriety of conduct, for no one supposes that an the quest for truth and justice, We all deplore this tragic incident which is
answer given under such an erroneous belief should be struck out for lack of now the subject of inquiry, This Board, this Honorable Board is mandated to
the warning. Finally, in practical convenience, there is no demand for such conduct a free, full and exhaustive investigation into the matter under
rule; witnesses are usually well enough advised beforehand by counsel as to investigation We all hope that my testimony, madame, will somehow dispel
their rights when such issues impend, and judges are too much concerned any misconception, or any misinformation surrounding this tragic incident. I
with other responsibilities to be burdened with the provision of individual am now ready to answer your questions.
witnesses' knowledge; the risk of their being in ignorance should fall rather
upon the party summoning than the party opposing. JUSTICE AGRAVA:

Nevertheless, it is plain that the old practice was to give such a warning, when Now, General, at the outset, we give the right and the privilege for every
it appeared to be needed. But, as general knowledge spread among the witness to be assisted by counsel Do you have your counsel with you this
masses, and the preparation for testimony became more thorough, this morning?
practice seems to have disappeared in England, so far at least as any general
rule was concerned. GENERAL VER:

In the United States, both the rule and the trial custom vary in the different I did not bring any counsel, madame, but ... if I need a counsel, madame, I
jurisdictions. No doubt a capable and painstaking judge will give the warning, could probably look for... probably ...
where need appears, but there is no reason for letting a wholesome custom
degenerate into a technical rule. 17 JUSTICE AGRAVA:

But from the environmental facts and circumstances of the Fact-Finding Yes?
Board hearings, to require such a warning to the witness of his option of
refusal to answer incriminatory questions would have been an exercise in GENERAL VER:
absurdity and futility, As is a matter of public knowledge, respondents had
concluded in their investigation that Galman was the assassin of the late I may call Fiscal Parena or the Public Coordinator. I was talking to Atty. Tan
Senator Aquino. As observed by former Senator Ambrosio Padilla as amicus to assist me, in the protection of my constitutional rights ...

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asked to testify, was to determine whether they were really conspirators and
JUSTICE AGRAVA: if so, the extent of their participation in the said conspiracy?" In fact, the
respondent court's decision and separate opinions as well as the majority
Yes. decision at bar and the separate concurring opinions all fail to specify the
particular portions of the testimonies of respondents or any specific question
GENERAL VER: and answer that can be in any way deemed to be self-incriminating. Indeed,
even if we assumed arguendo that they were warned of their right against
... if it is necessary: self-incrimination and tried absurdly to invoke the same, there is no specific
question and answer by way of testimony that could be pointed to them as
ATTY. TAN: having been made under compulsion for the simple reason that their
testimony was in full support of their own military report that Galman was
Your Honor, please, it is part of the function of this office to help the witness Aquino's killer and for which they were trying to gain the Board's acceptance.
if he doesn't have counsel, and so, if the General is willing to have me, I will In the all too brief and inadequate deliberations held on August 20 and 21,
happily serve as counsel, Your Honor. 1985 after the hearing on the merits of August 15, 1985, without reaching a
definite conclusion, the ponente reported and I share this view from a cursory
JUSTICE AGRAVA: examination, for want of material time, of the excluded testimonies only since
the excluded documents, records and other evidence produced by them were
All right. not before the Court that there is nothing in the excluded testimonies that
could in any way be deemed self-incriminatory perse. So there would be no
GENERAL VER: legal basis whatever for their exclusion. But the ponente circulated only last
August 26th at noon his draft for dismissal of the petitions which were filed
Thank you. 19 only last month. And its release has been set for August 30th.

Respondent Olivas likewise testified before the Board in response to its 7. There has not been enough time to weigh and ponder on the far-
invitation to assist it in determining the true facts and circumstances reaching consequences of the decision at bar. The decision orders the total
surrounding the double killing. and unqualified exclusion of the testimonies and evidence produced before
the Fact-Finding Board by the eight respondents charged as accessories "even
6. The majority decision would go around this by asserting without though (they) failed to claim (their) privilege before giving the incriminating
basis in the record that "(A)ll the private respondents, except Generals Ver testimony" (citing 21 Am. Jur. 2d. 218). But the cited compilation of
and Olivas, are members of the military contingent that escorted Sen. Aquino American State and Federal Law expressly cautions that "The question
while embarking from the plane that brought him home to Manila on that whether a witness must claim exemption . on from self-incrimination to be
fateful day. Being at the scene of the crime as such, they were among the first entitled to immunity from subsequent prosecution must in each case be
line of suspects in the subject assassination. General Ver on the other hand, determined in the light of constitutional and statutory provisions in the
being the highest military authority of his co-petitioners labored under the jurisdiction where the question arises" (21 Am. Jur. 2d. 151). It recites on the
same suspicion and so with General Olivas, the first designated investigator same cited page that "Under a statute granting immunity to persons who have
of the tragedy, but whom others suspected, felt and believed to have bungled been compelled to testify, one who has appeared voluntarily and testified
the case. The papers, especially the foreign media, and rumors from ugly without claiming his privilege against self-incrimination or one who has
wagging tongues, all point to them as having, in one way or another appeared and testified pursuant to a void subpoena or one addressed to
participated or have something to do, in the alleged conspiracy that brought another person, without claiming the privilege, cannot say he has been
about the assassination. Could there still be any doubt then that their being compelled to testify, and therefore, he is not entitled to immunity." And the

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necessity of claiming the privilege against self-incrimination before an Sergeants Pablo Martinez, Tomas Fernandez, Leonardo Mojica, Pepito Torio,
administrative officer or board such as the Fact Finding Board is recognized Prospero Bona and Aniceto Acupido cannot be used against them and this
to be essential, thus: proscription did attach instantly when they testified before the same Board.
Verily, the prohibition stands, irrespective of the purpose for which the
This is not only equally true as for the case of testimony in a judicial trial, but prosecution would like to use this evidence.
the explicitness is here even more essential, and particularly where the
administrative officer makes a general demand for documents or testimony The total and unqualified exclusion of the testimony and evidence granted by
upon a broad class of topics. The reason is clear. The officer has testimonial respondent court and sustained by the majority decision herein refers
powers to extract a general mass of facts, or which some, many, or most will expressly to the eight respondents charged as accessories. Would not this
certainly be innocent and unprivileged, some may be privileged unprecedented grant of immunity and exclusion of testimony be now claimed
communications (e.g., between attorney and client) whose privilege remains by the rest of the twenty-two accused charged as principals except for the
unaffected by the statute defining his powers, and some may be privileged as lone civilian? As reported by the press, respondent court has suspended its
self-incriminating but liable to become demandable by overriding this trial and placed the pressure on the Court to rush its decision, as "(T)he so-
privilege with a grant of immunity. Among these mass of facts, then, the called 'trial of the century' has been delayed since last week on motion of the
officer will seek those which are relevant to his administrative inquiry; he defense panel which had argued that the high court's decision on the
cannot know which of them fall within one or another privilege in particular, admissibility of Ver's testimonies was a vital prerequisite to the presentation
which of them tend to criminate at all, or to criminate a particular person; if of witnesses for the defense. " 20 Would this not result in the People holding
such facts are there, he may not desire or be authorized to exercised the option an empty bag of excluded testimonies and evidence, since to all intents and
of granting immunity so as to obtain them; his primary function and power is purposes all respondents-accused testified before the Fact-Finding Board?
to obtain the relevant facts at large, and his power to obtain a special and Would their testimonies be inadmissible for purposes even of impeaching
limited class of facts by grant of immunity is only a secondary one, and one such testimony as they may now give before respondent court? These
which he will not exercise till a cause arises, if even then. ponderous questions need not confront us had we but required respondent
court to hew to the settled procedure and doctrine of Yatco (supra, par. I
For these reasons of practical sense, then, as well as for the inherent hereof) of giving the prosecution a chance to get into the record its relevant
requirements of principle already noticed for judicial officers, it is evidence until the final determination and consideration of the case, for the
particularly true for an inquiry by an administrative officer that the witness unjustified exclusion of evidence of the prosecution may lead to the erroneous
must explicitly claim his privilege, and specifically the privilege against self- acquittal of the accused or dismissal of the charges, from which the People
incrimination, and must then be overridden in that claim, before immunity can no longer appeal.
can take effect. (VII Wigmore on Evidence, 2282, pp. 517-518)
8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886
The concurrence of Justice Vera Cruz sounds even more ominous thus: cited in respondent court's questioned order and bolstered by the majority
decision's "novel" conclusion and ruling that the cited section quoted therein
I believe that where evidence is produced by a witness in accordance with the 21 requires a claim from the witness of the privilege against self-
conditions of the statute granting immunity such as P.D. No. 1886, as incrimination but "forecloses under threat of contempt proceedings [under
amended, its immunity provisions attach instantly and it is entirely immaterial section 4] against anyone who makes such a claim. But the strong testimonial
what use the investigation authority makes of it (People ex rel. Massarsky v. compulsion imposed by section 5 of P.D. 1886 viewed in the light, of the
Adams, 47 N.Y.S. 2d 375, 62 N.E. 2d 244). actions provided in section 4, infringes upon the witness' right against self-
incrimination. As a rule, such infringement of the constitutional right renders
Consequently, the evidence, given before the Agrava Board by the accused inoperative the testimonial compulsion, meaning, the witness cannot be
in the instant cases namely, Generals Fabian Ver and Prospero Olivas, and compelled to answer UNLESS a co-extensive protection in the form of

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IMMUNITY is offered. Hence, under the oppressive compulsion of P.D. statute) granted such absolute immunity and does not contain the conditional
1886, immunity must in fact be offered to the witness before he can be clause requiring that the witness invoke his privilege against self-
required to answer, so as to safeguard his sacred constitutional right. But in incrimination. Section 10 of the cited Act reads:
this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional Sec. 10. Upon any investigation or proceeding for violation of this Act no
rights are, therefore, in jeopardy. The only way to cure the law of its person shall be excused from giving testimony upon the ground that such
unconstitutional effects is to construe it in the manner as if IMMUNITY had testimony would tend to convict him of a crime, but such testimony cannot
in fact been offered. We hold, therefore, that in view of the potent sanctions be received against him upon any criminal investigation or proceeding;
imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. Provided, however, That no person so testifying shall be exempt from
1886, the testimonies compelled thereby are deemed immunized under prosecution or punishment for perjury committed in the course of any
Section 5 of the same law. The applicability of the immunity granted by P.D. proceeding or investigation had by virtue of [his Act. (1 CPS [Rev. Ed.], 190)
1886 cannot be made to depend on a claim of the privilege against self-
incrimination which the same law practically strips away from the witness. " But when the statute grants conditional immunity (and not absolute as in the
Emphasis supplied). above-quoted section 10 of the Anti-Gambling Act.), then it explicitly
contains the cited conditional clause in section 5 of P.D. 1886 granting
It bears emphasis that none of respondents made any such claim against self- immunity only when "he is compelled to testify after having invoked his
incrimination. The "oppressive compulsion" if it may be so-called, consists privilege against self-incrimination. "
of a maximum penalty of P200. fine and/or 30 days imprisonment for direct
contempt. As indicated, it would be ridiculous for any respondent to 1 make This is but in accord with long-settled Philippine jurisprudence cited above
such claim when his testimony was but in full support of their own military (supra. paragraph 2 hereof), that the witness has an option of refusal to answer
theory and report that Galman killed Aquino. incriminatory questions, which he loses ipso facto if he does not invoke the
privilege and nevertheless answers the questions. Here, in review of the
The language of the cited section 22 is plain and simple. It excuses no one national and international importance of the case with the country's very
from testifying and producing books and records but grants him immunity prestige at stake, the P.D. added the incentive of offering immunity: "The
from prosecution (except for perjury) after having invoked his privilege purpose of immunity provisions is to aid prosecuting officers by inducing
against self-incrimination " There is nothing oppressive about such criminals or their confederates to turn state's evidence and tell on each other,
compulsion in exchange for immunity provided the witness invokes his and to enable prosecuting officers to procure evidence which would otherwise be
aims his privilege a against self-incrimination. denied to them because of the constitutional right against self-incrimination,
and at the same time to protect every person from gluing testimony which
In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to directly or indirectly would be helpful to the prosecution in securing an
dismiss outright the petitions. opined that The clause 'concerning which lie is indictment or a conviction. The provisions for immunity are or should be as
compelled to testify after having invoked his privilege against self- broad as or co-extensive with the constitutional provisions granting the
incrimination' is surplusage. It is in conflict with the first clause which, as privilege against self-incrimination." (21 Am. Jur. 2d. Criminal Law, sec.
already stated, gives immunity to the witness except in case of perjury. So, 148). It is bad enough that no state's evidence turned up to tell on his
section 5 should be read as if that clause were not there.This is contrary to the confederates in exchange of immunity. But to call the cited section " a booby
rules of statutory construction that there is no room for construction when tile trap for the unsuspecting or unwary witness" unless it was construed as
text is plain and simple, i.e. requires invocation and that the provisions must granting absolute and unconditional immunity from the very fact of merely
be taken in context and all the words taken into account and given their full testifying as a witness before the Board without claiming immunity nor
meaning. The Anti-Gambling Law, Act No. 1757, enacted on October 9, giving any incriminatory information that would aid the state to determine
1907 by the Philippine Commission (probably the first Philippine immunity the true facts about Aquino's assassination would be a sell-out. It would make

157
a shambles of the letter and spirit as well as the salutary intent and objective killed Senator Aquino. The Board unanimously rejected the military report
of the Decree to ferret out the truth and obtain state witnesses. and found that the killings were the product of criminal conspiracy. A brief
flashback is herein appropriate: Within 60 seconds from his being led away
9. The truncated and distorted reading of the cited section 5 which by soldiers from his plane that had just landed at the Manila International
consists of a single integrated paragraph and splitting it into two isolated parts Airport on Sunday, August 21, 1983 at past one p.m., former Senator Benigno
so as to allow the privilege against self-incrimination (which was already lost S. Aquino, Jr. who was coming home after three years of self-exile in the U.S.
for failure to claim it in the Board hearings) to be resurrected and raised in a laid dead face down on the tarmac, with his brain smashed by a bullet fired
much later time frame and "subsequent criminal proceeding" is against all point blank into the back of his head by a murderous assassin. 23 Also lying
usage and rules of statutory construction, not to mention the long line of dead on the tarmac, face up, near the senator was another man, to be Identified
above-cited jurisprudence to the contrary. And if there still be doubt, we need much later as Rolando Galman, whom the soldiers admittedly gunned down.
only reproduce hereunder the similar wording of Senate Joint Resolution 137 The military pointed to him as Aquino's assassin, who had somehow
(Public Law 88-202) after which section 5 of P.D. 1886 was patterned. Said allegedly penetrated the air-tight security of close to 2000 men ringing the
law was enacted by the U.S. Congress in December 1963 to empower the airport. The military version met with great public disbelief and skepticism.
Warren Commission to issue subpoenas requiring the testimony of witness The first fact-finding commission created under Administrative Order No.
and the production of evidence relating to any matter under its investigation. 469 dated August 24, 1983 and P.D. 1879 dated August 27, 1983 was the
The Report of the President's Commission on the Assassination of President object of several suits charging bias and that the President "had already
John F. Kennedy in its foreword on page X stated that "In addition, the prejudged the case, by rejecting the version of foreign media that it is one of
resolution authorized the Commission to compel testimony from witnesses the soldiers, supposed to guard Aquino, who fatally shot him." 24 The said
claiming the privilege against self-incrimination under the fifth amendment commission was dissolved per P.D. 1886, dated October 14, 1983 (later
to the U.S. Constitution by providing for the grant of immunity to persons amended by P.D. 1903 dated February 8, 1984) which created the ad hoc
testifying under such compulsion." (Emphasis supplied). The cited Public Fact-Finding Board with plenary powers to investigate "the treacherous and
Law reads: vicious assassination (which) has to all Filipinos become a national tragedy
and national shame ... (and) to determine the facts and circumstances
(e) No person shall be excused from attending and testifying or from surrounding the killing and to allow for a free, unlimited and exhaustive
producing books, records, correspondence, documents, or other evidence in investigation into all the aspects of said tragedy." The Board after extensive
obedience to a subpoena, on the ground that the testimony or evidence hearings, submitted to the President their majority report on October 24,
required of him may tend to incriminate him or subject him to a penalty or 1984, while the chairman former Court of Appeals Justice Corazon Agrava
forfeiture but no individual shall be prosecuted or subjected to any penalty or submitted her minority report one day earlier on October 23, 1984. All five
forfeiture (except demotion or removal from office) for or on account of any members of the Board unanimously rejected the official military version that
transaction matter, or thing concerning which he is compelled, after having Galman was the assassin and instead found that there was criminal
claimed his privilege against self-incrimination to testify or produce conspiracy. Their main difference of opinion is that the four-member majority
evidence, except that such individual so testifying shall not be exempt from found twenty-five military men (headed by respondents Generals Ver, Olivas
prosecution and punishment for perjury committed in so testifying. and Luther Custodia) and one civilian "indictable for the premeditated killing
(Emphasis supplied). of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August
21, 1983." The chairman's report confined the conspiracy to seven men
10. As already indicated above, none of the respondents, public and headed by General Custodia. The Tanodbayan, after conducting the
private, has indicated the specific portions of their testimony that they have preliminary investigation, adopted the Board's majority report recommending
been "oppressively compelled" to glue, in alleged violation of their privilege the indictment of the accused as "involved in this conspiracy, either as
against self-incrimination. The reason for this is that they all testified principals, upon the theory that the act of one is the act of all, or as
voluntarily and eagerly to support the military report and version that Galman accessories, for attempting to hide the corpus of the offense." The eight

158
accessories so indicted are the private respondents herein named headed by 6. The fact is, the invocation by Ver, et al. of such right would have
respondents Ver and Olivas. (The chairman in her minority report had found been self-defeating first, it would have prevented them from presenting
that "(T)he indications are that the plotters had agreed that only one would be evidence in substantiation of the 'Galman Theory,' which they wished the
the assassin; that the others can either point to Galman as the killer; or they Board to accept; and second, it might have exposed to some extent their real
can state that they did not see the shooting; and that they will give false objective, which was to deceive the Board.
testimony to mislead and confuse.
7. It would have been incongruous for Ver, et al. to have claimed that
11. Only the former lawyers of the Fact-Finding Board created under their testimony would incriminate them as accessories to the murder of
P.D. No. 1886, consisting of Messrs. Andres R. Narvasa, Bienvenido A. Tan, Aquino when they were, by testifying, actually in process of committing that
Jr., Mario E. Ongkiko and Francisco A. Villa have given us the answer that precise crime, becoming accessories.
there is nothing incriminatory per se in the testimonies of the respondents, in
the Memorandum submitted by them, to wit: 8. Neither PD 1886 nor the Constitution should be used as a shield for
crime, fraud or trickery.
I. The so-called 'Galman Theory that it was Rolando Galman who
killed Senator Aquino is either true or untrue, a matter the 9. The foregoing propositions were ignored by the
SANDIGANBAYAN will have to resolve. SANDIGANBAYAN. Instead, with all due respect, it has —

II. If the 'Galman Theory' be true as advocated by the military officers a. given Section 5, PD 1886 a strained construction not justified by and
concerned then the testimony of Ver, et al. is true. It is not self-incriminatory. contrary to its plain language;
There would then be no reason to exclude it.
b. given Section 20, Article IV, Constitution, a meaning at odds with
If, on the other hand, the theory be untrue as the prosecution in turn advocates its plain terms and contrary to relevant decisions of this Honorable Supreme
then the testimony of Ver, et al. is untrue. It is incriminatory of them, because Court; and
by giving it and thereby seeking to hide the crime, they incriminated
themselves. Withal there would also be no reason to exclude it. Surely, after c. sanctioned the use of legal provisions to shield persons from
their plot to deceive the Board had been exposed, they should not now be criminal liability arising from their perfidious testimony before the Fact-
allowed to use the law to bring about exclusion of the very proof of their Finding Board.
deception.
There is no legal ground nor justification for the exclusion order. It is for
In short, the testimonies of respondents could only be deemed incriminating respondent court, upon consideration of the evidence for the People, without
if it be found that they sought thereby to hide or cover up the crime and thus any exclusion, and of the evidence for the defense in due course, to render its
incriminate themselves, as accessories to the murder of Senator Aquino. The verdict of guilty or not guilty.
former Fact-Finding Board lawyers amplify their theory, as follows:
With a word of commendation for the former Fact-Finding Board lawyers
5. The plain language of Section 5, PD 1886 precludes its and former Senator Ambrosio Padilla and Atty. Ramon Gonzales, whose
interpretation as extending immunity to all testimony or evidence produced memoranda as amid curiae, have been of great assistance, I vote, accordingly,
before the Board in obedience to subpoena regardless of whether the witness to grant the petitions at bar and to set aside the questioned exclusion order.
giving such evidence invokes the privilege against self-incrimination or not.

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MELENCIO-HERRERA, J., dissenting: proper complaint with the appropriate government agency. ... (Emphasis
supplied)
I vote to grant the Petitions and to reverse the ruling of the Sandiganbayan.
The inquiry before the Board was a general one. It was not directed against
The resolution of the issue revolves around the interpretation to be given to any particular individual or individuals. Private respondents did not testify
Sec. 5 of PD No. 1886, reading as follows: therein as suspects or as accused persons. There should therefore be no
hindrance to a criminal prosecution.
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in It has been held that where an inquiry by a grand jury is a general one and is
obedience to a subpoena issued by the Board on the grounds that his not directed against a particular individual the fact that on the basis of the
testimony or the evidence required of him may tend to incriminate him or information elicited, grounds for a criminal prosecution may evolve against
subject him to penalty or forfeiture; but his testimony or any evidence a witness, may not serve as a bar to such prosecution (U.S. v. Okin D.C.N.J.,
produced by him shall not be used against him in connection with any 154 F. Supp. 553; Benson v. Goldstein, 124 N.Y.S. 2d 452) even though he
transaction, matter, or thing concerning which he is compelled, after having testified before the grand jury without being warned of his constitutional
invoked his privilege against self-incrimination, to testify or produce privileges against self- incrimination. (U.S. v. Okin supra) (Emphasis
evidence, except that such an individual so testifying shall not be exempt supplied)
from prosecution and punishment for perjury committed in so testifying, nor
shall he be exempt from demotion or removal from office. (Emphasis The right against self incrimination is not a prohibition of inquiry but an
supplied) option of refusal to answer incriminating questions Cabal vs. Kapunan, 6
SCRA 1059 [1962]). The kernel of the privilege is testimonial compulsion.
As I read the law, Section 5 does not require that the person testifying before Whether or not any specific portion of the testimonies of private respondents
the Agrava Fact Finding Board (the Board, for short) shall first invoke the is incriminating should be determined by the Sandiganbayan itself. The claim
privilege against self-incrimination. Under said statute it is obvious that he against self-incrimination should be invoked when a specific question, which
has no such privilege. is incriminating in character, is put to a witness in the subsequent proceeding.
There should be no automatic "immunity bath" of the entire testimony before
But what is the effect of the second part providing that his testimony or any the Board for immunity does not extend to such of the evidence as is not
evidence produced by him shall not be used against him in connection with privileged.
any transaction, matter or thing concerning which he is compelled, after
having invoked his privilege against self-incrimination, to testify or produce ... But it is established that the privilege against self-incrimination must be
evidence, except in case of perjury? invoked at the proper time, and the proper time to invoke it is when a question
calling for an incriminating answer is propounded. This has to be so, because
To my mind, the above portion does not grant to a person who has testified before a question is asked there would be no way of telling whether the
before the Board absolute or total immunity. It should not operate as a shield information to be elicited from the witness is self-incriminating or not. As
against criminal liability specially since, under Section 12 of the same stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
Decree, the Board may initiate the filing of the proper complaint if its finding summoned to testify 'cannot decline to appear, nor can be decline to be sworn
so warrant. Thus, as a witness' and 'no claim or privilege can be made until a question calling
for a incriminating answer is asked; at that time, and generally speaking, at
SEC. 12.The findings of the Board shall be made public. Should the findings that time only, the claim of privilege may be interposed. (Gonzales vs. Sec.
warrant the prosecution of any person the Board may initiate the filing of the of Labor, et al., 94 Phil. 325, 326 [19541).

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Moreover, the issue actually addresses itself to a question of admissibility or
competency of evidence and not to its credibility. Whether the evidence so RELOVA, J., dissenting:
admitted is to be given any probative weight or credence is best addressed to
the Sandiganbayan. It should be recalled that the Board was not unanimous The issue raised in these two petitions is whether the testimonies and other
in its assessment of the testimonies given. evidence produced by the private respondents before the Agrava Board may
be used as evidence against them before the Sandiganbayan
There are additional considerations. While the right against self-incrimination
is indubitably one of the most fundamental of human rights, Section 5 of PD Respondent Sandiganbayan rejected their testimonies on the ground that
No. 1886 should be construed so as to effect a practical and beneficent "under statutes providing in substance that no person shall be excused from
purpose and not in such a manner as to hinder or obstruct the administration testifying or furnishing evidence on the ground that the testimony or evidence
of criminal justice. may tend to incriminate him, but that no person shall be subject to indictment
or prosecution for anything concerning which he may testify or furnish
... Any statute which, while it compels him to testify, protects the witness if evidence, it has been held that one who testifies concerning criminal offenses
he does disclose the circumstances of his offense and the sources from which when required to do so is entitled to immunity from prosecution even though
or the means by which evidence of its commission or of his connection with he fails to claim his privilege before giving the incriminating testimony (21
it may be obtained or made effectual for his subsequent prosecution and Am Jur 2d 218). He could not be required, in order to gain the immunity
conviction is sufficient to comply with the constitutional requirements. Such which the law afforded, to go though the formality of an objection or protest
a statute, however should be construed to effect a practical and beneficent which, however made, would be useless (VIII Wigmore 516)." (p. 4,
purpose, namely, at the same time to secure the witness in his constitutional Resolution of Sandiganbayan)
rights and to permit the prosecuting officer to secure evidence of a crime. It
should not be construed so as to unduly impede, hinder, or obstruct the Section 5 of Presidential Decree No. 1886 provides that:
administration of criminal justice." Brown v. Walker 161 US 591, 16 Sup.
Ct. 644, 40 L. Ed. 819. (People ex rel. Hunt vs. Lane, 116 N.Y.S. 990, 132 SEC. 5. No person shall be excused from attending and testifying or from
App. Div. 406) producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his testimony
The objective in all this exercise is to arrive at the truth. "Though the or the evidence required of him may tend to incriminate him or subject him
constitutional provisions for the protection of one who appears ... must be to penalty or forfeiture; but his testimony or any evidence produced by him
liberally and fairly applied, the interests of the people are also entitled to shall not be used against him in connection with any transaction, matter or
consideration" (Wharton's Criminal Evidence, 11th Ed., Vol. 1, p. 609; thing concerning which he is compelled, after having invoked his privilege
People vs. Coyle 15 N.Y.S. 2d 441, 172 Mis 593). Specially so since, in the against self- incrimination to testify or produce evidence ... (Emphasis
language of PD No. 1886 itself, the "treacherous and vicious assassination of supplied.)
former Senator Benigno S. Aquino, Jr. on August 21, 1983, has to all
Filipinos become a national tragedy and national shame. " Pursuant to the above Presidential Decree no one can refuse to testify or
furnish evidence before the Fact Finding Board. However, his testimony or
In the interest of eliciting the truth, the excluded testimonies should be any evidence produced shall not be used against him after he invoked the
admitted, leaving it to the Sandiganbayan to determine which specific privilege against self-incrimination. Stated differently, the privilege against
questions and answers are to be excluded because they are incriminatory, and self-incrimination must be invoked when the question at the hearing before
which should be given credibility, in found to be competent and admissible. the Board, calling for an incriminating answer is propounded; otherwise,
before any question is asked of the witness, he would not know whether the
information to be elicited from him is incriminating or not.

161
the Sandiganbayan, would violate their constitutional or human rights the
In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this Court right to procedural due process, the right to remain silent, and the right against
held that "the privilege against self-incrimination must be invoked at the self- incrimination.
proper time, and the proper time to invoke it is when question calling for a
incriminating answer is propounded. This has to be so, because before a That their testimonies and other evidence they submitted before the FFB in
question is asked there would be no way of telling whether the information these criminal cases are incriminatory, is confirmed by the very fact that such
to be elicited from the witness is self-incriminating or not. As stated in Jones testimonies and evidence were the very bases of the majority report of the
on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to FFB recommending the prosecution of private respondents as accessories.
testify 'cannot decline to appear, nor can he decline to be sworn as a witness'
and 'no claim of privilege can be made until a question calling for a It should be stressed that the basic purposes of the right against self-
incriminating answer is asked; at that time, and generally speaking, at that incrimination are (1) humanity or humanitarian reasons to prevent a witness
time only, the claim of privilege may properly be interposed.'" And, since it or accused from being coerced, whether physically, morally, and/or
is a personal right to be exercised only by the witness, this privilege against psychologically, into incriminating himself, and (2) to protect the witness or
self-incrimination may be waived by him and, when so waived, cannot accused from committing perjury, because the first law of nature is self-
thereafter be asserted. The privilege is waived by his voluntary offer to testify preservation.
by, answering questions without objecting and/or claiming the privilege.
The utilization in the prosecution against them before the Sandiganbayan of
When private respondents gave testimonies before the Board they were not the testimonies and other evidence of private respondents before the FFB
defendants but witnesses invited and/or subpoenaed "to ventilate the truth collides with Section 1, Section 17 and Section 20 of the Bill of Rights of the
thorougly free, independent and dispassionate investigation." They could not 1973 Constitution:
refuse or withhold answers to questions propounded to them unless the
inquiry calls for an incriminating answer and a timely objection is raised. Section 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal of the
In the case at bar, since the private respondents answered questions from the laws.
Fact Finding Board without claiming the privilege against self-incrimination
they cannot now be allowed to invoke the immunity clause provided in xxx xxx xxx
Section 5 of Presidential Decree No. 1886.
Section 17, No person shall be held to answer for a criminal offense
I vote to grant the petitions. without due process of law.

xxx xxx xxx

Section 20. No person shall be compelled to be a witness against


himself. Any person under investigation for the commission of an offense
Separate Opinions 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
MAKASIAR, C.J., concurring: vitiates the free will shall be used against him. Any confession obtained in
violation of this Section shall be inadmissible in evidence.
To admit private respondents' testimonies and evidence before the Fact-
Finding Board (FFB) against them in the criminal prosecution pending before

162
The Bill of Rights constitutes the reservation of the sovereign people against, to the dismissal or termination of the case, the accused can always invoke his
as well as the limitation on, the delegated powers of government. These rights constitutional right against double jeopardy.
thus enshrined need no express assertion. On the contrary, the police and
prosecution officers of the country should respect these constitutional If Section 5 of P.D. 1886 were interpreted otherwise, said section would
liberties as directed in the recent decision in the Hildawa and Valmonte cases become a booby trap for the unsuspecting or unwary witness, A witness
(G.R. Nos. 67766 and 70881, August 14, 1985). The established summoned either by subpoena or by Invitation to testify before the FFB under
jurisprudence is that waiver by the citizen of his constitutional rights should Section 5, cannot refuse, under pain of contempt, to testify or produce
be clear, categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US evidence required of him on the ground that his testimony or evidence may
458, 464, cited in Abriol vs. Homeres, 84 Phil. 525 [1949] and in Chavez vs. tend to incriminate or subject him to a penalty or forfeiture; because the same
CA, 24 SCRA 663, 682-683). Section 5 prohibits the use of such testimony or evidence which may tend to
incriminate him in any criminal prosecution that may be filed against him.
The use of testimonies and other evidence of private respondents before the The law or decree cannot diminish the scope and extent of the guarantee
FFB against them in the criminal cases subsequently filed before the against self-incrimination or the right to remain silent or the right against
Sandiganbayan would trench upon the constitutional guarantees that "no being held to answer for a criminal offense without due process of law, or
person shall be deprived of life, liberty, or property without due process of against deprivation of his life, liberty or property without due process of law.
law ... that "no person shall be held to answer for a criminal offense without
due process of law" and that (Section 17, Article IV, 1973 Constitution), that As a matter of fact, numerous decisions culled by American jurisprudence
"no person shall be compelled to be a witness against himself. ..." and that " are partial to the rule that immunity statutes which compel a citizen to testify,
a person has the right to remain silent ..." (Section 20, Article IV, 1973 should provide an immunity from prosecution that is as co-extensive, as total
Constitution). and as absolute as the guarantees themselves (Jones Law on Evidence,
Chapter XVIII, Section 863, pp. 1621-1623; Kastigar vs. US 1972, 406 US
There can be no implied waiver of a citizen's right against self-incrimination 441).
or of his right to remain silent.
Even if the witness testified pursuant to an invitation, the invitation does not
Any such renunciation cannot be predicated on such a slender or tenuous reed remove the veiled threat of compulsion, because as stated in the Chavez case,
as a dubious implication. Otherwise, it would be easier to lose the human supra.
rights guaranteed by the Bill of Rights than to protect or preserve them; it
would be easier to enslave the citizen than for him to remain free. Such a Compulsion as it is understood here does not necessarily connote the use of
result was never intended by the Founding Fathers. violence; it may be the product of unintentional statements. Pressures which
operate to overbear his will, disable him from making a free and rational
The first sentence of Section 20 of the Bill of Rights stating that "no person choice, or impair his capacity for rational judgment would in our opinion be
shall be compelled to be a witness against himself," applies to both the sufficient. So is moral coercion attending to force testimony from the
ordinary witness and the suspect under custodial investigation. unwilling lips of the defendant (Chavez vs. Court of Appeals, 24 SCRA 663,
679).
In support of the rule that there can be no implied waiver of the right against
self-incrimination and all other constitutional rights by the witness or by the The summons issued to private respondents has been euphemistically called
accused, is the fact that the right against double jeopardy can only be as an invitation, instead of a subpoena or subpoena duces tecum, as a sign of
renounced by the accused if the criminal case against him is dismissed or respect for the important and high positions occupied by private respondents.
otherwise terminated with his express consent. Without such express consent But the effect of such an invitation thus worded is the same as a subpoena or
subpoena duces tecum. Precisely, the phraseology of Section 5 of P.D. 1886

163
entices the unsuspecting private respondents to testify before the FFB, by counsel. He could prosecute private respondents on evidence other than their
dangling in the same Section 5 the assurance that their testimony or the testimony and the evidence they gave before the FFB.
evidence given by them will not be used against them in a criminal
prosecution that may be instituted against them. As heretofore stated, the private respondents were compelled to testify before
the FFB whether by subpoena or by invitation which has the effect of a
At the very least, their consent to testify was under such misapprehension. subpoena as provided for in Section 5 of P.D. 1886; because private
Hence, there can be no clear, categorical, knowing and intelligent waiver of respondents then believed, by reading the entire Section 5, that the testimony
the right to remain silent, against self-incrimination, against being held to they gave before the FFB could not be used against them in the criminal cases
answer for a criminal offense without due process of law, and against being subsequently filed before the Sandiganbayan. Because the Board was merely
deprived of life, liberty or property without due process of law under such a fact-finding board and that it was riot conducting a criminal prosecution the
misapprehension. private respondents were under the impression that there was no need for
them to invoke their rights to remain silent, against self-incrimination and
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is against being held for a criminal offense without due process of law.
accentuated by the difference of opinion thereon among the counsels in these
cases and among members of this Court. And it is basic in criminal law that It should be recalled that the counsel of the FFB after submitting the majority
doubts should be resolved liberally in favor of the accused and strictly against report, refused to cooperate with the Tanodbayan in these cases with the
the government. pompous declaration that, after submitting their majority report, he
automatically became functus oficio. Was his refusal to cooperate with, and
The procedural due process both under Sections 1 and 17 of the Bill of Rights, assist, the Tanodbayan in the prosecution of these cases, born of the
Article IV of the 1973 Constitution, simply means, in the language of Justice realization that the FFB majority report is as weak as it was precipitate? And
Frankfurter, the sporting Idea of fair play. The FFB and its counsel did not when the Tanodbayan has now his back to the wall, as it were, by the ruling
inform the private respondents herein of their right to remain silent and their of the respondent Sandiganbayan excluding the testimonies and other
right against self-incrimination, and that their testimonies may be utilized evidence of private respondents herein on the ground that the use of their
against them in a court of law, before they testified. This is not fair to them, testimonies and other evidence will incriminate them, the FFB counsel,
and hence, they were denied procedural due process. without being requested by the Tanodbayan, now files a memorandum in
support of the position of the Tanodbayan. what is the reason for this turn-
It should be stressed that the FFB was merely a fact-finding agency for the about to save his report from the fire which they started with such
purpose of gathering all the possible facts that may lead to the Identity of the enthusiasm?
culprit. Such testimonies may provide leads for the FFB, its counsels and
agents to follow up. The FFB and its counsels cannot rely solely on such As above emphasized, it is the duty of the police and the prosecuting
testimonies to be used against the private respondents in these criminal cases. authorities to respect their rights under the Constitution as we stated in the
It should be recalled that the FFB had ample funds for the purpose of recent Hildawa and Valmonte cases, supra.
accomplishing its object. As a matter of fact. it refunded several million pesos
to the government after it concluded its investigation. The Board and its The grant of immunity under Section 5 of P.D. 1886 would be meaningless
counsel could have utilized the said amount to appoint additional agents to if we follow the posture of petitioners herein. Such a posture would be correct
look for witnesses to the assassination. In this respect, the FFB counsel could if the phrase "after having invoked his privilege against self- incrimination"
be faulted in not utilizing the funds appropriated for them to ferret out all were transposed as the opening clause of Section 5 to read a follows "After
evidence that will Identify the culprit or culprits. The failure of the FFB's having invoked his privilege against self-incrimination, no person shall be
counsel to use said funds reflects on the initiative and resourcefulness of its excused from attending and testifying ... etc."

164
Said Section 5 has two clauses and contemplates two proceedings. The first No person shall be excused from attending and testifying or from producing
clause from "No person shall be excused ... etc." up to "penalty or forfeiture books, records, correspondence, documents, or other evidence in obedience
refers to the proceeding before the FFB. The second clause after the semi- to a subpoena issued by the Board on the ground that his testimony or the
colon following the word "forfeiture which begins with but his testimony or evidence required of him may tend to incriminate him or subject him to
any evidence produced by him shall not be used against him in connection penalty or forfeiture; but his testimony or any evidence produced by him shall
with any transaction, matter, or thing concerning which he is compelled, after not be used against him in connection with any transaction, matter or thing
having invoked his privilege against self-incrimination to testify . refers to a concerning which he is compelled. after having invoked his privilege against
subsequent criminal proceeding against him which second clause guarantees self-incrimination, to testify or produce evidence, except that such individual
him against the use of his testimony in such criminal prosecution, but does so testifying shall not be exempt from prosecution and punishment for perjury
not immunize him from such prosecution based on other evidence. committed in so testifying, nor shall he be exempt from demotion or removal
from office.
The private respondents herein, if the contention of the prosecution were
sustained, would be fried in their own fat. Consequently, the petition should 6. This section means that any person who is invited or summoned to
be dismissed. appear must obey and testify as to what he knows. Even if the testimony tends
to incriminate him he must testify. Even if he claims his constitutional right
against self-incrimination, he still must testify. However, his testimony
CONCEPCION, JR., J., concurring: cannot be used against him in any subsequent proceeding, provided that at
the time it is being presented, he invokes his privilege against self-
1. Let me preface my opinion by quoting from my dissent in Pimentel. incrimination. His testimony, no matter what it may be, cannot in any way
1 cause him harm.

1. We are committed to the mandate of the Rule of Law. We resolve The only exception is if the testimony he gave is false, in which case he can
controversies before Us without considering what is or what might be the be prosecuted and punished for perjury. He may also be demoted or removed
popular decision. No. We never do. We only consider the facts and the law. from office.
Always the facts and the law.
7. The testimonies given by private respondents before the Agrava
2. The issue before Us is not I repeat not the guilt or innocence of Gen. Board are therefore not admissible against them in their trial before the
Fabian C. Ver, Major Gen. Prospero Olivas, and others for their alleged Sandiganbayan, having invoked their privilege against self-incrimination.
participation in the assassination of former Senator Benigno S. Aquino, Jr.

3. The issue is: Are the testimonies given by them before the Agrava PLANA, J., concurring:
Board admissible in evidence against them in their trial before the
Sandiganbayan? I would like to underscore some considerations underlying my concurrence:

4. The issue therefore is purely a question of law. It involves the 1. According to the Constitution, no person shall be compelled to be a
interpretation of Sec. 5, P.D. No. 1886 and calls for the application of the witness against himself. But the law (PD 1886) which created the Agrava
Rule of Law. Board decrees that no person shall be excused from testifying on the ground
of self- incrimination. If the law had stopped after this command, it would
5. Sec. 5, P.D. No. 1886 reads: have been plainly at variance with the Constitution and void. lt was to ward
off such a Constitutional infirmity that the law provided for immunity against

165
the use of coerced testimony or other evidence, an immunity which, to be mere fact that they were admitted in evidence as part of private respondents'
constitutionally adequate, must give at least the same measure of protection testimony before the Agrava Board. In other words, evidence otherwise
as the fundamental guarantee against self-incrimination. available to the prosecution, such as official documents, do not become
barred just because they have been referred to in the course of the testimony
2. Presidential Decree 1886 was not intended either to restrict or of private respondents and admitted in evidence as part of their testimony
expand the constitutional guarantee against self-incrimination. On the one They may still be subpoenaed and offered in evidence. Conceivably, some
hand, a law cannot restrict a constitutional provision. On the other hand, PD objections might be raised; but the evidence will be unfettered by the
1886 was adopted precisely to coerce the production of evidence that exclusionary rule in PD 1886.
hopefully would unmask the killers of Senator Aquino, although the
compulsory process is accompanied by "use" immunity.
ESCOLIN, J., concurring:
3. It is argued that the right against self- incrimination must have been
invoked before the Agrava Board if the use of evidence given therein against I concur in the dismissal of the petitions. The admission in evidence of the
the witness in a subsequent criminal prosecution is to be barred. I did not testimonies of private respondents given before the Agrava Board would
agree. constitute a violation of their right against self- incrimination guaranteed
under Section 20, Article IV of the Constitution. I subscribe to the majority
I fail to see why to preserve pursuant to law (PD 1886) one's constitutional view that Section 5 of P.D. 1886 cannot be constitutionally tenable, unless a
right against self-incrimination, one has to offer resistance to giving grant of immunity is read into it vis-a-vis the compulsion it imposes upon a
testimony a resistance which the said law itself says is futile and cannot witness to testify. Otherwise stated, Section 5 of P.D. 1886 should be
prevail, as no witness by its specific injunction can refuse to testify. interpreted as an immunity statute, which, while depriving one of the right to
remain silent, provides an immunity from prosecution that is as co-extensive,
4. The constitutional right against self-incrimination may be waived as total and as absolute as the guarantees themselves. (Jones Law on
expressly. It may also be waived impliedly by speaking when one has the Evidence, Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S.,
option to hold his tongue. Waiver by implication presupposes the existence 1972, 406 US 441).
of the right to keep silent. Thus, when one speaks because the law orders him
to do so, his action is not really voluntary and therefore his testimony should Clearly, this is how the private respondents understood the legal provision
not be deemed an implied waiver of his constitutional right against self- under consideration. For ably assisted as they were by counsel, they would
incrimination. not have allowed themselves to be deliberately dragged into what the Chief
Justice would call a "booby trap". Viewed from another angle, therefore, it
5. Presidential Decree 1886 does not give private respondents absolute could not be truly said that private respondents had waived their right against
immunity from prosecution, It only bars the use against them of the evidence self- incrimination in a manner that is clear, categorical, knowing and
that was elicited from them by the Agrava Board. If there are other evidence intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol v. Homeres,
available, private respondents are subject to indictment and conviction. 84 Phil. 525 and Chavez v. CA, 24 SCRA 663).

6. Moreover, the evidence given to the Agrava Board is not, in my


view, completedly immunized. What PD 1886 bars from use is only the GUTIERREZ, JR., J., concurring:
testimony of the witness who testified before the Agrava Board and whatever
was presented as part of his testimony, as such. PD 1886 could not have I concur in the majority opinion penned by Justice Serafin R. Cuevas and in
intended to convert non-confidential official documents into shielded public the pithy separate opinion of Justice Nestor B. Alampay but would like to add
records that cannot be used as evidence against private respondents, by the some personal observations.

166
the mighty to the lowy must be given the fullest measure of protection under
This case furnishes an opportunity to appreciate the workings of our criminal the Bill of Rights if our constitutional guarantees are to have any meaning.
justice system.
In addition to the right against self- incrimination, of not being compelled to
The prosecutions which led to this petition serve as a timely reminder that all be a witness against one's self, so ably discussed by Justice Cuevas in the
of us-civilian or military, layman or judge, powerful or helpless- need the Bill Court's opinion, I am constrained by considerations of basic fairness to vote
of Rights. And should the time ever come when like the respondents we may against granting the petition.
have to invoke the Constitution's protection, the guarantees of basic rights
must be readily available, in their full strength and pristine glory, unaffected The private respondents were called to testify before the Agrava Commission.
by what is currently popular or decreed and heedless of whoever may be The decree creating the commission stated that no person may refuse to attend
involved and testify or to produce evidence before it on the ground that what he says
or produces may incriminate him. But since the witness is compelled to give
In many petitions filed with this Court and lower courts, the military has often all he knows or possesses in effect shorn by law of his right not to incriminate
been charged with riding roughshod over the basic rights of citizens. Officers himself the decree states that the evidence wrung from that witness may not
and enlisted men in the frontlines of the fight against subversion or rebellion be used against him later. This is, simply speaking, what the petition is all
may, in the heat of combat, see no need to be concerned over such ,niceties" about.
as due process, unreasonable searches and seizures, freedom of expression,
and right to counsel. They are best reminded that these rights are not luxuries The respondents may be prosecuted as indeed they have been prosecuted.
to be discarded in times of crisis. These rights are the bedrock of a free and They may eventually be convicted if the evidence warrants conviction.
civilized society. They are the reason why we fight so hard to preserve our however, they may not be convicted solely on the evidence which came from
system of government. And as earlier stated, there may come times when we their own mouths or was produced by their own hands. The evidence must
may have to personally invoke these basic freedoms for ourselves. When we come from other sources. It would be the height of unfairness and contrary to
deny a right to an accused, we deny it to ourselves. due process if a man is required to state what he knows even if it would
incriminate him, is promised immunity if he talks freely, and is later
The decision of the Court underscores the importance of keeping inviolate convicted solely on the testimony he gave under such a promise of immunity.
the protections given by the Bill of Rights. Acts which erode or sacrifice
constitutional rights under seductive claims of preserving or enhancing I believe that P.D. 1886 is the first Immunity Act to be enacted in the
political and economic stability must be resisted. Any lessening of freedom Philippines. It may be relevant, therefore, to refer to American decisions
will not at all increase stability. The liberties of individuals cannot be expounding on immunity statutes, more so when a comparison of P.D. 1886
preserved by denying them. with such statutes as the U.S. Immunity Act of 1954, 68 Stat. 745, 18
U.S.C.A. Section 3486, shows a similarity in the protection given by the
The dividing line between legitimate dissent or opposition on one hand and statutes.
subversion or rebellion on the other may be difficult to pinpoint during
troubled times. The lesson of this petition is that those charged with The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in
suppressing the rebellion and those who sit in courts of justice should ever be their investigations of attempts to endanger the national security or defense
vigilant in not lumping legitimate dissenters and rebels together in one of the United States by treason, sabotage, espionage, sedition, seditious
indiscriminate classification. conspiracy, and violations of various laws on internal security, atomic or
nuclear energy, and immigration and nationality. The law stated that a witness
An abiding concern for principles of liberty and justice is especially shall not be excused from testifying or from producing books, papers, or other
imperative in periods of crisis and in times of transition. And all persons from

167
evidence on the ground that it may tend to incriminate him or subject him to among others, by Holmes and Brandeis, Justices. See, e.g., McCarthy v.
a penalty or forfeiture. The statute then provides: Arndstein 226 U.S. 34, 42; Heike v. United States, 227 U.S. 131, 142. The
1893 statute has become part of our constitutional fabric and has been
But no such witness shall be prosecuted or subjected to any penalty or included in substantially the same terms, in virtually all of the major
forfeiture for or on account of any transaction, matter, or thing concerning regulatory enactments of the Federal Government.' Shapiro v. United States,
which he is compelled, after having claimed his privilege against self- 335 U.S. 1, 6. For a partial list of these statutes, see, Id., 335 U.S. at pages 6-
incrimination, to testify or produce evidence nor shall testimony so compelled 7, note 4. Moreover, the States, with one exception a case decided prior to
be used as evidence in any criminal proceeding ... against him in any court. Brown v. Walker have, under their own constitutions, enunciated the same
doctrine, 8 Wigmore, Evidence (3d ed.), 2281, and have passed numerous
The American statute provides immunity against prosecution, penalties, and statutes compelling testimony in exchange for immunity in the form either of
use of the testimony. P.D. 1886 is of more limited scope. Only the use of the complete amnesty or of prohibition of the use of the compelled testimony.
compelled testimony is proscribed. The witness may still be prosecuted but For a list of such statutes, see 8 Wigmore, Evidence (3d ed.), 2281, n. 11 (pp.
the prosecution will have to look for evidence other than the words of the 478-501) and Pocket Supplement thereto, 2281, n. 11 (pp. 147-157).
accused given before the Agrava Commission. (Emphasis supplied)

In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted xxx xxx xxx
with the validity of the 1893 Immunity Act. Brown was subpoenaed to testify
before a grand jury investigating railroad anomalies. lie refused to testify on It is interesting to note how the American Supreme Court in Ullmann treated
grounds of self- incrimination, arguing that the Immunity Act compelling him the immunity not only against the use of the testimony (as under P.D. 1886)
to testify was unconstitutional. The Court ruled that "(W)hile the but even against prosecution.
constitutional provision in question is justly regarded as one of the most
valuable prerogatives of the citizen, its object is fully accomplished by the xxx xxx xxx
statutory immunity and we are therefore of opinion that the witness was
compellable to answer." In other words, the statutory immunity takes the Petitioner, however, attempts to distinguish Brown v. Walker. He argues that
place of the invocation of the constitutional guarantee. There is no need at the this case is different from Brown v. Walker because the impact of the
time of taking testimony to invoke the Fifth Amendment because it would be disabilities imposed by federal and state authorities and the public in general
denied any way and the witness would be compelled to testify. It would be such as loss of job, expulsion from labor unions, state registration and
absurd to invoke a protection which cannot be availed of when compelled to investigation statutes, passport eligibility and general public opprobrium-is
testify. The time to invoke the immunity is when the testimony is being used so oppressive that the statute does not give him true immunity. This, he
contrary to the granted immunity. Protected by the statutory immunity, a alleges, is significantly different from the impact of testifying on the auditor
witness cannot even insist on his right to remain silent when testifying. in Brown v. Walker, who could the next day resume his job with reputation
unaffected. But, as this Court has often held, the immunity granted need only
In Ullmann v. United States (350 U.S. 422), the court interpreted the remove those sanctions which generate the fear justifying the invocation of
Immunity Act of 1954 and stated. the privilege 'The interdiction of the other Amendment operates only here a
witness may possibly expose him to a criminal charge. But if the criminality
xxx xxx xxx has already been taken away, the amendment ceased to apply.' Hale v. Henkel
201 U.S. 43, 67. Here, since the Immunity Act protects a witness who is
... Since that time the Court's holding in Brown v. Walker has never been compelled to answer to the extent of his constitutional immunity, he has of
challenged; the case and the doctrine it announced have consistently and course, when a particular sanction is sought to be imposed against him, the
without question been treated as definitive by this Court, in opinions written, right to claim that it is criminal in nature. (Emphasis supplied).

168
freely secured," The rule forbids what has been considered as "the certainly
In United States v. Murdock (284 U.S. 141), the court ruled that "the principle inhuman procedure of compelling a person 'to furnish the missing evidence
established is that full and complete immunity against prosecution by the necessary for his conviction'." According to Justice Harlan, it was intended
government compelling the witness to answer is equivalent to the protection "to shield the guilty and imprudent as well as the innocent and foresighted."
furnished by the rule against compulsory self-incrimination. 5 Transplanted in this country with the advent of American sovereignty 6 and
firmly imbedded in our fundamental law, 7 the said privilege against
P.D. 1886, being an immunity statute should not be given a strained or absurd compulsory self-incrimination, which is predicated on grounds of public
interpretation in order to achieve a certain result. If the immunity given by policy and humanity, 8 "is fundamental to our scheme of justice" 9 and is one
the decree is equivalent to the protection furnished by the right against self- of the procedural guarantees of our accusatorial system.
incrimination, then, paraphrasing Justice Frankfurter in Ullmann, the same
protection given by one of the great landmarks in man's struggle to make 1. As I see it, what the prosecution proposed to do in these cases was
himself civilized must not be interpreted in a hostile or niggardly spirit, to present, as evidence of the alleged accessorial acts of private respondents,
the transcripts of their respective testimonies before the Agrava Board.
xxx xxx xxx Confronted by the apparent unwillingness of said respondents to be called to
the witness stand in subsequent criminal proceedings, the prosecution sought
... Too many, even those who should be better advised, view this privilege as to put into the record of these criminal cases (in lieu of private respondents'
a shelter for wrongdoers. They too readily assume that those who invoke it testimonies) the said transcripts and other evidence given by them in the
are either guilty of crime or commit perjury in claiming the privilege. Such a course of their testimony before the Agrava Board. If allowed over and
view does scant honor to the patriots who sponsored the Bill of Rights as a despite private respondents' objection, this would be a clear infringement of
condition to acceptance of the Constitution by the ratifying States. The the constitutional guarantee that they can invoke in said criminal proceedings,
Founders of the Nation were not naive or disregard ful of the interest of justice as all of them did. Since the prosecution cannot require said respondents to
... testify in the criminal cases before the Sandiganbayan, it stands to reason that
it is equally disabled from indirectly compelling respondents to give evidence
I, therefore, join the majority in dismissing the petition. against themselves by using their Agrava Board testimonies. The prosecution
must present evidence "derived from a legitimate source wholly independent
of the compelled testimony." 10
DE LA FUENTE, J., concurring:
2. It is contended, however, that these self- incriminatory testimonies
No person shall be compelled to be a witness against himself." 1 This basic were given voluntarily because they did not claim the constitutional
right against self- incrimination, which supplanted the inquisitorial methods guarantee before or while giving testimony to the Agrava Board.
of interrogating the accused as practiced during the Spanish regime, has Voluntariness, I think. cannot be inferred simply from such failure to invoke
become an indispensable part of our laws since 1900. Pursuant thereto, an the privilege. There was no fair warning or notice to the declarant that his
accused in a criminal case has the right not only to refuse to answer testimony would be used against him if incriminatory, unless the privilege is
incriminating questions but also to refuse to take the witness stand. He cannot invoked beforehand or during his testimony. If they were properly warned
be compelled even to utter a word in his defense. 2 As stressed in Chavez vs. and still gave testimony without t invoking the privilege, then it would be
Court of Appeals, 3 the rule may otherwise be stated as the constitutional clear that they knowingly waived the privilege. Otherwise, it meant at the
right of the accused to remain silent. " The accused can forego testimony 4 most a willingness on their part to help the Agrava Board in its fact-finding
without any adverse implication drawn from his decision to do so, The burden investigation without waiving (a) the immunity granted by law, and (b) the
is on the State to establish the guilt of the accused beyond reasonable doubt; constitutional guarantee against self- incrimination in case of subsequent
the prosecution must look elsewhere for other "evidence independently and prosecution based on their self-incriminatory testimony. For waiver, it is

169
wellsettled, to be effective. "must be certain, unequivocal and intelligently,
understandably and willingly made. " 11 Mere submission to an illegal search Such immunity 15 would bar the prosecution's use against the witness of his
or seizure "is not consent or waiver of objection. 12 The prosecution has the said testimony in subsequent criminal proceedings (wherein he is charged
burden to prove otherwise. The same standard should be observed in self- with offenses related to his testimony). Nevertheless, this would not operate
incrimination cases. to change the involuntary nature of his self- incriminatory testimony. As far
as the witness is concerned, it was "coerced", not freely given, because he
PD No. 1886 (as amended), which created that "independent ad hoc fact- was not fully accorded the "liberty of choice." The law withheld his basic
finding Board," vested it with "plenary powers to determine the facts and freedom to choose between testifying and remaining silent without the risk
circumstances surrounding the killing [of former Senator Aquino] and to of being punished for direct contempt to forego testimony which could
allow for a free, unlimited and exhaustive investigation into all aspects of said possibly be to his detriment.
tragedy." In consonance with these objectives, the law declared that the
privilege was unavailable to an Agrava Board "witness", as follows: "No 3. I cannot agree with the proposition that the privilege should be
person shall be excused from attending and testifying or from producing other invoked by the witness before or while giving testimony to the Agrava Board.
evidence on the ground that his testimony or any evidence requested of him Section 5 should be reasonably construed and fairly applied to the cases at
may tend to incriminate him, " 13 etc. At the same time, the Board was bar, in the light of the accused's constitutional right against compulsory self-
empowered to summarily hold and punish any person in direct contempt for incrimination. The formula of limited-immunity in-lieu-of-the-privilege
"refusal to be sworn or to answer as a witness," its judgment being "final and contained in said section rendered unnecessary or superfluous, the invocation
unappealable." of the privilege before the Board. Under said formula, the witness was
deprived of the privilege to protect himself against inquisitorial interrogation
Quite plainly, the constitutional right against compulsory self-incrimination into matters that a targeted defendant or virtual respondent can keep to
could not be invoked by Agrava Board witnesses, The privilege was himself in ordinary investigations or proceedings.
suspended or temporarily taken away for purposes of the investigation, in
order that the Board would have access to all relevant evidence and all Even if the provision is susceptible of an interpretation in support of the
sources of information, not excluding compelled incriminatory statements of petitioner's stand, it appears that the time for invoking the privilege is not
probable and possible or potential defendants. An Agrava Board witness was, clear enough or certain from the language of the law. Equally plausible and
under the terms of the quoted provision, placed in a dilemma: (1) to answer logical is the contrary view that it may be invoked later on when it became
truthfully all questions including those tending to be self-incriminatory, since apparent that the prosecution intended to use the testimony given before the
he cannot invoke the privilege; (2) to lie and become liable criminally for Board to secure conviction of the declarant in the subsequent criminal
perjury; and (3) to insist on his right to remain silent and be summarily proceedings. The privilege cannot be deemed waived by implication merely
punished by the Board for direct contempt. It is plain that such a witness was as a consequence of failure to claim it before the Board. It bears emphasis
under compulsion to give self-incriminatory testimony. It was not voluntary. that the right of an accused "witnesses" against compulsory self-incrimination
Precisely because of its coerced nature (an infringement of his constitutional is predicated on the constitutional guarantee, not on the special law in
right against self- incrimination), PD No. 1886 promised. in exchange or as a question.
substitute for the privilege, limited immunity (as provided in the next
succeeding clause, same section), to wit: 3. In the United States, the generally accepted approach in Fifth
Amendment Cases (involving the constitutional guarantee under
... but his testimony or any evidence produced by him shall not be used consideration) was stated as follows in Johnson vs Zerbst:" 16 It has been
against him in connection with any transaction, matter or thing concerning pointed out that 'courts indulge in every reasonable presumption against a
which he was compelled, after having invoked his privilege against self- waiver of the fundamental rights and that we do not presume acquiescence in
incrimination, to testify or produce evidence. 14

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the loss of such fundamental rights.'" Because, as Dean Griswold of Harvard granted by P.D. No. 1886. They were not obliged to invoke then and there
Law School (later, Solicitor General of the United States) eloquently puts it: the constitutional guarantee. If they did, that would have sufficed to afford
them adequate protection. If they did not, they could do so later on when the
[T]he privilege against self-incrimination is one of the great landmark,s in Government prosecutors (in spite of the statutory grant of immunity) decided
man's struggles to make himself civilized ... [W]e do not make even the most in the subsequent criminal proceedings, to use against them their Agrava
hardened criminal sign his own death warrant, or dig his own grave ... We Board testimonies. For, as earlier stated, there was no intelligent and knowing
have through the course of history developed a considerable feeling of the waiver on their part of their constitutional right against self-incrimination.
dignity and intrinsic importance of the individual man. Even the evil man is
a human being. 17 Accordingly, and for other reasons well stated in the main separate
concurring opinions, I vote to dismiss the petitions.
In this jurisdiction, more than four decades ago, the late Justice Jose P.
Laurela nationalist, constitutionalist and eminent jurist, whose incisive and
authoritative opinions on constitutional questions are often cited by the bench ALAMPAY, J., concurring:
and the bar- voted to sustain a claim of the constitutional guarantee in
Bermudez vs. Castillo. 18 In his concurrence, he said inter alia: I vote for the dismissal of the petition in these consolidated cases.

(1) As between two possible and equally rational constructions, that What appears to be the basic and principal issue to which the consideration
should prevail which is more in consonance with the purpose intended to be of the Court is addressed to is the singular question of whether testimonies
carried out by the Constitution. The provision ... should be construed with the adduced by the private respondents before the Ad Hoc Agrava Fact Finding
utmost liberality in favor of the right of the individual intended to be secured. Board and sought to be introduced against them in the Sandiganbayan
... wherein they have been accused were rightfully excluded as evidence against
them.
(2) I am averse to the enlargement of the rule allegedly calculated to
gauge more fully the credibility of a witness if the witness would thereby be I find untenable the insistence of the petitioner Tanodbayan that the private
forced to furnish the means for his own destruction. Unless the evidence is respondents should have claimed the right against self-incrimination before
voluntarily given, the policy of the constitution is one of protection on the said Fact Finding Board and that having omitted doing so, the said
humanitarian considerations and grounds of public policy... privilege afforded to them by law can no longer be invoked by them before
the Sandiganbayan.
(3) The privilege should not be disregarded merely because it often
affords a shelter to the guilty and may prevent the disclosure of wrongdoing. The right claimed by private respondents rests on the fundamental principle
Courts can not, under the guise of protecting the public interest and furthering that no person shall be compelled to be a witness against himself as so stated
the ends of justice, treat a sacred privilege as if it were mere excrescence in in our Constitution and from the fact that Section 5 of P.D. 1886 disallows
the Constitution. (Emphasis supplied; at page 493.) the use against him of such testimony or any evidence produced by him
before the said Fact Finding Board, except for perjury. Petitioner argues
In sum, considering the pertinent legal provisions and judicial however, that there was a waiver of this right to self-incrimination when
pronouncements as well as the climate prevailing when the private respondents proceeded to give their testimonies on various dates before the
respondents testified before the Agrava Board, I find it unavoidable to reach Agrava Fact Finding Board without formally invoking on said occasions their
the conclusion that they did so under legal, moral and psychological right against self-incrimination.
compulsion. Their compelled testimonies before the Agrava Board cannot
thereafter be used against them in the cases at bar in view of the immunity

171
As private respondents could not have excused themselves from testifying case, it has been stated that courts indulge in every reasonable presumption
before said Board as clearly emphasized in the very first clause of Section 5 against waiver of fundamental constitutional rights and that we do not
of P.D. 1886, and as at that point of time, there was no reason for the declarant presume acquiescence in the loss of fundamental rights (Citing Johnson vs.
to anticipate or speculate that there would be any criminal charge or any Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the
proceeding instituted against them, it would therefore, be unnatural and alleged waiver is express or implied, it must be intentional. (Davison vs.
illogical to expect that private respondents would even contemplate the need Klaess 20 N.E. 2d. 744, 748, 280 N.Y. 252; 92 CJS, 1058).
of prefacing their declarations with an invocation before the Fact Finding
Board of their privilege against self-incrimination. I find it difficult to accept that private respondents had at any time, ever
intended to relinquish or abandon their right against self-incrimination.
In fact for a declarant to announce his claim of the aforestated privilege prior
to or while testifying before said Fact Finding Board, would irresistibly create
an inference and convey an impression that said witness is burdened with his PATAJO, J., concurring:
own awareness that he stands already incriminated in some wrong. To insist
therefore, even in the absence yet of any proceeding against him, that the I vote for the dismissal of the petition in these consolidated cases. Said
witness invoke the said privilege before the Agrava Fact Finding Board, petitions do not merit being given due course and should be dismissed
would be obviously self-demeaning. Such an effect could not have been outright.
intended by Section 5 of P.D. 1886, which was even meant to grant to the
witness a benefit rather than a burden. It is more reasonable therefore, to I hold the view that the testimonies and evidence given before the Agrava
conclude that the privilege against self-incrimination would be accorded to Board are inadmissible as evidence against those who testified or gave said
said witness after he has invoked the same in a subsequent proceeding evidence irrespective of whether said persons were subpoenaed or invited. I
wherein he has been charged of a wrong doing, except in a case for perjury. believe it is not a condition sine quo non to the non-admissibility of said
It is only at such time when the necessity of invoking the mantle of the evidence that at the time they testified or gave evidence before the Agrava
privilege or the immunity afforded to him by law would arise. Board that they had invoked their privilege against self-incrimination.

It cannot also be rightfully concluded that private respondents had The Agrava Board was created as an independent ad hoc fact finding board
intentionally relinquished or abandoned the said right which they claimed to determine all the facts and circumstances surrounding the assassination of
before the Sandiganbayan. The fact that the issue of when and before what former Senator Benigno S. Aquino, Jr. on August 21, 1983. It was given
forum should such claim to the right against self-incrimination be necessarily plenary powers to allow for a free, unlimited and exhaustive investigation