G.R. No.
182484             June 17, 2008 collaborated the claim of the plaintiffs that after they acquired the land in question on May 27,
DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-MADRIAGA, LIBERTY M. ASUNCION, LADYLYN BAMOS
MADRIAGA, EVERLY TAPUZ MADRIAGA, EXCEL TAPUZ, IVAN TAPUZ AND MARIAN TIMBAS, petitioners,
vs.
HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding Judge of RTC Br. 5 Kalibo, SHERIFF
NELSON DELA CRUZ, in his capacity as Sheriff of the RTC, THE PHILIPPINE NATIONAL POLICE stationed
in Boracay Island, represented by the PNP STATION COMMANDER, THE HONORABLE COURT OF
APPEALS IN CEBU 18th DIVISION, SPOUSES GREGORIO SANSON & MA. LOURDES T.
SANSON, respondents.
RESOLUTION
BRION, J.:
Before us for the determination of sufficiency of form and substance (pursuant to Sections 1 and 4 of
Rule 65 of the Revised Rules of Court; Sections 1 and 5 of the Rule on the Writ of Amparo;1 and Sections 1
and 6 of the  Rule on the Writ of Habeas Data2) is the petition for certiorari and for the issuance of the
writs of amparo and habeas data filed by the above-named petitioners against the Honorable Judge Elmo
del Rosario [in his capacity as presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson de la Cruz [in his
capacity as Sheriff of the RTC], the Philippine National Police stationed in Boracay Island, represented by
the PNP Station Commander, the Honorable Court of Appeals in Cebu, 18th Division, and the spouses
Gregorio Sanson and Ma. Lourdes T. Sanson, respondents.
The petition and its annexes disclose the following material antecedents:
The private respondents spouses Gregorio Sanson and Ma. Lourdes T. Sanson (the "private
respondents"), filed with the Fifth Municipal Circuit Trial Court of Buruanga-Malay, Aklan (the "MCTC") a
complaint3 dated 24 April 2006 for forcible entry and damages with a prayer for the issuance of a writ of
preliminary mandatory injunction against the petitioners Daniel Masangkay Tapuz, Aurora Tapuz-
Madriaga, Liberty M. Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan Tapuz
and Marian Timbas (the "petitioners") and other John Does numbering about 120. The private
respondents alleged in their complaint that: (1) they are the registered owners under TCT No. 35813 of a
1.0093-hectare parcel of land located at Sitio Pinaungon, Balabag, Boracay, Malay, Aklan (the "disputed
land"); (2) they were the disputed land's prior possessors when the petitioners - armed with bolos and
carrying suspected firearms and together with unidentified persons numbering 120 - entered the
disputed land by force and intimidation, without the private respondents' permission and against the
objections of the private respondents' security men, and built thereon a nipa and bamboo structure.
In their Answer4 dated 14 May 2006, the petitioners denied the material allegations of the complaint.
They essentially claimed that: (1) they are the actual and prior possessors of the disputed land; (2) on the
contrary, the private respondents are the intruders; and (3) the private respondents' certificate of title to
the disputed property is spurious. They asked for the dismissal of the complaint and interposed a
counterclaim for damages.
The MCTC, after due proceedings, rendered on 2 January 2007 a decision5 in the private respondents'
favor. It found prior possession - the key issue in forcible entry cases - in the private respondents' favor,
thus:
"The key that could unravel the answer to this question lies in the Amended Commissioner's
Report and Sketch found on pages 245 to 248 of the records and the evidence the parties have
submitted. It is shown in the Amended Commissioner's Report and Sketch that the land in
question is enclosed by a concrete and cyclone wire perimeter fence in pink and green
highlighter as shown in the Sketch Plan (p. 248). Said perimeter fence was constructed by the
plaintiffs 14 years ago. The foregoing findings of the Commissioner in his report and sketch
1993 through a Deed of Sale (Annex 'A', Affidavit of Gregorio Sanson, p. 276, rec.), they caused
the construction of the perimeter fence sometime in 1993 (Affidavit of Gregorio Sanson, pp.
271-275, rec.).
From the foregoing established facts, it could be safely inferred that the plaintiffs were in actual
physical possession of the whole lot in question since 1993 when it was interrupted by the
defendants (sic) when on January 4, 2005 claiming to (sic) the Heirs of Antonio Tapuz entered a
portion of the land in question with view of inhabiting the same and building structures therein
prompting plaintiff Gregorio Sanson to confront them before BSPU, Police Chief Inspector Jack L.
Wanky and Barangay Captain Glenn Sacapaño. As a result of their confrontation, the parties
signed an Agreement (Annex 'D', Complaint p. 20) wherein they agreed to vacate the disputed
portion of the land in question and agreed not to build any structures thereon.
The foregoing is the prevailing situation of the parties after the incident of January 4, 2005 when
the plaintiff posted security guards, however, sometime on or about 6:30 A.M. of April 19, 2006,
the defendants some with bolos and one carrying a sack suspected to contain firearms with
other John Does numbering about 120 persons by force and intimidation forcibly entered the
premises along the road and built a nipa and bamboo structure (Annex 'E', Complaint, p. 11)
inside the lot in question which incident was promptly reported to the proper authorities as
shown by plaintiffs' Certification (Annex 'F', Complaint, p. 12) of the entry in the police blotter
and on same date April 19, 2006, the plaintiffs filed a complaint with the Office of the Lupong
Tagapamayapa of Barangay Balabag, Boracay Island, Malay, Aklan but no settlement was
reached as shown in their Certificate to File Action (Annex 'G', Complaint, p. 13); hence the
present action.
Defendants' (sic) contend in their answer that 'prior to January 4, 2005, they were already
occupants of the property, being indigenous settlers of the same, under claim of ownership by
open continuous, adverse possession to the exclusion of other (sic)'. (Paragraph 4, Answer, p.
25).
The contention is untenable. As adverted earlier, the land in question is enclosed by a perimeter
fence constructed by the plaintiffs sometime in 1993 as noted by the Commissioner in his
Report and reflected in his Sketch, thus, it is safe to conclude that the plaintiffs where (sic) in
actual physical possession of the land in question from 1993 up to April 19, 2006 when they
were ousted therefrom by the defendants by means of force. Applying by analogy the ruling of
the Honorable Supreme Court in the case of Molina, et al. vs. De Bacud, 19 SCRA 956, if the land
were in the possession of plaintiffs from 1993 to April 19, 2006, defendants' claims to an older
possession must be rejected as untenable because possession as a fact cannot be recognized at
the same time in two different personalities.
Defendants likewise contend that it was the plaintiffs who forcibly entered the land in question
on April 18, 2006 at about 3:00 o'clock in the afternoon as shown in their Certification (Annex
'D', Defendants' Position Paper, p. 135, rec.).
The contention is untenable for being inconsistent with their allegations made to the
commissioner who constituted (sic) the land in question that they built structures on the land in
question only on April 19, 2006 (Par. D.4, Commissioner's Amended Report, pp. 246 to 247),
after there (sic) entry thereto on even date.
Likewise, said contention is contradicted by the categorical statements of defendants'
witnesses, Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo
Pinaranda, in their Joint Affidavit (pp. 143- '144, rec.) [sic] categorically stated 'that on or about
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 1
 April 19, 2006, a group of armed men entered the property of our said neighbors and built
plastic roofed tents. These armed men threatened to drive our said neighbors away from their
homes but they refused to leave and resisted the intruding armed men'.
From the foregoing, it could be safely inferred that no incident of forcible entry happened on
April 18, 2006 but it was only on April 19, 2006 when the defendants overpowered by their
numbers the security guards posted by the plaintiffs prior to the controversy.
Likewise, defendants (sic) alleged burnt and other structures depicted in their pictures attached
as annexes to their position paper were not noted and reflected in the amended report and
sketch submitted by the Commissioner, hence, it could be safely inferred that these structures
are built and (sic) situated outside the premises of the land in question, accordingly, they are
irrelevant to the instant case and cannot be considered as evidence of their actual possession of
the land in question prior to April 19, 20066."
The petitioners appealed the MCTC decision to the Regional Trial Court ("RTC," Branch 6 of Kalibo, Aklan)
then presided over by Judge Niovady M. Marin ("Judge Marin").
On appeal, Judge Marin granted the private respondents' motion for the issuance of a writ of preliminary
mandatory injunction through an Order dated 26 February 2007, with the issuance conditioned on the
private respondents' posting of a bond. The writ7 - authorizing the immediate implementation of the
MCTC decision - was actually issued by respondent Judge Elmo F. del Rosario (the "respondent Judge") on
12 March 2007 after the private respondents had complied with the imposed condition. The petitioners
moved to reconsider the issuance of the writ; the private respondents, on the other hand, filed a motion
for demolition.
The respondent Judge subsequently denied the petitioners' Motion for Reconsideration and to Defer
Enforcement of Preliminary Mandatory Injunction in an Order dated 17 May 20078.
Meanwhile, the petitioners opposed the motion for demolition.9 The respondent Judge nevertheless
issued via a Special Order10 a writ of demolition to be implemented fifteen (15) days after the Sheriff's
written notice to the petitioners to voluntarily demolish their house/s to allow the private respondents to
effectively take actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the Court of Appeals, Cebu City, a Petition for
Review11 (under Rule 42 of the 1997 Rules of Civil Procedure) of the Permanent Mandatory Injunction
and Order of Demolition of the RTC of Kalibo, Br. 6 in Civil Case No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to Vacate and for Demolition on 19
March 2008.12
It was against this factual backdrop that the petitioners filed the present petition last 29 April 2008. The
petition contains and prays for three remedies, namely: a petition for certiorari under Rule 65 of the
Revised Rules of Court; the issuance of a writ of habeas data under the Rule on the Writ of Habeas Data;
and finally, the issuance of the writ of amparo under the Rule on the Writ of Amparo.
To support the petition and the remedies prayed for, the petitioners present factual positions
diametrically opposed to the MCTC's findings and legal reasons. Most importantly, the petitioners
maintain their claims of prior possession of the disputed land and of intrusion into this land by the
private respondents. The material factual allegations of the petition - bases as well of the petition for the
issuance of the writ of amparo - read:
"29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge shot guns intruded into
the property of the defendants [the land in dispute]. They were not in uniform. They fired their
shotguns at the defendants. Later the following day at 2:00 a.m. two houses of the defendants
were burned to ashes.
30. These armed men [without uniforms] removed the barbed wire fence put up by defendants
to protect their property from intruders. Two of the armed men trained their shotguns at the
defendants who resisted their intrusion. One of them who was identified as SAMUEL LONGNO y
GEGANSO, 19 years old, single, and a resident of Binun-an, Batad, Iloilo, fired twice.
31. The armed men torched two houses of the defendants reducing them to ashes. [...]
32. These acts of TERRORISM and (heinous crime) of ARSON were reported by one of the
HEIRS OF ANTONIO TAPUZ [...]. The terrorists trained their shotguns and fired at minors
namely IVAN GAJISAN and MICHAEL MAGBANUA, who resisted their intrusion. Their act is a
blatant violation of the law penalizing Acts of Violence against women and children, which is
aggravated by the use of high-powered weapons.
[…]
34. That the threats to the life and security of the poor indigent and unlettered petitioners
continue because the private respondents Sansons have under their employ armed men and
they are influential with the police authorities owing to their financial and political clout.
35. The actual prior occupancy, as well as the ownership of the lot in dispute by defendants and
the atrocities of the terrorists [introduced into the property in dispute by the plaintiffs] are
attested by witnesses who are persons not related to the defendants are therefore disinterested
witnesses in the case namely: Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez
and Edgardo Penarada. Likewise, the affidavit of Nemia T. Carmen is submitted to prove that the
plaintiffs resorted to atrocious acts through hired men in their bid to unjustly evict the
defendants.13"
The petitioners posit as well that the MCTC has no jurisdiction over the complaint for forcible entry that
the private respondents filed below. Citing Section 33 of The Judiciary Reorganization Act of 1980, as
amended by Republic Act No. 7691,14 they maintain that the forcible entry case in fact involves issues of
title to or possession of real property or an interest therein, with the assessed value of the property
involved exceeding P20,000.00; thus, the case should be originally cognizable by the RTC. Accordingly,
the petitioners reason out that the RTC - to where the MCTC decision was appealed - equally has no
jurisdiction to rule on the case on appeal and could not have validly issued the assailed orders.
OUR RULING
We find the petitions for certiorari and issuance of a writ of habeas data fatally defective, both in
substance and in form. The petition for the issuance of the writ of amparo, on the other hand, is fatally
defective with respect to content and substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led to the petition, that the petition for
certiorari to nullify the assailed RTC orders has been filed out of time. It is not lost on us that the
petitioners have a pending petition with the Court of Appeals (the "CA petition") for the review of the
same RTC orders now assailed in the present petition, although the petitioners never disclosed in the
body of the present petition the exact status of their pending CA petition. The CA petition, however, was
filed with the Court of Appeals on 2 August 2007, which indicates to us that the assailed orders (or at the
very least, the latest of the interrelated assailed orders) were received on 1 August 2007  at the latest.
The present petition, on the other hand, was filed on April 29, 2008 or more than eight months from the
time the CA petition was filed. Thus, the present petition is separated in point of time from the assumed
receipt of the assailed RTC orders by at least eight (8) months, i.e., beyond the reglementary period of
sixty (60) days15 from receipt of the assailed order or orders or from notice of the denial of a seasonably
filed motion for reconsideration.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 2
We note in this regard that the petitioners' counsel stated in his attached "Certificate of Compliance with
Circular #1-88 of the Supreme Court"16 ("Certificate of Compliance") that "in the meantime the RTC and
the Sheriff issued a NOTICE TO VACATE AND FOR DEMOLITION not served to counsel but to the
petitioners who sent photo copy of the same NOTICE to their counsel on April 18, 2008 by LBC." To guard
against any insidious argument that the present petition is timely filed because of this Notice to Vacate,
we feel it best to declare now that the counting of the 60-day reglementary period under Rule 65 cannot
start from the April 18, 2008 date cited by the petitioners' counsel. The Notice to Vacate and for
Demolition is not an order that exists independently from the RTC orders assailed in this petition and in
the previously filed CA petition. It is merely a notice, made in compliance with one of the assailed orders,
and is thus an administrative enforcement medium that has no life of its own separately from the
assailed order on which it is based. It cannot therefore be the appropriate subject of an independent
petition for certiorari under Rule 65 in the context of this case. The April 18, 2008 date cannot likewise be
the material date for Rule 65 purposes as the above-mentioned Notice to Vacate is not even directly
assailed in this petition, as the petition's Prayer patently shows.17
Based on the same material antecedents, we find too that the petitioners have been guilty of willful and
deliberate misrepresentation before this Court and, at the very least, of forum shopping.
By the petitioners' own admissions, they filed a petition with the Court of Appeals (docketed as CA - G.R.
SP No. 02859) for the review of the orders now also assailed in this petition, but brought the present
recourse to us, allegedly because "the CA did not act on the petition up to this date and for the petitioner
(sic) to seek relief in the CA would be a waste of time and would render the case moot and academic
since the CA refused to resolve pending urgent motions and the Sheriff is determined to enforce a writ of
demolition despite the defect of LACK OF JURISDICTION."18
Interestingly, the petitioners' counsel - while making this claim in the body of the petition - at the same
time represented in his Certificate of Compliance19 that:
"x x x
(e) the petitioners went up to the Court of Appeals to question the WRIT OF PRELIMINARY
INJUNCTION copy of the petition is attached (sic);
(f) the CA initially issued a resolution denying the PETITION because it held that the ORDER TO
VACATE AND FOR DEMOLITION OF THE HOMES OF PETITIONERS is not capable of being the
subject of a PETITION FOR RELIEF, copy of the resolution of the CA is attached hereto;
(underscoring supplied)
(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up to this date the same
had not been resolved copy of the MR is attached (sic).
x x x"
The difference between the above representations on what transpired at the appellate court level is
replete with significance regarding the petitioners' intentions. We discern -- from the petitioners' act of
misrepresenting in the body of their petition that "the CA did not act on the petition up to this date"
while stating the real Court of Appeals action in the Certification of Compliance -- the intent to hide the
real state of the remedies the petitioners sought below in order to mislead us into action on the RTC
orders without frontally considering the action that the Court of Appeals had already undertaken.
At the very least, the petitioners are obviously seeking to obtain from us, via the present petition, the
same relief that it could not wait for from the Court of Appeals in CA-G.R. SP No. 02859. The petitioners'
act of seeking against the same parties the nullification of the same RTC orders before the appellate
court and before us at the same time, although made through different mediums that are both
improperly used, constitutes willful and deliberate forum shopping that can sufficiently serve as basis for
the summary dismissal of the petition under the combined application of the fourth and penultimate
paragraphs of Section 3, Rule 46; Section 5, Rule 7; Section 1, Rule 65; and Rule 56, all of the Revised
Rules of Court. That a wrong remedy may have been used with the Court of Appeals and possibly with us
will not save the petitioner from a forum-shopping violation where there is identity of parties, involving
the same assailed interlocutory orders, with the recourses existing side by side at the same time.
To restate the prevailing rules, "forum shopping is the institution of two or more actions or proceedings
involving the same parties for the same cause of action, either simultaneously or successively, on the
supposition that one or the other court would make a favorable disposition. Forum shopping may be
resorted to by any party against whom an adverse judgment or order has been issued in one forum, in an
attempt to seek a favorable opinion in another, other than by appeal or a special civil action for
certiorari. Forum shopping trifles with the courts, abuses their processes, degrades the administration of
justice and congest court dockets. Willful and deliberate violation of the rule against it is a ground for
summary dismissal of the case; it may also constitute direct contempt."20
Additionally, the required verification and certification of non-forum shopping is defective as one (1) of
the seven (7) petitioners - Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7; Section 3,
Rule 46; Section 1, Rule 65; all in relation with Rule 56 of the Revised Rules of Court. Of those who
signed, only five (5) exhibited their postal identification cards with the Notary Public.
In any event, we find the present petition for certiorari, on its face and on the basis of the supporting
attachments, to be devoid of merit. The MCTC correctly assumed jurisdiction over the private
respondents' complaint, which specifically alleged a cause for forcible entry and not - as petitioners may
have misread or misappreciated - a case involving title to or possession of realty or an interest therein.
Under Section 33, par. 2 of The Judiciary Reorganization Act, as amended by Republic Act (R.A.) No. 7691,
exclusive jurisdiction over forcible entry and unlawful detainer cases lies with the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. These first-level courts have had
jurisdiction over these cases - called accion interdictal - even before the R.A. 7691 amendment, based on
the issue of pure physical possession (as opposed to the right of possession). This jurisdiction is
regardless of the assessed value of the property involved; the law established no distinctions based on
the assessed value of the property forced into or unlawfully detained. Separately from accion
interdictal are accion publiciana for the recovery of the right of possession as a plenary action,
and accion reivindicacion for the recovery of ownership.21 Apparently, these latter actions are the ones
the petitioners refer to when they cite Section 33, par. 3, in relation with Section 19, par. 2 of The
Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, in which jurisdiction may
either be with the first-level courts or the regional trial courts, depending on the assessed value of the
realty subject of the litigation. As the complaint at the MCTC was patently for forcible entry, that court
committed no jurisdictional error correctible by certiorari under the present petition.
In sum, the petition for certiorari should be dismissed for the cited formal deficiencies, for violation of
the non-forum shopping rule, for having been filed out of time, and for substantive deficiencies.
The Writ of Amparo
To start off with the basics, the writ of amparo was originally conceived as a response to the
extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary concerns. It is intended to address
violations of or threats to the rights to life, liberty or security, as an extraordinary and independent
remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these
Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it
a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of
Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 3
issuance demands - requires that every petition for the issuance of the Pwrit must be supported by
justifying allegations of fact, to wit:
"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the respondent may be described by an
assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened with
violation by an unlawful act or omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct of
the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person responsible for the threat, act or omission;
and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs."22
The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate
facts determinable from the supporting affidavits that detail the circumstances of how and to what
extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is
being committed.
The issuance of the writ of amparo in the present case is anchored on the factual allegations heretofore
quoted,23 that are essentially repeated in paragraph 54 of the petition. These allegations are supported
by the following documents:
"(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida Umambong, Ariel Gac,
Darwin Alvarez and Edgardo Pinaranda, supporting the factual positions of the petitioners, id.,
petitioners' prior possession, private respondents' intrusion and the illegal acts committed by
the private respondents and their security guards on 19 April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal acts (firing of guns, etc.)
committed by a security guard against minors - descendants of Antonio Tapuz;
(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially corroborating Nemia's
affidavit;
(d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod regarding the
incident of petitioners' intrusion into the disputed land;
(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis, narrating the
altercation between the Tapuz family and the security guards of the private respondents,
including the gun-poking and shooting incident involving one of the security guards;
(f) Certification issued by Police Officer Christopher R. Mendoza, narrating that a house owned
by Josiel Tapuz, Jr., rented by a certain Jorge Buenavente, was accidentally burned by a fire."
On the whole, what is clear from these statements - both sworn and unsworn - is the overriding
involvement of property issues as the petition traces its roots to questions of physical possession of the
property disputed by the private parties. If at all, issues relating to the right to life or to liberty can hardly
be discerned except to the extent that the occurrence of past violence has been alleged. The right to
security, on the other hand, is alleged only to the extent of the threats and harassments implied from the
presence of "armed men bare to the waist" and the alleged pointing and firing of weapons. Notably,
none of the supporting affidavits compellingly show that the threat to the rights to life, liberty and
security of the petitioners is imminent or is continuing.
A closer look at the statements shows that at least two of them - the statements of Nemia Carreon y
Tapuz and Melanie Tapuz are practically identical and unsworn. The Certification by Police Officer Jackson
Jauod, on the other hand, simply narrates what had been reported by one Danny Tapuz y Masangkay,
and even mentions that the burning of two residential houses was "accidental."
As against these allegations are the cited MCTC factual findings in its decision in the forcible entry case
which rejected all the petitioners' factual claims. These findings are significantly complete and detailed,
as they were made under a full-blown judicial process, i.e., after examination and evaluation of the
contending parties' positions, evidence and arguments and based on the report of a court-appointed
commissioner.
We preliminarily examine these conflicting factual positions under the backdrop of a dispute (with
incidents giving rise to allegations of violence or threat thereof) that was brought to and ruled upon
by  the MCTC; subsequently brought to the RTC  on an appeal that is still pending; still much later
brought to the appellate court  without conclusive results; and then brought to us on interlocutory
incidents involving a plea for the issuance of the writ of amparo that, if decided as the petitioners
advocate, may render the pending RTC appeal moot.
Under these legal and factual situations, we are far from satisfied with the prima facie existence of the
ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose
a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be
purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress
and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of
ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo.
Nor do we believe it appropriate at this time to disturb the MCTC findings, as our action may carry the
unintended effect, not only of reversing the MCTC ruling independently of the appeal to the RTC that is
now in place, but also of nullifying the ongoing appeal process. Such effect, though unintended, will
obviously wreak havoc on the orderly administration of justice, an overriding goal that the Rule on the
Writ of Amparo does not intend to weaken or negate.
Separately from these considerations, we cannot fail but consider too at this point the indicators, clear
and patent to us, that the petitioners' present recourse via the remedy of the writ of amparo is a mere
subterfuge to negate the assailed orders that the petitioners sought and failed to nullify before the
appellate court because of the use of an improper remedial measure. We discern this from the
petitioners' misrepresentations pointed out above; from their obvious act of forum shopping; and from
the recourse itself to the extraordinary remedies of the writs of certiorari and amparo based on grounds
that are far from forthright and sufficiently compelling. To be sure, when recourses in the ordinary
course of law fail because of deficient legal representation or the use of improper remedial measures,
neither the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve
as a curative substitute. The writ of amparo, particularly, should not issue when applied for as a
substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes
- the situation obtaining in the present case.
While we say all these, we note too that the Rule on the Writ of Amparo provides for rules on the
institution of separate actions,24 for the effect of earlier-filed criminal actions,25 and for the consolidation
of petitions for the issuance of a writ of amparo with a subsequently filed criminal and civil
action.26 These rules were adopted to promote an orderly procedure for dealing with petitions for the
issuance of the writ of amparo when the parties resort to other parallel recourses.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 4
Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and
the reported acts of violence and harassment, we see no point in separately and directly intervening
through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or
security - the personal concern that the writ is intended to protect - is immediately in danger or
threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application
for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari,
applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires the following material allegations of ultimate
facts in a petition for the issuance of a writ of habeas data:
"(a) The personal circumstances of the petitioner and the respondent;
(b)  The manner the right to privacy is violated or threatened and how it affects the right to
life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or information;
(d)  The location of the files, registers or databases, the government office, and the person in
charge, in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression or
destruction of the database or information or files kept by the respondent.
In case of threats, the relief may include a prayer for an order enjoining the act complained of;
and
(f) Such other relevant reliefs as are just and equitable."
Support for the habeas data aspect of the present petition only alleges that:
"1. [ … ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the PNP may
release the report on the burning of the homes of the petitioners and the acts of violence
employed against them by the private respondents, furnishing the Court and the petitioners
with copy of the same;
[…]
66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine National Police
[PNP] to produce the police report pertaining to the burning of the houses of the petitioners in
the land in dispute and likewise the investigation report if an investigation was conducted by the
PNP."
These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum, thus
rendering the petition fatally deficient. Specifically, we see no concrete allegations of unjustified or
unlawful violation of the right to privacy related to the right to life, liberty or security. The petition
likewise has not alleged, much less demonstrated, any need for information under the control of police
authorities other than those it has already set forth as integral annexes. The necessity or justification for
the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has
not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more than
the "fishing expedition" that this Court - in the course of drafting the Rule on habeas data - had in mind in
defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the
petition for the issuance of the writ of habeas data is fully in order.
WHEREFORE, premises considered, we hereby DISMISS the present petition OUTRIGHT for deficiencies
of form and substance patent from its body and attachments.
SO ORDERED.

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 5

G.R. No. 193652               August 5, 2014
Infant JULIAN YUSA Y CARAM, represented by his mother, MA. CHRISTINA YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. CABRERA, and CELIA C.
YANGCO, Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, and Section 191 of the Rule on the Writ of Amparo2 seeking to set aside the August 17,
20103 and September 6, 20104 Orders of the Regional Trial Court (RTC), Branch 106 of Quezon City, in Sp.
Proc. Case No. Q-10-67604. The RTC had dismissed petitioner’s petition for the issuance ofa writ of
amparo which petitioner filed in order for her to regain parental authority and custody of Julian Yusay
Caram (Baby Julian), her biological child, from the respondent officers of the Department of Social
Welfare and Development (DSWD). The factual antecedents as gleaned from the records follow:
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous relationship with Marcelino Gicano
Constantino III (Marcelino) and eventually became pregnant with the latter’s child without the benefit of
marriage. After getting pregnant, Christina mislead Marcelino into believing that she had an abortion
when in fact she proceeded to complete the term of her pregnancy. During this time, she intended to
have the child adopted through Sun and Moon Home for Children (Sun and Moon) in Parañaque City to
avoid placing her family ina potentially embarrassing situation for having a second illegitimate son.5
On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez Memorial MedicalCenter,
Marikina City.6 Sun and Moon shouldered all the hospital and medical expenses. On August 13, 2009,
Christina voluntarily surrendered Baby Julian by way of a Deed of Voluntary Commitment7 to the DSWD.
On November 26, 2009, Marcelino suffered a heart attack and died8 without knowing about the birth of
his son. Thereafter, during the wake, Christina disclosed to Marcelino’s family that she and the deceased
had a son that she gave up for adoption due to financial distress and initial embarrassment. Marcelino’s
family was taken aback by the revelation and sympathized with Christina. After the emotional revelation,
they vowed to help her recover and raise the baby.9 On November 27, 2009, the DSWD, through
Secretary Esperanza I. Cabral issued a certificate10 declaring Baby Julian as "Legally Available for
Adoption." A local matching conference was held on January 27, 2010 and on February 5, 2010, Baby
Julian was "matched" with the spouses Vergel and Filomina Medina (Medina Spouses) of the Kaisahang
Bahay Foundation. Supervised trial custody then commenced.11
On May 5, 2010, Christina who had changed her mind about the adoption, wrote a letter to the
DSWDasking for the suspension of Baby Julian’s adoption proceedings. She alsosaid she wanted her
family back together.12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a Memorandum13 to DSWD
Assistant Secretary Vilma B. Cabrera informing her that the certificate declaring Baby Julian legally
available for adoption had attained finality on November 13, 2009, or three months after Christina signed
the Deed of Voluntary Commitment which terminated her parental authority and effectively made Baby
Julian a ward of the State. The said Memorandum was noted by respondent Atty. Sally D. Escutin,
Director IV of the Legal Service, DSWD.
On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother, sent a letter to Atty. Escutin informing
her that a DNA testing was scheduled on July 16, 2010 at the DNA Analysis Laboratory at the University
of the Philippines.14
On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to Noel Constantino stating that it would not
allow Baby Julian to undergo DNA testing. Assistant Secretary Cabrera informed Noel Constantino that
the procedures followed relative to the certification on the availability of the child for adoption and the
child’s subsequent placement to prospective adoptive parents were proper, and that the DSWD was no
longer in the position to stop the adoption process. Assistant Secretary Cabrera further stated that
should Christina wish to reacquire her parental authority over Baby Julian or halt the adoption process,
she may bring the matter to the regular courts as the reglementary period for her to regain her parental
rights had already lapsed under Section 7 of Republic Act (R.A.) No. 9523.16
On July 27, 2010, Christina filed a petition17 for the issuance of a writ of amparo before the RTC of
Quezon City seeking to obtain custody of Baby Julian from Atty. Segui, Atty. Escutin, Assistant Secretary
Cabrera and Acting Secretary Celia C. Yangco, all of the DSWD.
In her petition, Christina accused respondents of "blackmailing" her into surrendering custody of her
childto the DSWD utilizing what she claims to be an invalid certificate of availability for adoption which
respondents allegedly used as basis to misrepresent that all legal requisites for adoption of the minor
child had been complied with.
Christina argued that by making these misrepresentations, the respondents had acted beyond the scope
of their legal authority thereby causing the enforced disappearance of the said child and depriving her of
her custodial rights and parental authority over him.
On the basis of the said petition,the RTC, Branch 106 of Quezon City, through its Presiding Judge, the
Honorable Angelene Mary W. Quimpo-Sale, issued a Writ of Amparo18 on July 28, 2010 commanding the
four respondents to produce the body of Baby Julian at a hearing scheduled on August 4, 2010.
Respondents were alsorequired to file their verified written return to the writ pursuant to Section 919 of
the Amparo Rule, within five working days from the service of the writ.
The respondents complied with the writ and filed their Return20 on August 2, 2010 praying that the
petition be denied for being the improper remedy to avail of in a case relating toa biological parent’s
custodial rights over her child.
On August 4, 2010, respondents appeared before the RTC but respondents did not bring the child, stating
that threats of kidnapping were made on the child and his caregivers. To give respondents another
chance, the RTC reset the hearing to August 5, 2010.
At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) entered its appearance as
representative of the State and prayed that its lawyers be given time to file their memorandum or
position paper in this case. In turn, the RTC acknowledged the appearance of the OSG and allowed its
representatives to actively participate in the arguments raised during the said hearing. Relative to the
matter of the parties submitting additional pleadings, Judge Sale narrowed the issues to be discussed by
providing for the following guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations and counter-manifestations made by the
counsels, the court enjoined the parties to file their respective position papers on the following issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition isthe proper remedy based on the facts of the case and prayer in the
petition; and
3. Whether or not the prayer in the petition should be granted and custody of the child be given to his
biological mother.
The parties were given five (5) days from today to file their respective position papers based on these
three main issues. They may include other related issues they deem essential for the resolution of this
case. Set this case for further hearing, if necessary, on August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child subject of the case was brought before
the court and the petitioner was allowed to see him and take photographs of him.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 6
On August 17, 2010, the RTC dismissed the petition for issuance of a writ of amparo without prejudice to
the filing of the appropriate action in court. The RTC held that Christina availed of the wrong remedy to
regain custody of her child Baby Julian.22 The RTC further stated that Christina should have filed a civil
case for custody of her child as laid down in the Family Code and the Rule on Custody of Minors and Writ
of Habeas Corpus in Relation to Custody of Minors. If there is extreme urgency to secure custody of a
minor who has been illegallydetained by another, a petition for the issuance of a writ of habeas corpus
may be availed of, either as a principal or ancillary remedy, pursuant to the Rule on Custody of Minors
and Writ of Habeas Corpus inRelation to Custody of Minors.23
On August 20, 2010, Christina filed a motion for reconsideration24 arguing that since the RTC assumed
jurisdiction of the petition for the issuance of a writ of amparo, the latter is duty-bound to dispose the
case on the merits.25 The RTC, however, deniedChristina’s motion for reconsideration on September 6,
2010 maintaining that the latter availed of the wrong remedy and that the Supreme Court intended the
writ of amparo to address the problem of extrajudicial killings and enforced disappearances.26
On September 28, 2010, Christina directly elevated the case before this Court, via a petition for review on
certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, in relation to Section 19 of the
Rule on the Writ of Amparo. In her petition, Christina prayed that the Court (1) set aside the August 17,
2010 and September 6, 2010 Orders of the RTC, (2) declare R.A. No. 9523 unconstitutional for being
contrary to A.M. No. 02-6-02-SC,27 which was promulgated by the Supreme Court, and for violating the
doctrine of separation of powers, (3) declare the "enforced separation" between her and Baby Julian as
violative of her rights to life, liberty and security, and (4) grant her the privilege of availing the benefits of
a writ of amparo so she could be reunited with her son.28
The only relevant issue presented before the Court worthy of attention is whether a petition for a writ of
amparo is the proper recourse for obtaining parental authority and custody of a minor child. This Court
will not belabor to discuss Christina’s argumentsrelating to the supposedunconstitutionality or R.A. No.
9523 as Congress has the plenary power to repeal, alter and modify existing laws29 and A.M. No. 02-6-02-
SC functions only as a means to enforce the provisions of all adoption and adoption-related statutes
before the courts.
Now, in her petition, Christina argues that the life, liberty and security of Baby Julian is being violated or
threatened by the respondent DSWD officers’ enforcement of an illegal Deed of Voluntary Commitment
between her and Sun and Moon. She claims thatshe had been "blackmailed" through the said Deed by
the DSWD officers and Sun and Moon’s representatives into surrendering her child thereby causing the
"forced separation" of the said infant from his mother. Furthermore, she also reiterates that the
respondent DSWD officers acted beyond the scope of their authority when they deprived her of Baby
Julian’s custody.30
The Court rejects petitioner’s contentions and denies the petition.
Section 1 of the Rule on the Writ of Amparo provides as follows:
SECTION 1. Petition. – The petition for a writ of amparois a remedy available to any person whose right
to life, liberty and security is violated or threatened with violation by an unlawful actor omission of a
public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
In the landmark case of Secretary of National Defense, et al. v. Manalo, et al.,31 this Court held:
[T]he AmparoRule was intended to address the intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined to these two instances or to threats
thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal
safeguards or judicial proceedings." On the other hand, "enforced disappearances" are "attended by the
following characteristics: an arrest, detention or abduction of a person by a government official or
organized groupsor private individuals acting with the direct or indirect acquiescence of the government;
the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons outside the protection of law.
This pronouncement on the coverage of the writ was further cemented in the latter case of Lozada, Jr. v.
Macapagal-Arroyo32 where this Court explicitly declared that as it stands, the writ of amparo is confined
only to cases of extrajudicial killings and enforced disappearances, or to threats thereof. As to what
constitutes "enforced disappearance," the Court in Navia v. Pardico33 enumerated the
elementsconstituting "enforced disappearances" as the term is statutorily defined in Section 3(g) of R.A.
No. 985134 to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence of, the State ora
political organization;
(c) that it be followed by the State or political organization’s refusal to acknowledge or give
information on the fate or whereabouts of the person subject of the amparopetition; and,
(d) that the intention for such refusal isto remove subject person from the protection of the law
for a prolonged period of time.1âwphi1
In this case, Christina alleged that the respondent DSWD officers caused her "enforced separation" from
Baby Julian and that their action amounted to an "enforced disappearance" within the context of the
Amparo rule. Contrary to her position, however, the respondent DSWD officers never concealed Baby
Julian's whereabouts. In fact, Christina obtained a copy of the DSWD's May 28, 2010
Memorandum35 explicitly stating that Baby Julian was in the custody of the Medina Spouses when she
filed her petition before the RTC. Besides, she even admitted in her petition for review on certiorari that
the respondent DSWD officers presented Baby Julian before the RTC during the hearing held in the
afternoon of August 5, 2010.36 There is therefore, no "enforced disappearance" as used in the context of
the Amparo rule as the third and fourth elements are missing.
Christina's directly accusing the respondents of forcibly separating her from her child and placing the
latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the
child for adoption, clearly indicates that she is not searching for a lost child but asserting her parental
authority over the child and contesting custody over him.37 Since it is extant from the pleadings filed that
what is involved is the issue of child custody and the exercise of parental rights over a child, who, for all
intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be
properly applied.
To reiterate, the privilege of the writ of amparo is a remedy available to victims of extra-judicial killings
and enforced disappearances or threats of a similar nature, regardless of whether the perpetrator of the
unlawful act or omission is a public official or employee or a private individual. It is envisioned basically to
protect and guarantee the right to life, liberty and security of persons, free from fears and threats that
vitiate the quality of life.
WHEREFORE, the petition is DENIED. The August 17, 2010 and September 6, 2010 Orders of the Regional
Trial Court, Branch 106, Quezon City in Sp. Proc. Case No. Q-10-67604 are AFFIRMED without prejudice
to petitioner's right to avail of proper legal remedies afforded to her by law and related rules.
No costs.
SO ORDERED.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 7
G.R. No. 202666               September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in society is an equally powerful
desire. Thus each individual is continually engaged in a personal adjustment process in which he balances
the desire for privacy with the desire for disclosure and communication of himself to others, in light of
the environmental conditions and social norms set by the society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to Section
19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ of Habeas Data." Petitioners
herein assail the July 27, 2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP.
Proc. No. 19251-CEB, which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period
material, graduating high school students at St. Theresa's College (STC), Cebu City. Sometime in January
2012, while changing into their swimsuits for a beach party they were about to attend, Julia and Julienne,
along with several others, took digital pictures of themselves clad only in their undergarments. These
pictures were then uploaded by Angela Lindsay Tan (Angela) on her Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high school
department, learned from her students that some seniors at STC posted pictures online, depicting
themselves from the waist up, dressed only in brassieres. Escudero then asked her students if they knew
who the girls in the photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes Taboada
(Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts
and showed her photos of the identified students, which include: (a) Julia and Julienne drinking hard
liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing
articles of clothing that show virtually the entirety of their black brassieres. What is more, Escudero’s
students claimed that there were times when access to or the availability of the identified students’
photos was not confined to the girls’ Facebook friends,4 but were, in fact, viewable by any Facebook
user.5
Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page, showed
the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter,
following an investigation, STC found the identified students to have deported themselves in a manner
proscribed by the school’s Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive
messages, language or symbols; and 6. Posing and uploading pictures on the Internet that entail
ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported, as
required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school principal and
ICM6 Directress. They claimed that during the meeting, they were castigated and verbally abused by the
STC officials present in the conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda
Jumiller, and Tigol. What is more, Sr. Purisima informed their parents the following day that, as part of
their penalty, they are barred from joining the commencement exercises scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan), filed a
Petition for Injunction and Damages before the RTC of Cebu City against STC, et al., docketed as Civil Case
No. CEB-38594.7 In it, Tan prayed that defendants therein be enjoined from implementing the sanction
that precluded Angela from joining the commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as an
intervenor. On March 28, 2012, defendants inCivil Case No. CEB-38594 filed their memorandum,
containing printed copies of the photographs in issue as annexes. That same day, the RTC issued a
temporary restraining order (TRO) allowing the students to attend the graduation ceremony, to which
STC filed a motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from participating in
the graduation rites, arguing that, on the date of the commencement exercises, its adverted motion for
reconsideration on the issuance ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data, docketed
as SP. Proc. No. 19251-CEB8 on the basis of the following considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before
they changed into their swimsuits on the occasion of a birthday beach party;
2. The privacy setting of their children’s Facebook accounts was set at "Friends Only." They,
thus, have a reasonable expectation of privacy which must be respected.
3. Respondents, being involved in the field of education, knew or ought to have known of laws
that safeguard the right to privacy. Corollarily, respondents knew or ought to have known that
the girls, whose privacy has been invaded, are the victims in this case, and not the offenders.
Worse, after viewing the photos, the minors were called "immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without
their consent. Escudero, however, violated their rights by saving digital copies of the photos and
by subsequently showing them to STC’s officials. Thus, the Facebook accounts of petitioners’
children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of information, data, and
digital images happened at STC’s Computer Laboratory; and
6. All the data and digital images that were extracted were boldly broadcasted by respondents
through their memorandum submitted to the RTC in connection with Civil Case No. CEB-38594.
To petitioners, the interplay of the foregoing constitutes an invasion of their children’s privacy
and, thus, prayed that: (a) a writ of habeas databe issued; (b) respondents be ordered to
surrender and deposit with the court all soft and printed copies of the subjectdata before or at
the preliminary hearing; and (c) after trial, judgment be rendered declaring all information, data,
and digital images accessed, saved or stored, reproduced, spread and used, to have been
illegally obtained inviolation of the children’s right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012,
issued the writ of habeas data. Through the same Order, herein respondents were directed to file their
verified written return, together with the supporting affidavits, within five (5) working days from service
of the writ.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 8
In time, respondents complied with the RTC’s directive and filed their verified written return, laying down
the following grounds for the denial of the petition, viz: (a) petitioners are not the proper parties to file
the petition; (b) petitioners are engaging in forum shopping; (c) the instant case is not one where a writ
of habeas data may issue;and (d) there can be no violation of their right to privacy as there is no
reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive
portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the
minors’ right to privacy, one of the preconditions for the issuance of the writ of habeas data. Moreover,
the court a quoheld that the photos, having been uploaded on Facebook without restrictions as to who
may view them, lost their privacy in some way. Besides, the RTC noted, STC gathered the photographs
through legal means and for a legal purpose, that is, the implementation of the school’s policies and rules
on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the
Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of habeas datashould be issued
given the factual milieu. Crucial in resolving the controversy, however, is the pivotal point of whether or
not there was indeed an actual or threatened violation of the right to privacy in the life, liberty, or
security of the minors involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official or employee, or of a
private individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party.11 It is an independent
and summary remedy designed to protect the image, privacy, honor, information, and freedom of
information of an individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding oneself,
particularly in instances in which such information is being collected through unlawful means in order to
achieve unlawful ends.12
In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational
privacy, among others. A comparative law scholar has, in fact, defined habeas dataas "a procedure
designed to safeguard individual freedom from abuse in the information age."13 The writ, however, will
not issue on the basis merely of an alleged unauthorized access to information about a person.Availment
of the writ requires the existence of a nexus between the right to privacy on the one hand, and the right
to life, liberty or security on the other.14 Thus, the existence of a person’s right to informational privacy
and a showing, at least by substantial evidence, of an actual or threatened violation of the right to
privacy in life, liberty or security of the victim are indispensable before the privilege of the writ may be
extended.15
Without an actionable entitlement in the first place to the right to informational privacy, a habeas
datapetition will not prosper. Viewed from the perspective of the case at bar,this requisite begs this
question: given the nature of an online social network (OSN)––(1) that it facilitates and promotes real-
time interaction among millions, if not billions, of users, sans the spatial barriers,16 bridging the gap
created by physical space; and (2) that any information uploaded in OSNs leavesan indelible trace in the
provider’s databases, which are outside the control of the end-users––is there a right to informational
privacy in OSN activities of its users? Before addressing this point, We must first resolve the procedural
issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the purpose of
complementing the Writ of Amparoin cases of extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However, in
cases of extralegal killings and enforced disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children
and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil
degreeof consanguinity or affinity, in default of those mentioned in the preceding paragraph.
(emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal
killings or enforced disappearances, the above underscored portion of Section 2, reflecting a variance of
habeas data situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the information
age."17 As such, it is erroneous to limit its applicability to extralegal killings and enforced disappearances
only. In fact, the annotations to the Rule preparedby the Committee on the Revision of the Rules of
Court, after explaining that the Writ of Habeas Data complements the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right to
privacy, more specifically the right to informational privacy. The remedies against the violation of such
right can include the updating, rectification, suppression or destruction of the database or information or
files in possession or in control of respondents.18 (emphasis Ours) Clearly then, the privilege of the Writ
of Habeas Datamay also be availed of in cases outside of extralegal killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data or information
Respondents’ contention that the habeas data writ may not issue against STC, it not being an entity
engaged in the gathering, collecting or storing of data or information regarding the person, family, home
and correspondence of the aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only
against abuses of a person or entity engaged in the businessof gathering, storing, and collecting of data.
As provided under Section 1 of the Rule:
Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of the aggrieved party.
(emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data
is a protection against unlawful acts or omissions of public officials and of private individuals or entities
engaged in gathering, collecting, or storing data about the aggrieved party and his or her
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 9
correspondences, or about his or her family. Such individual or entity need not be in the business of
collecting or storing data.
To "engage" in something is different from undertaking a business endeavour. To "engage" means "to do
or take part in something."19 It does not necessarily mean that the activity must be done in pursuit of a
business. What matters is that the person or entity must be gathering, collecting or storing said data or
information about the aggrieved party or his or her family. Whether such undertaking carries the
element of regularity, as when one pursues a business, and is in the nature of a personal endeavour, for
any other reason or even for no reason at all, is immaterial and such will not prevent the writ from
getting to said person or entity.
To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a very
small group, i.e., private persons and entities whose business is data gathering and storage, and in the
process decreasing the effectiveness of the writ asan instrument designed to protect a right which is
easily violated in view of rapid advancements in the information and communications technology––a
right which a great majority of the users of technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological advancements having an
influential part therein. This evolution was briefly recounted in former Chief Justice Reynato S. Puno’s
speech, The Common Right to Privacy,20 where he explained the three strands of the right to privacy, viz:
(1) locational or situational privacy;21 (2) informational privacy; and (3) decisional privacy.22 Of the three,
what is relevant to the case at bar is the right to informational privacy––usually defined as the right of
individuals to control information about themselves.23
With the availability of numerous avenues for information gathering and data sharing nowadays, not to
mention each system’s inherent vulnerability to attacks and intrusions, there is more reason that every
individual’s right to control said flow of information should be protected and that each individual should
have at least a reasonable expectation of privacy in cyberspace. Several commentators regarding privacy
and social networking sites, however, all agree that given the millions of OSN users, "[i]n this [Social
Networking] environment, privacy is no longer grounded in reasonable expectations, but rather in some
theoretical protocol better known as wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would
allow a summary hearing of the unlawful use of data or information and to remedy possible violations of
the right to privacy.25 In the same vein, the South African High Court, in its Decision in the landmark case,
H v. W,26 promulgated on January30, 2013, recognized that "[t]he law has to take into account the
changing realities not only technologically but also socially or else it will lose credibility in the eyes of the
people. x x x It is imperative that the courts respond appropriately to changing times, acting cautiously
and with wisdom." Consistent with this, the Court, by developing what may be viewed as the Philippine
model of the writ of habeas data, in effect, recognized that, generally speaking, having an expectation of
informational privacy is not necessarily incompatible with engaging in cyberspace activities, including
those that occur in OSNs.
The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in mind that
informational privacy involves personal information. At the same time, the very purpose of OSNs is
socializing––sharing a myriad of information,27 some of which would have otherwise remained personal.
b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to
other members of the same or different social media platform through the sharing of statuses, photos,
videos, among others, depending on the services provided by the site. It is akin to having a room filled
with millions of personal bulletin boards or "walls," the contents of which are under the control of each
and every user. In his or her bulletin board, a user/owner can post anything––from text, to pictures, to
music and videos––access to which would depend on whether he or she allows one, some or all of the
other users to see his or her posts. Since gaining popularity, the OSN phenomenon has paved the way to
the creation of various social networking sites, includingthe one involved in the case at bar,
www.facebook.com (Facebook), which, according to its developers, people use "to stay connected with
friends and family, to discover what’s going on in the world, and to share and express what matters to
them."28
Facebook connections are established through the process of "friending" another user. By sending a
"friend request," the user invites another to connect their accounts so that they can view any and all
"Public" and "Friends Only" posts of the other.Once the request is accepted, the link is established and
both users are permitted to view the other user’s "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships with other users,
whereby the user gives his or her "Facebook friend" access to his or her profile and shares certain
information to the latter.29
To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with
different privacy tools designed to regulate the accessibility of a user’s profile31 as well as information
uploaded by the user. In H v. W,32 the South Gauteng High Court recognized this ability of the users to
"customize their privacy settings," but did so with this caveat: "Facebook states in its policies that,
although it makes every effort to protect a user’s information, these privacy settings are not foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos), posted
on his or her personal bulletin or "wall," except for the user’sprofile picture and ID, by selecting his or her
desired privacy setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the
Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or
limit the visibility of his or her specific profile content, statuses, and photos, among others, from another
user’s point of view. In other words, Facebook extends its users an avenue to make the availability of
their Facebook activities reflect their choice as to "when and to what extent to disclose facts about
[themselves] – and to put others in the position of receiving such confidences."34 Ideally, the selected
setting will be based on one’s desire to interact with others, coupled with the opposing need to withhold
certain information as well as to regulate the spreading of his or her personal information. Needless to
say, as the privacy setting becomes more limiting, fewer Facebook users can view that user’s particular
post.
STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is no reasonable expectation of
privacy in Facebook would, in context, be correct. However, such is not the case. It is through the
availability of said privacy tools that many OSN users are said to have a subjective expectation that only
those to whomthey grant access to their profile will view the information they post or upload thereto.35
This, however, does not mean thatany Facebook user automatically has a protected expectation of
privacy inall of his or her Facebook activities.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 10
Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said
user, in this case the children of petitioners,manifest the intention to keepcertain posts private, through
the employment of measures to prevent access thereto or to limit its visibility.36 And this intention can
materialize in cyberspace through the utilization of the OSN’s privacy tools. In other words, utilization of
these privacy tools is the manifestation,in cyber world, of the user’s invocation of his or her right to
informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her
post orprofile detail should not be denied the informational privacy right which necessarily accompanies
said choice.38 Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance,
a user uploads a photo or any personal information to his or her Facebook page and sets its privacy level
at "Only Me" or a custom list so that only the user or a chosen few can view it, said photo would still be
deemed public by the courts as if the user never chose to limit the photo’s visibility and accessibility.
Such position, if adopted, will not only strip these privacy tools of their function but it would also
disregard the very intention of the user to keep said photo or information within the confines of his or
her private space.
We must now determine the extent that the images in question were visible to other Facebook users and
whether the disclosure was confidential in nature. In other words, did the minors limit the disclosure of
the photos such that the images were kept within their zones of privacy? This determination is necessary
in resolving the issue of whether the minors carved out a zone of privacy when the photos were
uploaded to Facebook so that the images will be protected against unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy right being violated, insist that
Escudero intruded upon their children’s Facebook accounts, downloaded copies ofthe pictures and
showed said photos to Tigol. To them, this was a breach of the minors’ privacy since their Facebook
accounts, allegedly, were under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their children’s disclosure was only limited since their profiles
were not open to public viewing. Therefore, according to them, people who are not their Facebook
friends, including respondents, are barred from accessing said post without their knowledge and
consent. Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos which were only
viewable by the five of them,40 although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of girls
cladin brassieres. This student [sic] of mine informed me that these are senior high school [students] of
STC, who are their friends in [F]acebook. x x x They then said [that] there are still many other photos
posted on the Facebook accounts of these girls. At the computer lab, these students then logged into
their Facebook account [sic], and accessed from there the various photographs x x x. They even told me
that there had been times when these photos were ‘public’ i.e., not confined to their friends in
Facebook."
In this regard, We cannot give muchweight to the minors’ testimonies for one key reason: failure to
question the students’ act of showing the photos to Tigol disproves their allegation that the photos were
viewable only by the five of them. Without any evidence to corroborate their statement that the images
were visible only to the five of them, and without their challenging Escudero’s claim that the other
students were able to view the photos, their statements are, at best, self-serving, thus deserving scant
consideration.42
It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who
are the minors’ Facebook "friends," showed her the photos using their own Facebook accounts. This only
goes to show that no special means to be able to viewthe allegedly private posts were ever resorted to
by Escudero’s students,43 and that it is reasonable to assume, therefore, that the photos were, in reality,
viewable either by (1) their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it can be surmised that the
photographs in question were viewable to everyone on Facebook, absent any proof that petitioners’
children positively limited the disclosure of the photograph. If suchwere the case, they cannot invoke the
protection attached to the right to informational privacy. The ensuing pronouncement in US v. Gines-
Perez44 is most instructive:
[A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy
rights to such imagery, particularly under circumstances suchas here, where the Defendant did not
employ protective measures or devices that would have controlled access to the Web page or the
photograph itself.45
Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the less
privacy one can reasonably expect. Messages sent to the public at large inthe chat room or e-mail that is
forwarded from correspondent to correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the petitioners’ contention. In
this regard, the cyber community is agreed that the digital images under this setting still remain to be
outside the confines of the zones of privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by giving its users the tools to
interact and share in any conceivable way;"47
(2) A good number of Facebook users "befriend" other users who are total strangers;48
(3) The sheer number of "Friends" one user has, usually by the hundreds; and
(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who are not
Facebook friends with the former, despite its being visible only tohis or her own Facebook
friends.
It is well to emphasize at this point that setting a post’s or profile detail’s privacy to "Friends" is no
assurance that it can no longer be viewed by another user who is not Facebook friends with the source of
the content. The user’s own Facebook friend can share said content or tag his or her own Facebook
friend thereto, regardless of whether the user tagged by the latter is Facebook friends or not with the
former. Also, when the post is shared or when a person is tagged, the respective Facebook friends of the
person who shared the post or who was tagged can view the post, the privacy setting of which was set at
"Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C,
A’s Facebook friend, tags B in A’s post, which is set at "Friends," the initial audience of 100 (A’s own
Facebook friends) is dramatically increased to 300 (A’s 100 friends plus B’s 200 friends or the public,
depending upon B’s privacy setting). As a result, the audience who can view the post is effectively
expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook’s proclivity towards user
interaction and socialization rather than seclusion or privacy, as it encourages broadcasting of individual
user posts. In fact, it has been said that OSNs have facilitated their users’ self-tribute, thereby resulting
into the "democratization of fame."51 Thus, it is suggested, that a profile, or even a post, with visibility set
at "Friends Only" cannot easily, more so automatically, be said to be "very private," contrary to
petitioners’ argument.
As applied, even assuming that the photos in issue are visible only to the sanctioned students’ Facebook
friends, respondent STC can hardly be taken to task for the perceived privacy invasion since it was the
minors’ Facebook friends who showed the pictures to Tigol. Respondents were mere recipients of what
were posted. They did not resort to any unlawful means of gathering the information as it was voluntarily
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 11
given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with which is outside the ambit of their control. Furthermore, and more importantly, information, otherwise
the friends of the minors. Curiously enough, however, neither the minors nor their parents imputed any private, voluntarily surrendered by them can be opened, read, or copied by third parties who may or may
violation of privacy against the students who showed the images to Escudero. not be allowed access to such.
Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities
the photographs. In fact, what petitioners attributed to respondents as an act of offensive disclosure was and must not be negligent in protecting their rights. Equity serves the vigilant. Demanding relief from the
no more than the actuality that respondents appended said photographs in their memorandum courts, as here, requires that claimants themselves take utmost care in safeguarding a right which they
submitted to the trial court in connection with Civil Case No. CEB-38594.52 These are not tantamount to a allege to have been violated. These are indispensable. We cannot afford protection to persons if they
violation of the minor’s informational privacy rights, contrary to petitioners’ assertion. themselves did nothing to place the matter within the confines of their private zone. OSN users must be
In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor mindful enough to learn the use of privacy tools, to use them if they desire to keep the information
students scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the reputation private, and to keep track of changes in the available privacy settings, such as those of Facebook,
of the minors enrolled in a conservative institution. However, the records are bereft of any evidence, especially because Facebook is notorious for changing these settings and the site's layout often.
other than bare assertions that they utilized Facebook’s privacy settings to make the photos visible only In finding that respondent STC and its officials did not violate the minors' privacy rights, We find no
to them or to a select few. Without proof that they placed the photographs subject of this case within cogent reason to disturb the findings and case disposition of the court a quo.
the ambit of their protected zone of privacy, they cannot now insist that they have an expectation of In light of the foregoing, the Court need not belabor the other assigned errors.
privacy with respect to the photographs in question. WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of
Had it been proved that the access tothe pictures posted were limited to the original uploader, through the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.
the "Me Only" privacy setting, or that the user’s contact list has been screened to limit access to a select No pronouncement as to costs.
few, through the "Custom" setting, the result may have been different, for in such instances, the SO ORDERED.
intention to limit access to the particular post, instead of being broadcasted to the public at large or all
the user’s friends en masse, becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your children’s ears."53 This means that self-
regulation on the part of OSN users and internet consumers ingeneral is the best means of avoiding
privacy rights violations.54 As a cyberspace communitymember, one has to be proactive in protecting his
or her own privacy.55 It is in this regard that many OSN users, especially minors, fail.Responsible social
networking or observance of the "netiquettes"56 on the part of teenagers has been the concern of many
due to the widespreadnotion that teenagers can sometimes go too far since they generally lack the
people skills or general wisdom to conduct themselves sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its
curriculum to educate its students on proper online conduct may be mosttimely. Too, it is not only STC
but a number of schools and organizations have already deemed it important to include digital literacy
and good cyber citizenshipin their respective programs and curricula in view of the risks that the children
are exposed to every time they participate in online activities.58 Furthermore, considering the complexity
of the cyber world and its pervasiveness,as well as the dangers that these children are wittingly or
unwittingly exposed to in view of their unsupervised activities in cyberspace, the participation of the
parents in disciplining and educating their children about being a good digital citizen is encouraged by
these institutions and organizations. In fact, it is believed that "to limit such risks, there’s no substitute
for parental involvement and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its students to beresponsible in
their dealings and activities in cyberspace, particularly in OSNs, whenit enforced the disciplinary actions
specified in the Student Handbook, absenta showing that, in the process, it violated the students’ rights.
OSN users should be aware of the risks that they expose themselves to whenever they engage
incyberspace activities.1âwphi1 Accordingly, they should be cautious enough to control their privacy and
to exercise sound discretion regarding how much information about themselves they are willing to give
up. Internet consumers ought to be aware that, by entering or uploading any kind of data or information
online, they are automatically and inevitably making it permanently available online, the perpetuation of
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 12
G.R. No. 182498               December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL
CASTAÑEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R.
GOLTIAO, Regional Director of ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-
Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the decision dated March 7, 2008 of the Court of
Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA decision confirmed the enforced disappearance of
Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean
B. Tagitis (respondent). The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS that this is an
"enforced disappearance" within the meaning of the United Nations instruments, as used in the Amparo
Rules. The privileges of the writ of amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation and Detention
Group (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him;
(2) respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a) respondent
GEN. JOEL GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE
TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response, to aid him as their superior- are hereby DIRECTED to exert extraordinary diligence
and efforts, not only to protect the life, liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to submit a monthly
report of their actions to this Court, as a way of PERIODIC REVIEW to enable this Court to monitor the
action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO, Commanding
General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force
Comet, Zamboanga City, both being with the military, which is a separate and distinct organization from
the police and the CIDG, in terms of operations, chain of command and budget.
This Decision reflects the nature of the Writ of Amparo – a protective remedy against violations or
threats of violation against the rights to life, liberty and security.3 It embodies, as a remedy, the court’s
directive to police agencies to undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a
measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal
and civil cases against the responsible parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced disappearance and who
carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the
issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that
the life of the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that
call for the issuance of the writ, as well as the considerations and measures necessary to address these
situations, may not at all be the same as the standard measures and procedures in ordinary court actions
and proceedings. In this sense, the Rule on the Writ of Amparo4 (Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points
remain to evolve through time and jurisprudence and through the substantive laws that Congress may
promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary
Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu.
Together with Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early
morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY
Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to
Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around.5 The receptionist
related that Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key
with the desk.6 Kunnong looked for Tagitis and even sent a text message to the latter’s Manila-based
secretary who did not know of Tagitis’ whereabouts and activities either; she advised Kunnong to simply
wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies
and Tagitis’ fellow student counselor at the IDB, reported Tagitis’ disappearance to the Jolo Police
Station.8 On November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis’ disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ of Amparo
(petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.10 The petition was directed
against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief,
Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention
Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel
Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet
[collectively referred to as petitioners]. After reciting Tagitis’ personal circumstances and the facts
outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early
lunch but while out on the street, a couple of burly men believed to be police intelligence operatives,
forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of
his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was
surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not also
around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic] assisted him to open the
room of Engr. Tagitis, where they discovered that the personal belongings of Engr. Tagitis, including cell
phones, documents and other personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and
reported the matter to the local police agency;
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 13
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was
immediately given a ready answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group
and other groups known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police officers, Kunnong reported
the matter to the [respondent, wife of Engr. Tagitis] by phone and other responsible officers and
coordinators of the IDB Scholarship Programme in the Philippines, who alerted the office of the Governor
of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos
branch, Digos City, Davao del Sur who likewise sought help from some of their friends in the military who
could help them find/locate the whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results except the information
from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the
uniformed men;
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody
of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his
will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist
groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, as
suggested by her friends, seeking their help to find her husband, but [respondent’s] request and
pleadings failed to produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police that her
husband, subject of the petition, was not missing but was with another woman having good time
somewhere, which is a clear indication of the [petitioners’] refusal to help and provide police assistance
in locating her missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over subject Engr. Tagitis
to his family or even to provide truthful information to [the respondent] of the subject’s whereabouts,
and/or allow [the respondent] to visit her husband Engr. Morced Tagitis, caused so much sleepless nights
and serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the ARMM Police
Headquarters again in Cotobato City and also to the different Police Headquarters including [those] in
Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been
visited by the [respondent] in search for her husband, which entailed expenses for her trips to these
places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives
only to try complying [sic] to the different suggestions of these police officers, despite of which, her
efforts produced no positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by the
[respondent], informed her that they are not the proper persons that she should approach, but assured
her not to worry because her husband is [sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the [respondent’s] request for help
and failure and refusal of the [petitioners] to extend the needed help, support and assistance in locating
the whereabouts of Engr. Tagitis who had been declared missing since October 30, 2007 which is almost
two (2) months now, clearly indicates that the [petitioners] are actually in physical possession and
custody of [respondent’s] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under
the circumstances, [the respondent] has no other plain, speedy and adequate remedy to protect and get
the release of subject Engr. Morced Tagitis from the illegal clutches of the [petitioners], their intelligence
operatives and the like which are in total violation of the subject’s human and constitutional rights,
except the issuance of a WRIT OF AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for
hearing on January 7, 2008, and directed the petitioners to file their verified return within seventy-two
(72) hours from service of the writ.11
In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any
involvement in or knowledge of Tagitis’ alleged abduction. They argued that the allegations of the
petition were incomplete and did not constitute a cause of action against them; were baseless, or at best
speculative; and were merely based on hearsay evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did not have any
personal knowledge of, or any participation in, the alleged disappearance; that he had been designated
by President Gloria Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to address
concerns about extralegal killings and enforced disappearances; the Task Force, inter alia, coordinated
with the investigators and local police, held case conferences, rendered legal advice in connection to
these cases; and gave the following summary:13
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office ARMM submitted a report
on the alleged disappearance of one Engr. Morced Tagitis. According to the said report, the
victim checked-in at ASY Pension House on October 30, 2007 at about 6:00 in the morning and
then roamed around Jolo, Sulu with an unidentified companion. It was only after a few days
when the said victim did not return that the matter was reported to Jolo MPS. Afterwards,
elements of Sulu PPO conducted a thorough investigation to trace and locate the whereabouts
of the said missing person, but to no avail. The said PPO is still conducting investigation that will
lead to the immediate findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director, CIDG. The
said report stated among others that: subject person attended an Education Development
Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together
with a Prof. Matli. On October 30, 2007, at around 5:00 o’clock in the morning, Engr. Tagitis
reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY
Pension House. At about 6:15 o’clock in the morning of the same date, he instructed his student
to purchase a fast craft ticket bound for Zamboanga City and will depart from Jolo, Sulu on
October 31, 2007. That on or about 10:00 o’clock in the morning, Engr. Tagitis left the premises
of ASY Pension House as stated by the cashier of the said pension house. Later in the afternoon,
the student instructed to purchase the ticket arrived at the pension house and waited for Engr.
Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now conducting a
continuous case build up and information gathering to locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG to find
Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence
Operatives since October 30, 2007, but after diligent and thorough search, records show that no
such person is being detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible efforts, steps and actions
available under the circumstances and continuously search and investigate [sic] the instant case. This
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 14
immense mandate, however, necessitates the indispensable role of the citizenry, as the PNP cannot
stand alone without the cooperation of the victims and witnesses to identify the perpetrators to bring
them before the bar of justice and secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit, also attached
to the Return of the Writ, attesting that upon receipt of the Writ of Amparo, he caused the following:14
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable Special Fourth
Division of the Court of Appeals, I immediately directed the Investigation Division of this Group [CIDG] to
conduct urgent investigation on the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar on October
28, 2007 at Ateneo de Zamboanga at Zamboanga City together with Prof. Abdulnasser Matli. On October
30, 2007, at around six o’clock in the morning he arrived at Jolo, Sulu. He was assisted by his student
identified as Arsimin Kunnong of the Islamic Development Bank who was also one of the participants of
the said seminar. He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October
30, 2007 with [sic] unidentified companion. At around six o’clock in the morning of even date, Engr.
Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In the afternoon of the
same date, Kunnong arrived at the pension house carrying the ticket he purchased for Engr. Tagitis, but
the latter was nowhere to be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli
who reported the incident to the police. The CIDG is not involved in the disappearance of Engr. Morced
Tagitis to make out a case of an enforced disappearance which presupposes a direct or indirect
involvement of the government.
That herein [petitioner] searched all divisions and departments for a person named Engr. Morced N.
Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives
since October 30, 2007 and after a diligent and thorough research records show that no such person is
being detained in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis [sic]
alleged enforced disappearance, the undersigned had undertaken immediate investigation and will
pursue investigations up to its full completion in order to aid in the prosecution of the person or persons
responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt. Leonardo A. Espina’s
affidavit which alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny any participation in the alleged abduction or
illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in
the writ was mentioned that the alleged abduction was perpetrated by elements of PACER nor was there
any indication that the alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by
our men and by the alleged covert CIDG-PNP intelligence operatives alleged to have abducted or illegally
detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged disappearance of ENGR. MORCED
in my capacity as the chief PACER [sic] considering that our office, the Police Anti-Crime and Emergency
Response (PACER), a special task force created for the purpose of neutralizing or eradicating kidnap-for-
ransom groups which until now continue to be one of the menace of our society is a respondent in
kidnapping or illegal detention case. Simply put, our task is to go after kidnappers and charge them in
court and to abduct or illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of PACER Mindanao
Oriental (PACER-MOR) to conduct pro-active measures to investigate, locate/search the subject, identify
and apprehend the persons responsible, to recover and preserve evidence related to the disappearance
of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or persons responsible, to
identify witnesses and obtain statements from them concerning the disappearance and to determine the
cause, manner, location and time of disappearance as well as any pattern or practice that may have
brought about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO BRIONES JR., to
submit a written report regarding the disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax his written report.
That the investigation and measures being undertaken to locate/search the subject in coordination with
Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial
Office (PPO) and other AFP and PNP units/agencies in the area are ongoing with the instruction not to
leave any stone unturned so to speak in the investigation until the perpetrators in the instant case are
brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also submitted his
affidavit detailing the actions that he had taken upon receipt of the report on Tagitis’ disappearance,
viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of reported enforced
disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to me through
Radio Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30 p.m., a certain
Abdulnasser Matli, an employee of Islamic Development Bank, appeared before the Office of the Chief of
Police, Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis, scholarship
coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken by any member of the
Philippine National Police but rather he just disappeared from ASY Pension House situated at Kakuyagan
Village, Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin Kunnong, a student scholar,
was requested by him to purchase a vessel ticket at the Office of Weezam Express, however, when the
student returned back to ASY Pension House, he no longer found Engr. Tagitis there and when he
immediately inquired at the information counter regarding his whereabouts [sic], the person in charge in
the counter informed him that Engr. Tagitis had left the premises on October 30, 2007 around 1 o’clock
p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu Police
Provincial Office and other units through phone call and text messages to conduct investigation [sic] to
determine the whereabouts of the aggrieved party and the person or persons responsible for the threat,
act or omission, to recover and preserve evidence related to the disappearance of Engr. Tagitis, to
identify witnesses and obtain statements from them concerning his disappearance, to determine the
cause and manner of his disappearance, to identify and apprehend the person or persons involved in the
disappearance so that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection Management Division, I have
caused the following directives:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 15
 a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD Sulu PPO
to conduct joint investigation with CIDG and CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD Sulu PPO
to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our series of
directives for investigation and directing him to undertake exhaustive coordination efforts with
the owner of ASY Pension House and student scholars of IDB in order to secure corroborative
statements regarding the disappearance and whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to maximize
efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the cooperation of Prof.
Abdulnasser Matli and Arsimin Kunnong and/or whenever necessary, for them to voluntarily
submit for polygraph examination with the NBI so as to expunge all clouds of doubt that they
may somehow have knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal
Investigation and Detection Group, Police Regional Office 9, Zamboanga City, requesting
assistance to investigate the cause and unknown disappearance of Engr. Tagitis considering that
it is within their area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30, 2007
addressed to PD Sulu PPO requiring them to submit complete investigation report regarding the
case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct investigation [sic]
on the matter to determine the whereabouts of Engr. Tagitis and the circumstances related to his
disappearance and submitted the following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-1106-10-
2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still monitoring
the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police Station,
Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of the
facts of the disappearance and the action being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for
Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined but our office
is continuously intensifying the conduct of information gathering, monitoring and coordination for the
immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of favorable actions so far
taken on the disappearance, the CA directed Gen. Goltiao – as the officer in command of the area of
disappearance – to form TASK FORCE TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK
FORCE TAGITIS.19 The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was
exerting "extraordinary efforts" in handling the disappearance of Tagitis.20 As planned, (1) the first
hearing would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize
intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of
Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence report from
PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a possible motive for Tagitis’
disappearance.22 The intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of
the Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the Philippines,
who told the Provincial Governor of Sulu that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has reportedly taken
and carried away… more or less Five Million Pesos (P5,000,000.00) deposited and entrusted to his …
[personal] bank accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was]
intended for the … IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be responsible, he
personally went to the CIDG office in Zamboanga City to conduct an ocular inspection/investigation,
particularly of their detention cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently denied any knowledge or complicity in any
abduction.25 He further testified that prior to the hearing, he had already mobilized and given specific
instructions to their supporting units to perform their respective tasks; that they even talked to, but
failed to get any lead from the respondent in Jolo.26 In his submitted investigation report dated January
16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU and the
documents at hand, it is my own initial conclusion that the 9RCIDU and other PNP units in the area had
no participation neither [sic] something to do with [sic] mysterious disappearance of Engr. Morced Tagitis
last October 30, 2007. Since doubt has been raised regarding the emolument on the Islamic
Development Bank Scholar program of IDB that was reportedly deposited in the personal account of
Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be
done by resentment or sour grape among students who are applying for the scholar [sic] and were
denied which was allegedly conducted/screened by the subject being the coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the motive behind the
disappearance of the subject might be due to the funds he maliciously spent for his personal interest and
wanted to elude responsibilities from the institution where he belong as well as to the Islamic student
scholars should the statement of Prof. Matli be true or there might be a professional jealousy among
them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be dropped and dismissed
considering on [sic] the police and military actions in the area particularly the CIDG are exerting their
efforts and religiously doing their tasked [sic] in the conduct of its intelligence monitoring and
investigation for the early resolution of this instant case. But rest assured, our office, in coordination with
other law-enforcement agencies in the area, are continuously and religiously conducting our
investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did not appear to be
exerting extraordinary efforts in resolving Tagitis’ disappearance on the following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after the hearing, that GEN.
JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear photographs when it should
have been standard operating procedure in kidnappings or disappearances that the first agenda
was for the police to secure clear pictures of the missing person, Engr. Morced Tagitis, for
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 16
 dissemination to all parts of the country and to neighboring countries. It had been three (3)
months since GEN. JOEL GOLTIAO admitted having been informed on November 5, 2007 of the
alleged abduction of Engr. Morced Tagitis by alleged bad elements of the CIDG. It had been
more than one (1) month since the Writ of Amparo had been issued on December 28, 2007. It
had been three (3) weeks when battle formation was ordered through Task Force Tagitis, on
January 17, 2008. It was only on January 28, 2008 when the Task Force Tagitis requested for
clear and recent photographs of the missing person, Engr. Morced Tagitis, despite the Task
Force Tagitis’ claim that they already had an "all points bulletin", since November 5, 2007, on
the missing person, Engr. Morced Tagitis. How could the police look for someone who
disappeared if no clear photograph had been disseminated?
(2) Furthermore, Task Force Tagitis’ COL. AHIROM AJIRIM informed this Court that P/Supt KASIM
was designated as Col. Ahirom Ajirim’s replacement in the latter’s official designated post. Yet,
P/Supt KASIM’s subpoena was returned to this Court unserved. Since this Court was made to
understand that it was P/Supt KASIM who was the petitioner’s unofficial source of the military
intelligence information that Engr. Morced Tagitis was abducted by bad elements of the CIDG
(par. 15 of the Petition), the close contact between P/Supt KASIM and Col. Ahirom Ajirim of
TASK FORCE TAGITIS should have ensured the appearance of Col. KASIM in response to this
court’s subpoena and COL. KASIM could have confirmed the military intelligence information
that bad elements of the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went
to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga
holding a high position in the military (whom she did not then identify) gave her information that allowed
her to "specify" her allegations, "particularly paragraph 15 of the petition."29 This friend also told her that
her husband "[was] in good hands."30 The respondent also testified that she sought the assistance of her
former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP
CIDG is holding [her husband], Engineer Morced Tagitis."31 The respondent recounted that she went to
Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who
read to her and her friends (who were then with her) a "highly confidential report" that contained the
"alleged activities of Engineer Tagitis" and informed her that her husband was abducted because "he is
under custodial investigation" for being a liaison for "J.I. or Jema’ah Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she is Tagitis’ second wife, and
they have been married for thirteen years; Tagitis was divorced from his first wife.33 She last
communicated with her husband on October 29, 2007 at around 7:31 p.m. through text messaging;
Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.34
The respondent narrated that she learned of her husband’s disappearance on October 30, 2007 when
her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard from her father since the
time they arranged to meet in Manila on October 31, 2007.35 The respondent explained that it took her a
few days (or on November 5, 2007) to personally ask Kunnong to report her husband’s disappearance to
the Jolo Police Station, since she had the impression that her husband could not communicate with her
because his cellular phone’s battery did not have enough power, and that he would call her when he had
fully-charged his cellular phone’s battery.36
The respondent also identified the high-ranking military friend, who gave her the information found in
paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp
Karingal, Zamboanga through her boss.37 She also testified that she was with three other people, namely,
Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to
them the contents of the "highly confidential report" at Camp Katitipan, Davao City. The respondent
further narrated that the report indicated that her husband met with people belonging to a terrorist
group and that he was under custodial investigation. She then told Col. Kasim that her husband was a
diabetic taking maintenance medication, and asked that the Colonel relay to the persons holding him the
need to give him his medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,39 signed by the respondent,
detailing her efforts to locate her husband which led to her meetings with Col. Ancanan of the Philippine
Army and Col. Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan, the
respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our flight from
Davao City is 9:00 o’clock in the morning; we arrived at Zamboanga Airport at around 10:00 o’clock. We
[were] fetched by the two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao
Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed me and got
information about the personal background of Engr. Morced N. Tagitis. After he gathered all information,
he revealed to us the contents of text messages they got from the cellular phone of the subject Engr.
Tagitis. One of the very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis was
that she was not allowed to answer any telephone calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of Engr. Tagitis. After the said
meeting with Col. Ancanan, he treated us as guests to the city. His two staffs accompanied us to the mall
to purchase our plane ticket going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan and I were
discussing some points through phone calls. He assured me that my husband is alive and he’s last looked
[sic] in Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the whereabouts of my
husband, because I contacted some of my friends who have access to the groups of MILF, MNLF and ASG.
I called up Col. Ancanan several times begging to tell me the exact location of my husband and who held
him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP, Jolo did not give
me any information of the whereabouts of my husband. Col. Ancanan told me that "Sana ngayon alam
mo na kung saan ang kinalalagyan ng asawa mo." When I was in Zamboanga, I was thinking of dropping
by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of Police
of Jolo told me not to contact any AFP officials and he promised me that he can solve the case of my
husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr. Morced Tagitis,
yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to meet Mr.
Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to be abducted in
Jolo, Sulu on October 30, 2007. I asked him a favor to contact his connections in the military in Jolo, Sulu
where the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp Katitipan
located in Davao City looking for high-ranking official who can help me gather reliable information behind
the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary, accompanied me to
Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a short
conversation. And he assured me that he’ll do the best he can to help me find my husband.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 17
After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to Camp
Katitipan to meet Col. Kasim for he has an urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the time that
Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly connected [with] different
terrorist [groups], one of which he mentioned in the report was OMAR PATIK and a certain SANTOS - a
Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a supplier. These
are the two information that I can still remember. It was written in a long bond paper with PNP
Letterhead. It was not shown to us, yet Col. Kasim was the one who read it for us.
He asked a favor to me that "Please don’t quote my Name! Because this is a raw report." He assured me
that my husband is alive and he is in the custody of the military for custodial investigation. I told him to
please take care of my husband because he has aliments and he recently took insulin for he is a diabetic
patient.
In my petition for writ of amparo, I emphasized the information that I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to
corroborate her testimony regarding her efforts to locate her husband, in relation particularly with the
information she received from Col. Kasim. Mrs. Talbin testified that she was with the respondent when
she went to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that there was a
report and that he showed them a series of text messages from Tagitis’ cellular phone, which showed
that Tagitis and his daughter would meet in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the respondent together with
two other companions, namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to talk to Col.
Kasim.44 The respondent asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told
them that Tagitis was in good hands, although he was not certain whether he was with the PNP or with
the Armed Forces of the Philippines (AFP). She further recounted that based on the report Col. Kasim
read in their presence, Tagitis was under custodial investigation because he was being charged with
terrorism; Tagitis in fact had been under surveillance since January 2007 up to the time he was abducted
when he was seen talking to Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with
terrorism. Col. Kasim also told them that he could not give a copy of the report because it was a "raw
report."45 She also related that the Col. Kasim did not tell them exactly where Tagitis was being kept,
although he mentioned Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized that despite
what his January 4, 2008 affidavit indicated,51 he never told PS Supt. Pingay, or made any accusation, that
Tagitis took away money entrusted to him.52 Prof. Matli confirmed, however, that that he had received
an e-mail report53 from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking
assistance of the office in locating the funds of IDB scholars deposited in Tagitis’ personal account.54
On cross-examination by the respondent’s counsel, Prof. Matli testified that his January 4, 2008 affidavit
was already prepared when PS Supt. Pingay asked him to sign it.55 Prof Matli clarified that although he
read the affidavit before signing it, he "was not so much aware of… [its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the
respondent’s testimony, particularly the allegation that he had stated that Tagitis was in the custody of
either the military or the PNP.57 Col. Kasim categorically denied the statements made by the respondent
in her narrative report, specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for
the injured terrorists; (2) that Tagitis was under the custody of the military, since he merely said to the
respondent that "your husband is in good hands" and is "probably taken cared of by his armed
abductors;" and (3) that Tagitis was under custodial investigation by the military, the PNP or the CIDG
Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he received from his informant in
Sulu did not indicate that Tagitis was in the custody of the CIDG.59 He also stressed that the information
he provided to the respondent was merely a "raw report" sourced from "barangay intelligence" that still
needed confirmation and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the respondent was given to him
by his informant, who was a "civilian asset," through a letter which he considered as "unofficial."61 Col.
Kasim stressed that the letter was only meant for his "consumption" and not for reading by others.62 He
testified further that he destroyed the letter right after he read it to the respondent and her companions
because "it was not important to him" and also because the information it contained had no importance
in relation with the abduction of Tagitis.63 He explained that he did not keep the letter because it did not
contain any information regarding the whereabouts of Tagitis and the person(s) responsible for his
abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police Senior Superintendent
Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the respondent’s allegation that Tagitis
was in the custody of CIDG-Zamboanga City.65 Col. Pante clarified that the CIDG was the "investigative
arm" of the PNP, and that the CIDG "investigates and prosecutes all cases involving violations in the
Revised Penal Code particularly those considered as heinous crimes."66 Col. Pante further testified that
the allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was baseless, since
they did not conduct any operation in Jolo, Sulu before or after Tagitis’ reported disappearance.67 Col.
Pante added that the four (4) personnel assigned to the Sulu CIDT had no capability to conduct any
"operation," since they were only assigned to investigate matters and to monitor the terrorism
situation.68 He denied that his office conducted any surveillance on Tagitis prior to the latter’s
disappearance.69 Col. Pante further testified that his investigation of Tagitis’ disappearance was
unsuccessful; the investigation was "still facing a blank wall" on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 confirming that the disappearance of Tagitis was an
"enforced disappearance" under the United Nations (UN) Declaration on the Protection of All Persons
from Enforced Disappearances.72 The CA ruled that when military intelligence pinpointed the
investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as
an enforced disappearance. The conclusion that the CIDG was involved was based on the respondent’s
testimony, corroborated by her companion, Mrs. Talbin. The CA noted that the information that the
CIDG, as the police intelligence arm, was involved in Tagitis’ abduction came from no less than the
military – an independent agency of government. The CA thus greatly relied on the "raw report" from
Col. Kasim’s asset, pointing to the CIDG’s involvement in Tagitis’ abduction. The CA held that "raw
reports" from an "asset" carried "great weight" in the intelligence world. It also labeled as "suspect" Col.
Kasim’s subsequent and belated retraction of his statement that the military, the police, or the CIDG was
involved in the abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable" and "a bedlam of speculation" police theories
painting the disappearance as "intentional" on the part of Tagitis. He had no previous brushes with the
law or any record of overstepping the bounds of any trust regarding money entrusted to him; no student
of the IDB scholarship program ever came forward to complain that he or she did not get his or her
stipend. The CA also found no basis for the police theory that Tagitis was "trying to escape from the
clutches of his second wife," on the basis of the respondent’s testimony that Tagitis was a Muslim who
could have many wives under the Muslim faith, and that there was "no issue" at all when the latter
divorced his first wife in order to marry the second. Finally, the CA also ruled out kidnapping for ransom
by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis’ disappearance, since the
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 18
respondent, the police and the military noted that there was no acknowledgement of Tagitis’ abduction
or demand for payment of ransom – the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family,
and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads
Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to
provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition
against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on
the finding that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion
in its Resolution of April 9, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CA’s March 7, 2008 decision, the petitioners mainly dispute the
sufficiency in form and substance of the Amparo petition filed before the CA; the sufficiency of the legal
remedies the respondent took before petitioning for the writ; the finding that the rights to life, liberty
and security of Tagitis had been violated; the sufficiency of evidence supporting the conclusion that
Tagitis was abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction; and,
generally, the ruling that the respondent discharged the burden of proving the allegations of the petition
by substantial evidence.74
THE COURT’S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondent’s Amparo petition, the petitioners
contend that the petition violated Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the
petitioners allege that the respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis’ rights to life,
liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible for his
disappearance, and the respondent’s source of information;
3) allege that the abduction was committed at the petitioners’ instructions or with their
consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have custody over her
husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of their duties
in the investigation of Tagitis’ disappearance; and
7) specify what legally available efforts she took to determine the fate or whereabouts of her
husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of
the portions the petitioners cite):75
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by
an unlawful act or omission of the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of
the investigating authority or individuals, as well as the manner and conduct of the investigation,
together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the
threatened or actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must of
course state the ultimate facts constituting the cause of action, omitting the evidentiary details.76 In an
Amparo petition, however, this requirement must be read in light of the nature and purpose of the
proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with
certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or
her, or where the victim is detained, because these information may purposely be hidden or covered up
by those who caused the disappearance. In this type of situation, to require the level of specificity, detail
and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule a
token gesture of judicial concern for violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the
test in reading the petition should be to determine whether it contains the details available to the
petitioner under the circumstances, while presenting a cause of action showing a violation of the victim’s
rights to life, liberty and security through State or private party action. The petition should likewise be
read in its totality, rather than in terms of its isolated component parts, to determine if the required
elements – namely, of the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security – are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which
Tagitis suddenly dropped out of sight after engaging in normal activities, and thereafter was nowhere to
be found despite efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to
paragraphs 15 and 16, that according to reliable information, police operatives were the perpetrators of
the abduction. It also clearly alleged how Tagitis’ rights to life, liberty and security were violated when he
was "forcibly taken and boarded on a motor vehicle by a couple of burly men believed to be police
intelligence operatives," and then taken "into custody by the respondents’ police intelligence operatives
since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his will in an
earnest attempt of the police to involve and connect [him] with different terrorist groups."77
These allegations, in our view, properly pleaded ultimate facts within the pleader’s knowledge about
Tagitis’ disappearance, the participation by agents of the State in this disappearance, the failure of the
State to release Tagitis or to provide sufficient information about his whereabouts, as well as the actual
violation of his right to liberty. Thus, the petition cannot be faulted for any failure in its statement of a
cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required
by Section 5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to
facilitate the resolution of the petition, the Amparo Rule incorporated the requirement for supporting
affidavits, with the annotation that these can be used as the affiant’s direct testimony.78 This
requirement, however, should not be read as an absolute one that necessarily leads to the dismissal of
the petition if not strictly followed. Where, as in this case, the petitioner has substantially complied with
the requirement by submitting a verified petition sufficiently detailing the facts relied upon, the strict
need for the sworn statement that an affidavit represents is essentially fulfilled. We note that the failure
to attach the required affidavits was fully cured when the respondent and her witness (Mrs. Talbin)
personally testified in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and
flesh out the allegations of the petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance must have
been made, specifying the manner and results of the investigation. Effectively, this requirement seeks to
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 19
establish at the earliest opportunity the level of diligence the public authorities undertook in relation
with the reported disappearance.79
We reject the petitioners’ argument that the respondent’s petition did not comply with the Section 5(d)
requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his
companions immediately reported Tagitis’ disappearance to the police authorities in Jolo, Sulu as soon as
they were relatively certain that he indeed had disappeared. The police, however, gave them the "ready
answer" that Tagitis could have been abducted by the Abu Sayyaf group or other anti-government
groups. The respondent also alleged in paragraphs 17 and 18 of her petition that she filed a "complaint"
with the PNP Police Station in Cotobato and in Jolo, but she was told of "an intriguing tale" by the police
that her husband was having "a good time with another woman." The disappearance was alleged to have
been reported, too, to no less than the Governor of the ARMM, followed by the respondent’s personal
inquiries that yielded the factual bases for her petition.80
These allegations, to our mind, sufficiently specify that reports have been made to the police authorities,
and that investigations should have followed. That the petition did not state the manner and results of
the investigation that the Amparo Rule requires, but rather generally stated the inaction of the police,
their failure to perform their duty to investigate, or at the very least, their reported failed efforts, should
not be a reflection on the completeness of the petition. To require the respondent to elaborately specify
the names, personal circumstances, and addresses of the investigating authority, as well the manner and
conduct of the investigation is an overly strict interpretation of Section 5(d), given the respondent’s
frustrations in securing an investigation with meaningful results. Under these circumstances, we are
more than satisfied that the allegations of the petition on the investigations undertaken are sufficiently
complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition – that otherwise is not supported by
sufficient allegations to constitute a proper cause of action – as a means to "fish" for evidence.81 The
petitioners contend that the respondent’s petition did not specify what "legally available efforts were
taken by the respondent," and that there was an "undue haste" in the filing of the petition when, instead
of cooperating with authorities, the respondent immediately invoked the Court’s intervention.
We do not see the respondent’s petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege "the
actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the
identity of the person responsible for the threat, act or omission." The following allegations of the
respondent’s petition duly outlined the actions she had taken and the frustrations she encountered, thus
compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early
lunch but while out on the street, a couple of burly men believed to be police intelligence operatives,
forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of
his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and
reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was
immediately given a ready answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group
and other groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong reported the
matter to the [respondent](wife of Engr. Tagitis) by phone and other responsible officers and
coordinators of the IDB Scholarship Programme in the Philippines who alerted the office of the Governor
of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees with the Land Bank in
Digos branch, Digos City, Davao del Sur, who likewise sought help from some of their friends in the
military who could help them find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody
of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his
will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist
groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in
Jolo, as suggested by her friends, seeking their help to find her husband, but [the respondent’s] request
and pleadings failed to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police
Headquarters again in Cotobato City and also to the different Police Headquarters including the police
headquarters in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these
places have been visited by the [respondent] in search for her husband, which entailed expenses for her
trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends
and relatives only to try complying to the different suggestions of these police officers, despite of which,
her efforts produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under
the circumstances, [respondent] has no other plain, speedy and adequate remedy to protect and get the
release of subject Engr. Morced Tagitis from the illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of the subject’s human and constitutional rights,
except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondent’s petition for the Writ of Amparo is sufficient
in form and substance and that the Court of Appeals had every reason to proceed with its consideration
of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule on the Writ of Amparo in
an enforced disappearance situation. For a deeper appreciation of the application of this Rule to an
enforced disappearance situation, a brief look at the historical context of the writ and enforced
disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf
Hitler’s Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.82 The Third Reich’s Night
and Fog Program, a State policy, was directed at persons in occupied territories "endangering German
security"; they were transported secretly to Germany where they disappeared without a trace. In order
to maximize the desired intimidating effect, the policy prohibited government officials from providing
information about the fate of these targeted persons.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and outraging the
world when individuals, numbering anywhere from 6,000 to 24,000, were reported to have
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 20
"disappeared" during the military regime in Argentina. Enforced disappearances spread in Latin America,
and the issue became an international concern when the world noted its widespread and systematic use
by State security forces in that continent under Operation Condor84 and during the Dirty War85 in the
1970s and 1980s. The escalation of the practice saw political activists secretly arrested, tortured, and
killed as part of governments’ counter-insurgency campaigns. As this form of political brutality became
routine elsewhere in the continent, the Latin American media standardized the term "disappearance" to
describe the phenomenon. The victims of enforced disappearances were called the
"desaparecidos,"86 which literally means the "disappeared ones."87 In general, there are three different
kinds of "disappearance" cases:
1) those of people arrested without witnesses or without positive identification of the arresting
agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant and held in
complete isolation for weeks or months while their families are unable to discover their
whereabouts and the military authorities deny having them in custody until they eventually
reappear in one detention center or another; and
3) those of victims of "salvaging" who have disappeared until their lifeless bodies are later
discovered.88
In the Philippines, enforced disappearances generally fall within the first two categories,89 and 855 cases
were recorded during the period of martial law from 1972 until 1986. Of this number, 595 remained
missing, 132 surfaced alive and 127 were found dead. During former President Corazon C. Aquino’s term,
820 people were reported to have disappeared and of these, 612 cases were documented. Of this
number, 407 remain missing, 108 surfaced alive and 97 were found dead. The number of enforced
disappearances dropped during former President Fidel V. Ramos’ term when only 87 cases were
reported, while the three-year term of former President Joseph E. Estrada yielded 58 reported cases.
KARAPATAN, a local non-governmental organization, reports that as of March 31, 2008, the records show
that there were a total of 193 victims of enforced disappearance under incumbent President Gloria M.
Arroyo’s administration. The Commission on Human Rights’ records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive, 62
were found dead, and 76 still have undetermined status.90 Currently, the United Nations Working Group
on Enforced or Involuntary Disappearance91 reports 619 outstanding cases of enforced or involuntary
disappearances covering the period December 1, 2007 to November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced
disappearances or threats thereof."93 We note that although the writ specifically covers "enforced
disappearances," this concept is neither defined nor penalized in this jurisdiction. The records of the
Supreme Court Committee on the Revision of Rules (Committee) reveal that the drafters of the Amparo
Rule initially considered providing an elemental definition of the concept of enforced disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a specific definition
[for] extrajudicial killings and enforced disappearances. From that definition, then we can proceed to
formulate the rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: … As things stand, there is no law penalizing extrajudicial killings and enforced
disappearances… so initially also we have to [come up with] the nature of these extrajudicial killings and
enforced disappearances [to be covered by the Rule] because our concept of killings and disappearances
will define the jurisdiction of the courts. So we’ll have to agree among ourselves about the nature of
killings and disappearances for instance, in other jurisdictions, the rules only cover state actors. That is an
element incorporated in their concept of extrajudicial killings and enforced disappearances. In other
jurisdictions, the concept includes acts and omissions not only of state actors but also of non state actors.
Well, more specifically in the case of the Philippines for instance, should these rules include the killings,
the disappearances which may be authored by let us say, the NPAs or the leftist organizations and
others. So, again we need to define the nature of the extrajudicial killings and enforced disappearances
that will be covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of Representatives96 and in
the Senate97 on extrajudicial killings and enforced disappearances, and resolved to do away with a clear
textual definition of these terms in the Rule. The Committee instead focused on the nature and scope of
the concerns within its power to address and provided the appropriate remedy therefor, mindful that an
elemental definition may intrude into the ongoing legislative efforts.98
As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not
crimes penalized separately from the component criminal acts undertaken to carry out these killings and
enforced disappearances and are now penalized under the Revised Penal Code and special laws.99 The
simple reason is that the Legislature has not spoken on the matter; the determination of what acts are
criminal and what the corresponding penalty these criminal acts should carry are matters of substantive
law that only the Legislature has the power to enact under the country’s constitutional scheme and
power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial killings and enforced
disappearances, however, the Supreme Court is not powerless to act under its own constitutional
mandate to promulgate "rules concerning the protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts,"100 since extrajudicial killings and enforced disappearances,
by their nature and purpose, constitute State or private party violation of the constitutional rights of
individuals to life, liberty and security. Although the Court’s power is strictly procedural and as such does
not diminish, increase or modify substantive rights, the legal protection that the Court can provide can
be very meaningful through the procedures it sets in addressing extrajudicial killings and enforced
disappearances. The Court, through its procedural rules, can set the procedural standards and thereby
directly compel the public authorities to act on actual or threatened violations of constitutional rights. To
state the obvious, judicial intervention can make a difference – even if only procedurally – in a situation
when the very same investigating public authorities may have had a hand in the threatened or actual
violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do not rule on any issue of
criminal culpability for the extrajudicial killing or enforced disappearance. This is an issue that requires
criminal action before our criminal courts based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken place and who is responsible or accountable
for this disappearance, and to define and impose the appropriate remedies to address it. The burden for
the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold.
The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect
contempt from this Court when governmental efforts are less than what the individual situations require.
The second is to address the disappearance, so that the life of the victim is preserved and his or her
liberty and security restored. In these senses, our orders and directives relative to the writ are continuing
efforts that are not truly terminated until the extrajudicial killing or enforced disappearance is fully
addressed by the complete determination of the fate and the whereabouts of the victim, by the
production of the disappeared person and the restoration of his or her liberty and security, and, in the
proper case, by the commencement of criminal action against the guilty parties.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 21
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is considered a flagrant
violation of human rights.101 It does not only violate the right to life, liberty and security of the
desaparecido; it affects their families as well through the denial of their right to information regarding
the circumstances of the disappeared family member. Thus, enforced disappearances have been said to
be "a double form of torture," with "doubly paralyzing impact for the victims," as they "are kept ignorant
of their own fates, while family members are deprived of knowing the whereabouts of their detained
loved ones" and suffer as well the serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner.102
The UN General Assembly first considered the issue of "Disappeared Persons" in December 1978 under
Resolution 33/173. The Resolution expressed the General Assembly’s deep concern arising from "reports
from various parts of the world relating to enforced or involuntary disappearances," and requested the
"UN Commission on Human Rights to consider the issue of enforced disappearances with a view to
making appropriate recommendations."103
In 1992, in response to the reality that the insidious practice of enforced disappearance had become a
global phenomenon, the UN General Assembly adopted the Declaration on the Protection of All Persons
from Enforced Disappearance (Declaration).104 This Declaration, for the first time, provided in its third
preambular clause a working description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur,
in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of
their liberty by officials of different branches or levels of Government, or by organized groups or private
individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the
Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a
refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection
of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the International
Convention for the Protection of All Persons from Enforced Disappearance (Convention).105 The
Convention was opened for signature in Paris, France on February 6, 2007.106 Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is a right not to be
subject to enforced disappearance107 and that this right is non-derogable.108 It provides that no one shall
be subjected to enforced disappearance under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties to codify enforced disappearance as an
offense punishable with appropriate penalties under their criminal law.109 It also recognizes the right of
relatives of the disappeared persons and of the society as a whole to know the truth on the fate and
whereabouts of the disappeared and on the progress and results of the investigation.110 Lastly, it
classifies enforced disappearance as a continuing offense, such that statutes of limitations shall not apply
until the fate and whereabouts of the victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet
committed to enact any law penalizing enforced disappearance as a crime. The absence of a specific
penal law, however, is not a stumbling block for action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation of the constitutional rights to life, liberty and
security that the Supreme Court is mandated by the Constitution to protect through its rule-making
powers.
Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting on Amparo
cases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the various
conventions we signed and ratified, particularly the conventions touching on humans rights. Under the
UN Charter, the Philippines pledged to "promote universal respect for, and observance of, human rights
and fundamental freedoms for all without distinctions as to race, sex, language or religion."112 Although
no universal agreement has been reached on the precise extent of the "human rights and fundamental
freedoms" guaranteed to all by the Charter,113 it was the UN itself that issued the Declaration on
enforced disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the purposes of
the Charter of the United Nations and as a grave and flagrant violation of human rights and fundamental
freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in
international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration,
the ban on enforced disappearance cannot but have its effects on the country, given our own adherence
to "generally accepted principles of international law as part of the law of the land."115
In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,116 we
held that:
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed
to have the force of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of international law" as norms of general or customary
international law that are binding on all states. We held further:117
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The
classical formulation in international law sees those customary rules accepted as binding result from the
combination [of] two elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of international law today is Article 38(1) of the Statute
of the International Court of Justice, which provides that the Court shall apply "international custom, as
evidence of a general practice accepted as law."118 The material sources of custom include State practice,
State legislation, international and national judicial decisions, recitals in treaties and other international
instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions
relating to legal questions in the UN General Assembly.119 Sometimes referred to as "evidence" of
international law,120 these sources identify the substance and content of the obligations of States and are
indicative of the "State practice" and "opinio juris" requirements of international law.121 We note the
following in these respects:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 22
First, barely two years from the adoption of the Declaration, the Organization of American States (OAS)
General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in June
1994.122 State parties undertook under this Convention "not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or suspension of individual guarantees."123 One of
the key provisions includes the States’ obligation to enact the crime of forced disappearance in their
respective national criminal laws and to establish jurisdiction over such cases when the crime was
committed within their jurisdiction, when the victim is a national of that State, and "when the alleged
criminal is within its territory and it does not proceed to extradite him," which can be interpreted as
establishing universal jurisdiction among the parties to the Inter-American Convention.124 At present,
Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in accordance with the
Inter-American Convention and have defined activities involving enforced disappearance to be
criminal.1251avvphi1
Second, in Europe, the European Convention on Human Rights has no explicit provision dealing with the
protection against enforced disappearance. The European Court of Human Rights (ECHR), however, has
applied the Convention in a way that provides ample protection for the underlying rights affected by
enforced disappearance through the Convention’s Article 2 on the right to life; Article 3 on the
prohibition of torture; Article 5 on the right to liberty and security; Article 6, paragraph 1 on the right to a
fair trial; and Article 13 on the right to an effective remedy. A leading example demonstrating the
protection afforded by the European Convention is Kurt v. Turkey,126 where the ECHR found a violation of
the right to liberty and security of the disappeared person when the applicant’s son disappeared after
being taken into custody by Turkish forces in the Kurdish village of Agilli in November 1993. It further
found the applicant (the disappeared person’s mother) to be a victim of a violation of Article 3, as a result
of the silence of the authorities and the inadequate character of the investigations undertaken. The ECHR
also saw the lack of any meaningful investigation by the State as a violation of Article 13.127
Third, in the United States, the status of the prohibition on enforced disappearance as part of customary
international law is recognized in the most recent edition of Restatement of the Law: The Third,128 which
provides that "[a] State violates international law if, as a matter of State policy, it practices, encourages,
or condones… (3) the murder or causing the disappearance of individuals."129 We significantly note that in
a related matter that finds close identification with enforced disappearance – the matter of torture – the
United States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala130 that the
prohibition on torture had attained the status of customary international law. The court further
elaborated on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision the obligations of
member nations under the Charter. Since their adoption, "(m)embers can no longer contend that they do
not know what human rights they promised in the Charter to promote." Moreover, a U.N. Declaration is,
according to one authoritative definition, "a formal and solemn instrument, suitable for rare occasions
when principles of great and lasting importance are being enunciated." Accordingly, it has been observed
that the Universal Declaration of Human Rights "no longer fits into the dichotomy of ‘binding treaty’
against ‘non-binding pronouncement,' but is rather an authoritative statement of the international
community." Thus, a Declaration creates an expectation of adherence, and "insofar as the expectation is
gradually justified by State practice, a declaration may by custom become recognized as laying down
rules binding upon the States." Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International Convention
on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory and a State Party, the UN
Human Rights Committee, under the Office of the 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 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
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International Criminal Court (ICC)
also covers enforced disappearances insofar as they are defined as crimes against humanity,132 i.e.,
crimes "committed as part of a widespread or systematic attack against any civilian population, with
knowledge of the attack." While more than 100 countries have ratified the Rome Statute,133 the
Philippines is still merely a signatory and has not yet ratified it. We note that Article 7(1) of the Rome
Statute has been 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 the
Rome Statute of the ICC has given rise to a number of national criminal provisions also covering enforced
disappearance.135
While the Philippines is not yet formally bound by the terms of the Convention on enforced
disappearance (or by the specific terms of the Rome Statute) and has not formally declared enforced
disappearance as a specific crime, the above recital shows that enforced disappearance as a State
practice has been repudiated by the international community, so that the ban on it is now a generally
accepted principle of international law, which we should consider a part of the law of the land, and which
we should act upon to the extent already allowed under our laws and the international conventions that
bind us.
The following civil or political rights under the Universal Declaration of Human Rights, the ICCPR and the
International Convention on Economic, Social and Cultural Rights (ICESR) may be infringed in the course
of a disappearance:136
1) the right to recognition as a person before the law;
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;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [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:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop the possibilities of
judicial remedy;
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 23
 (c) To ensure that the competent authorities shall enforce such remedies when granted.
[Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the right to an effective
remedy under Article 2 of the ICCPR includes the obligation of the State to investigate ICCPR violations
promptly, thoroughly, and effectively, viz:137
15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights, States
Parties must ensure that individuals also have accessible and effective remedies to vindicate those
rights… The Committee attaches importance to States Parties' establishing appropriate judicial and
administrative mechanisms for addressing claims of rights violations under domestic law… Administrative
mechanisms are particularly required to give effect to the general obligation to investigate allegations of
violations promptly, thoroughly and effectively through independent and impartial bodies. A failure by a
State Party to investigate allegations of violations could in and of itself give rise to a separate breach of
the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective
remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment No. 31 that failure to
investigate as well as failure to bring to justice the perpetrators of ICCPR violations could in and of itself
give rise to a separate breach of the Covenant, thus:138
18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights,
States Parties must ensure that those responsible are brought to justice. As with failure to investigate,
failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate
breach of the Covenant. These obligations arise notably in respect of those violations recognized as
criminal under either domestic or international law, such as torture and similar cruel, inhuman and
degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance
(articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of
sustained concern by the Committee, may well be an important contributing element in the recurrence
of the violations. When committed as part of a widespread or systematic attack on a civilian population,
these violations of the Covenant are crimes against humanity (see Rome Statute of the International
Criminal Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to security of persons is a
guarantee of the protection of one’s right by the government, held that:
The right to security of person in this third sense is a corollary of the policy that the State "guarantees full
respect for human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the
chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government does not afford  protection  to these rights
especially when they are under threat. Protection includes conducting effective investigations,
organization of the government apparatus to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights stressed the importance of investigation in the
Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or
his family or upon their offer of proof, without an effective search for the truth by the government.
[Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right to security" not only as
a prohibition on the State against arbitrary deprivation of liberty, but also as the imposition of a positive
duty to afford protection to the right to liberty. The Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with the substantive and
procedural rules of national law but must equally be in keeping with the very purpose of Article 5,
namely to protect the individual from arbitrariness... Having assumed control over that individual, it is
incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be
seen as requiring the authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into an arguable claim that a person has
been taken into custody and has not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which the Court made
effective on October 24, 2007. Although the Amparo Rule still has gaps waiting to be filled through
substantive law, as evidenced primarily by the lack of a concrete definition of "enforced disappearance,"
the materials cited above, among others, provide ample guidance and standards on how, through the
medium of the Amparo Rule, the Court can provide remedies and protect the constitutional rights to life,
liberty and security that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the burden of proving the
allegations of the petition for the Writ of Amparo by the degree of proof required by the Amparo Rule,
we shall discuss briefly the unique evidentiary difficulties presented by enforced disappearance cases;
these difficulties form part of the setting that the implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself – the party whose involvement is alleged –
investigates enforced disappearances. Past experiences in other jurisdictions show that the evidentiary
difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct perpetrators.141 Experts note
that abductors are well organized, armed and usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under some form of
governmental authority. In many countries the units that plan, implement and execute the program are
generally specialized, highly-secret bodies within the armed or security forces. They are generally
directed through a separate, clandestine chain of command, but they have the necessary credentials to
avoid or prevent any interference by the "legal" police forces. These authorities take their victims to
secret detention centers where they subject them to interrogation and torture without fear of judicial or
other controls.142
In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to
speak out publicly or to testify on the disappearance out of fear for their own lives.143 We have had
occasion to note this difficulty in Secretary of Defense v. Manalo144 when we acknowledged that "where
powerful military officers are implicated, the hesitation of witnesses to surface and testify against them
comes as no surprise."
Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the
central piece of evidence in an enforced disappearance – i.e., the corpus delicti or the victim’s body – is
usually concealed to effectively thwart the start of any investigation or the progress of one that may have
begun.145 The problem for the victim’s family is the State’s virtual monopoly of access to pertinent
evidence. The Inter-American Court of Human Rights (IACHR) observed in the landmark case of
Velasquez Rodriguez146 that inherent to the practice of enforced disappearance is the deliberate use of
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 24
the State’s power to destroy the pertinent evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.147
Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced
disappearance ever occurred.148 "Deniability" is central to the policy of enforced disappearances, as the
absence of any proven disappearance makes it easier to escape the application of legal standards
ensuring the victim’s human rights.149 Experience shows that government officials typically respond to
requests for information about desaparecidos by saying that they are not aware of any disappearance,
that the missing people may have fled the country, or that their names have merely been invented.150
These considerations are alive in our minds, as these are the difficulties we confront, in one form or
another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and the degree
and burden of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice
or judge may call for a preliminary conference to simplify the issues and determine the possibility of
obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims
by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as required by applicable
laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary diligence as required
by applicable laws, rules and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that official duty has been
regularly performed or evade responsibility or liability.
Section 18. Judgment. – … If the allegations in the petition are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied. [Emphasis supplied]
These characteristics – namely, of being summary and the use of substantial evidence as the required
level of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in
court proceedings) – reveal the clear intent of the framers of the Amparo Rule to have the equivalent of
an administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard
of diligence required – the duty of public officials and employees to observe extraordinary diligence –
point, too, to the extraordinary measures expected in the protection of constitutional rights and in the
consequent handling and investigation of extra-judicial killings and enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and
form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by
substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and
prove their defenses based on the standard of diligence required. The rebuttable case, of course, must
show that an enforced disappearance took place under circumstances showing a violation of the victim’s
constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities
to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations151 provided the Court its first opportunity
to define the substantial evidence required to arrive at a valid decision in administrative proceedings. To
directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. [citations omitted] The statute provides that ‘the rules
of evidence prevailing in courts of law and equity shall not be controlling.’ The obvious purpose of this
and similar provisions is to free administrative boards from the compulsion of technical rules so that the
mere admission of matter which would be deemed incompetent in judicial proceedings would not
invalidate the administrative order. [citations omitted] But this assurance of a desirable flexibility in
administrative procedure does not go so far as to justify orders without a basis in evidence having
rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the Court’s first petition for a Writ of Amparo, we
recognized that the full and exhaustive proceedings that the substantial evidence standard regularly
requires do not need to apply due to the summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a summary proceeding
that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is
not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for
damages requiring preponderance of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the unique difficulties
presented by the nature of enforced disappearances, heretofore discussed, which difficulties this Court
must frontally meet if the Amparo Rule is to be given a chance to achieve its objectives. These
evidentiary difficulties compel the Court to adopt standards appropriate and responsive to the
circumstances, without transgressing the due process requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR – faced with a lack of direct evidence that the
government of Honduras was involved in Velasquez Rodriguez’ disappearance – adopted a relaxed and
informal evidentiary standard, and established the rule that presumes governmental responsibility for a
disappearance if it can be proven that the government carries out a general practice of enforced
disappearances and the specific case can be linked to that practice.154 The IACHR took note of the realistic
fact that enforced disappearances could be proven only through circumstantial or indirect evidence or by
logical inference; otherwise, it was impossible to prove that an individual had been made to disappear. It
held:
130. The practice of international and domestic courts shows that direct evidence, whether testimonial
or documentary, is not the only type of evidence that may be legitimately considered in reaching a
decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to
conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations of disappearances,
because this type of repression is characterized by an attempt to suppress all information about the
kidnapping or the whereabouts and fate of the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velásquez (Manfredo) was carried out by agents who
acted under cover of public authority, the IACHR relied on circumstantial evidence including the hearsay
testimony of Zenaida Velásquez, the victim’s sister, who described Manfredo’s kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad
daylight. She also told the Court that a former Honduran military official had announced that Manfredo
was kidnapped by a special military squadron acting under orders of the Chief of the Armed
Forces.155 The IACHR likewise considered the hearsay testimony of a second witness who asserted that he
had been told by a Honduran military officer about the disappearance, and a third witness who testified
that he had spoken in prison to a man who identified himself as Manfredo.156
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 25
Velasquez stresses the lesson that flexibility is necessary under the unique circumstances that enforced
disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be
responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission
and appreciation of evidence, as arbitrariness entails violation of rights and cannot be used as an
effective counter-measure; we only compound the problem if a wrong is addressed by the commission of
another wrong. On the other hand, we cannot be very strict in our evidentiary rules and cannot consider
evidence the way we do in the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not strictly observed. Thus,
while we must follow the substantial evidence rule, we must observe flexibility in considering the
evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality,
and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic
test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all
other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic
minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the
Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child
Witness157 is expressly recognized as an exception to the hearsay rule. This Rule allows the admission of
the hearsay testimony of a child describing any act or attempted act of sexual abuse in any criminal or
non-criminal proceeding, subject to certain prerequisites and the right of cross-examination by the
adverse party. The admission of the statement is determined by the court in light of specified subjective
and objective considerations that provide sufficient indicia of reliability of the child witness.158 These
requisites for admission find their counterpart in the present case under the above-described conditions
for the exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial
killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced disappearance within the meaning of
this term under the UN Declaration we have cited?
The Convention defines enforced disappearance as "the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which
place such a person outside the protection of the law."159 Under this definition, the elements that
constitute enforced disappearance are essentially fourfold:160
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting with the
authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the
disappeared person; and
(d) placement of the disappeared person outside the protection of the law. [Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared. The direct evidence at hand
only shows that Tagitis went out of the ASY Pension House after depositing his room key with the hotel
desk and was never seen nor heard of again. The undisputed conclusion, however, from all concerned –
the petitioner, Tagitis’ colleagues and even the police authorities – is that Tagistis disappeared under
mysterious circumstances and was never seen again. The respondent injected the causal element in her
petition and testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga abducted or
arrested Tagitis. If at all, only the respondent’s allegation that Tagistis was under CIDG Zamboanga
custody stands on record, but it is not supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as her bases for her
allegation that Tagistis had been placed under government custody (in contrast with CIDG Zamboanga
custody). The first was an unnamed friend in Zamboanga (later identified as Col. Ancanan), who occupied
a high position in the military and who allegedly mentioned that Tagitis was in good hands. Nothing came
out of this claim, as both the respondent herself and her witness, Mrs. Talbin, failed to establish that Col.
Ancanan gave them any information that Tagitis was in government custody. Col. Ancanan, for his part,
admitted the meeting with the respondent but denied giving her any information about the
disappearance.
The more specific and productive source of information was Col. Kasim, whom the respondent, together
with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To quote the relevant portions of the
respondent’s testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of your husband
particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me that my husband
is being abducted [sic] because he is under custodial investigation because he is allegedly "parang liason
ng J.I.", sir.
Q: What is J.I.?
A: Jema’ah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those reports are highly
confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, ma’am.
Q: And a certain Col. Kasim told you that your husband was abducted and under custodial investigation?
A: Yes, ma’am.
Q: And you mentioned that he showed you a report?
A: Yes, ma’am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were highly confidential. That is a
military report, ma’am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma’am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma’am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, ma’am.162
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 26
xxxx
Q: When you were told that your husband is in good hands, what was your reaction and what did you
do?
A: May binasa kasi sya that my husband has a parang meeting with other people na parang mga terorista
na mga tao. Tapos at the end of the report is [sic] under custodial investigation. So I told him "Colonel,
my husband is sick. He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa
ko na bigyan siya ng gamot, ma’am."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being held by the CIDG in
Zamboanga, did you go to CIDG Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na effort ko because
I know that they would deny it, ma’am.164
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony that her
husband was abducted and held under custodial investigation by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November 24, 2007, who was with
you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if he can furnish us the
location of Engr. Tagitis. And he was reading this report. He told us that Engr. Tagitis is in good hands. He
is with the military, but he is not certain whether he is with the AFP or PNP. He has this serious case. He
was charged of terrorism because he was under surveillance from January 2007 up to the time that he
was abducted. He told us that he was under custodial investigation. As I’ve said earlier, he was seen
under surveillance from January. He was seen talking to Omar Patik, a certain Santos of Bulacan who is
also a Balik Islam and charged with terrorism. He was seen carrying boxes of medicines. Then we asked
him how long will he be in custodial investigation. He said until we can get some information. But he also
told us that he cannot give us that report because it was a raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in document form, in a piece of paper or was it
in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I don’t know if it was computerized but I’m
certain that it was typewritten. I’m not sure if it used computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.165
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I’ve mentioned, we just waited because that raw information that he was reading
to us [sic] after the custodial investigation, Engineer Tagitis will be released. [Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and that he provided them
information based on the input of an unnamed asset. He simply claimed in his testimony that the
"informal letter" he received from his informant in Sulu did not indicate that Tagitis was in the custody of
the CIDG. He also stressed that the information he provided the respondent was merely a "raw report"
from "barangay intelligence" that still needed confirmation and "follow up" as to its veracity.167
To be sure, the respondent’s and Mrs. Talbin’s testimonies were far from perfect, as the petitioners
pointed out. The respondent mistakenly characterized Col. Kasim as a "military officer" who told her that
"her husband is being abducted because he is under custodial investigation because he is allegedly
‘parang liason ng J.I.’" The petitioners also noted that "Mrs. Talbin’s testimony imputing certain
statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not certain whether it is the
PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who would
certainly know that the PNP is not part of the military."
Upon deeper consideration of these inconsistencies, however, what appears clear to us is that the
petitioners never really steadfastly disputed or presented evidence to refute the credibility of the
respondent and her witness, Mrs. Talbin. The inconsistencies the petitioners point out relate, more than
anything else, to details that should not affect the credibility of the respondent and Mrs. Talbin; the
inconsistencies are not on material points.168 We note, for example, that these witnesses are lay people
in so far as military and police matters are concerned, and confusion between the police and the military
is not unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather than
prevarication169and only tend to strengthen their probative value, in contrast to testimonies from various
witnesses dovetailing on every detail; the latter cannot but generate suspicion that the material
circumstances they testified to were integral parts of a well thought of and prefabricated story.170
Based on these considerations and the unique evidentiary situation in enforced disappearance cases, we
hold it duly established that Col. Kasim informed the respondent and her friends, based on the
informant’s letter, that Tagitis, reputedly a liaison for the JI and who had been under surveillance since
January 2007, was "in good hands" and under custodial investigation for complicity with the JI after he
was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik Islam" charged with
terrorism. The respondent’s and Mrs. Talbin’s testimonies cannot simply be defeated by Col. Kasim’s
plain denial and his claim that he had destroyed his informant’s letter, the critical piece of evidence that
supports or negates the parties’ conflicting claims. Col. Kasim’s admitted destruction of this letter –
effectively, a suppression of this evidence – raises the presumption that the letter, if produced, would be
proof of what the respondent claimed.171 For brevity, we shall call the evidence of what Col. Kasim
reported to the respondent to be the "Kasim evidence."
Given this evidence, our next step is to decide whether we can accept this evidence, in lieu of direct
evidence, as proof that the disappearance of Tagitis was due to action with government participation,
knowledge or consent and that he was held for custodial investigation. We note in this regard that Col.
Kasim was never quoted to have said that the custodial investigation was by the CIDG Zamboanga. The
Kasim evidence only implies government intervention through the use of the term "custodial
investigation," and does not at all point to CIDG Zamboanga as Tagitis’ custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence – i.e., evidence whose
probative value is not based on the personal knowledge of the witnesses (the respondent, Mrs. Talbin
and Col. Kasim himself) but on the knowledge of some other person not on the witness stand (the
informant).172
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 27
To say that this piece of evidence is incompetent and inadmissible evidence of what it substantively
states is to acknowledge – as the petitioners effectively suggest – that in the absence of any direct
evidence, we should simply dismiss the petition. To our mind, an immediate dismissal for this reason is
no different from a statement that the Amparo Rule – despite its terms – is ineffective, as it cannot allow
for the special evidentiary difficulties that are unavoidably present in Amparo situations, particularly in
extrajudicial killings and enforced disappearances. The Amparo Rule was not promulgated with this
intent or with the intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from local and international
experiences in extrajudicial killings and enforced disappearances, as the situation may require.
Consequently, we have no choice but to meet the evidentiary difficulties inherent in enforced
disappearances with the flexibility that these difficulties demand.1avvphi1
To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we
should at least take a close look at the available evidence to determine the correct import of every piece
of evidence – even of those usually considered inadmissible under the general rules of evidence – taking
into account the surrounding circumstances and the test of reason that we can use as basic minimum
admissibility requirement. In the present case, we should at least determine whether the Kasim evidence
before us is relevant and meaningful to the disappearance of Tagistis and reasonably consistent with
other evidence in the case.
The evidence about Tagitis’ personal circumstances surrounded him with an air of mystery. He was
reputedly a consultant of the World Bank and a Senior Honorary Counselor for the IDB who attended a
seminar in Zamboanga and thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the
records indicates the purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on
informed the Jolo police that Tagitis may have taken funds given to him in trust for IDB scholars. Prof
Matli later on stated that he never accused Tagitis of taking away money held in trust, although he
confirmed that the IDB was seeking assistance in locating funds of IDB scholars deposited in Tagitis’
personal account. Other than these pieces of evidence, no other information exists in the records relating
to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances. While the Amparo petition
recited that he was taken away by "burly men believed to be police intelligence operatives," no evidence
whatsoever was introduced to support this allegation. Thus, the available direct evidence is that Tagitis
was last seen at 12.30 p.m. of October 30, 2007 – the day he arrived in Jolo – and was never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects
of the case, as it supplies the gaps that were never looked into and clarified by police investigation. It is
the evidence, too, that colors a simple missing person report into an enforced disappearance case, as it
injects the element of participation by agents of the State and thus brings into question how the State
reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the respondent, characterize
the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis could have been
taken by the Abu Sayyaf or other groups fighting the government. No evidence was ever offered on
whether there was active Jolo police investigation and how and why the Jolo police arrived at this
conclusion. The respondent’s own inquiry in Jolo yielded the answer that he was not missing but was
with another woman somewhere. Again, no evidence exists that this explanation was arrived at based on
an investigation. As already related above, the inquiry with Col. Ancanan in Zamboanga yielded
ambivalent results not useful for evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that
yielded positive results. Col. Kasim’s story, however, confirmed only the fact of his custodial investigation
(and, impliedly, his arrest or abduction), without identifying his abductor/s or the party holding him in
custody. The more significant part of Col. Kasim’s story is that the abduction came after Tagitis was seen
talking with Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Mrs.
Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the police agencies
participating in the investigation ever pursued these leads. Notably, Task Force Tagitis to which this
information was relayed did not appear to have lifted a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the petitioners. Then PNP
Chief Gen. Avelino I. Razon merely reported the directives he sent to the ARMM Regional Director and
the Regional Chief of the CIDG on Tagitis, and these reports merely reiterated the open-ended initial
report of the disappearance. The CIDG directed a search in all of its divisions with negative results. These,
to the PNP Chief, constituted the exhaustion "of all possible efforts." PNP-CIDG Chief General Edgardo M.
Doromal, for his part, also reported negative results after searching "all divisions and departments [of the
CIDG] for a person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research, records
show that no such person is being detained in the CIDG or any of its department or divisions." PNP-
PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional Director PC Superintendent Joel
R. Goltiao did no better in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA constituted Task Force
Tagitis, with specific directives on what to do. The negative results reflected in the Returns on the writ
were again replicated during the three hearings the CA scheduled. Aside from the previously mentioned
"retraction" that Prof. Matli made to correct his accusation that Tagitis took money held in trust for
students, PS Supt. Ajirim reiterated in his testimony that the CIDG consistently denied any knowledge or
complicity in any abduction and said that there was no basis to conclude that the CIDG or any police unit
had anything to do with the disappearance of Tagitis; he likewise considered it premature to conclude
that Tagitis simply ran away with the money in his custody. As already noted above, the Task Force
notably did not pursue any investigation about the personal circumstances of Tagitis, his background in
relation to the IDB and the background and activities of this Bank itself, and the reported sighting of
Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to have ever been
made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of the "assets" who are
indispensable in investigations of this nature. These omissions and negative results were aggravated by
the CA findings that it was only as late as January 28, 2008 or three months after the disappearance that
the police authorities requested for clear pictures of Tagitis. Col. Kasim could not attend the trial because
his subpoena was not served, despite the fact that he was designated as Ajirim’s replacement in the
latter’s last post. Thus, Col. Kasim was not then questioned. No investigation – even an internal one –
appeared to have been made to inquire into the identity of Col. Kasim’s "asset" and what he indeed
wrote.
We glean from all these pieces of evidence and developments a consistency in the government’s denial
of any complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim to the
respondent at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the
disclosure that Tagitis was under custodial investigation for complicity in terrorism. Another distinctive
trait that runs through these developments is the government’s dismissive approach to the
disappearance, starting from the initial response by the Jolo police to Kunnong’s initial reports of the
disappearance, to the responses made to the respondent when she herself reported and inquired about
her husband’s disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best haphazard since the authorities
were looking for a man whose picture they initially did not even secure. The returns and reports made to
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 28
the CA fared no better, as the CIDG efforts themselves were confined to searching for custodial records
of Tagitis in their various departments and divisions. To point out the obvious, if the abduction of Tagitis
was a "black" operation because it was unrecorded or officially unauthorized, no record of custody would
ever appear in the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG detention
places. In sum, none of the reports on record contains any meaningful results or details on the depth and
extent of the investigation made. To be sure, reports of top police officials indicating the personnel and
units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal
detailed investigative reports of the activities undertaken to search for Tagitis. Indisputably, the police
authorities from the very beginning failed to come up to the extraordinary diligence that the Amparo
Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasim’s disclosure, made in an unguarded moment,
unequivocally point to some government complicity in the disappearance. The consistent but unfounded
denials and the haphazard investigations cannot but point to this conclusion. For why would the
government and its officials engage in their chorus of concealment if the intent had not been to deny
what they already knew of the disappearance? Would not an in-depth and thorough investigation that at
least credibly determined the fate of Tagitis be a feather in the government’s cap under the
circumstances of the disappearance? From this perspective, the evidence and developments, particularly
the Kasim evidence, already establish a concrete case of enforced disappearance that the Amparo Rule
covers. From the prism of the UN Declaration, heretofore cited and quoted,173 the evidence at hand and
the developments in this case confirm the fact of the enforced disappearance and government
complicity, under a background of consistent and unfounded government denials and haphazard
handling. The disappearance as well effectively placed Tagitis outside the protection of the law – a
situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent in international
enforced disappearance rulings. While the facts are not exactly the same, the facts of this case run very
close to those of Timurtas v. Turkey,174 a case decided by ECHR. The European tribunal in that case acted
on the basis of the photocopy of a "post-operation report" in finding that Abdulvahap Timurtas
(Abdulvahap) was abducted and later detained by agents (gendarmes) of the government of Turkey. The
victim's father in this case brought a claim against Turkey for numerous violations of the European
Convention, including the right to life (Article 2) and the rights to liberty and security of a person (Article
5). The applicant contended that on August 14, 1993, gendarmes apprehended his son, Abdulvahap for
being a leader of the Kurdish Workers’ Party (PKK) in the Silopi region. The petition was filed in southeast
Turkey nearly six and one half years after the apprehension. According to the father, gendarmes first
detained Abdulvahap and then transferred him to another detainment facility. Although there was no
eyewitness evidence of the apprehension or subsequent detainment, the applicant presented evidence
corroborating his version of events, including a photocopy of a post-operation report signed by the
commander of gendarme operations in Silopi, Turkey. The report included a description of Abdulvahap's
arrest and the result of a subsequent interrogation during detention where he was accused of being a
leader of the PKK in the Silopi region. On this basis, Turkey was held responsible for Abdulvahap’s
enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal setting and the Amparo
remedy this Court has established, as applied to the unique facts and developments of this case – we
believe and so hold that the government in general, through the PNP and the PNP-CIDG, and in
particular, the Chiefs of these organizations together with Col. Kasim, should be held fully accountable
for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise known as the
"PNP Law,"175 specifies the PNP as the governmental office with the mandate "to investigate and prevent
crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution."
The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the "investigative
arm" of the PNP and is mandated to "investigate and prosecute all cases involving violations of the
Revised Penal Code, particularly those considered as heinous crimes."176 Under the PNP organizational
structure, the PNP-CIDG is tasked to investigate all major crimes involving violations of the Revised Penal
Code and operates against organized crime groups, unless the President assigns the case exclusively to
the National Bureau of Investigation (NBI).177 No indication exists in this case showing that the President
ever directly intervened by assigning the investigation of Tagitis’ disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in
their duties when the government completely failed to exercise the extral'>To fully enforce the Amparo
remedy, we refer this case back to the CA for appropriate proceedings directed at the monitoring of the
PNP and the PNP-CIDG investigations and actions, and the validation of their results through hearings the
CA may deem appropriate to conduct. For purposes of these investigations, the PNP/PNP-CIDG shall
initially present to the CA a plan of action for further investigation, periodically reporting the detailed
results of its investigation to the CA for its consideration and action. On behalf of this Court, the CA shall
pass upon: the need for the PNP and the PNP-CIDG to make disclosures of matters known to them as
indicated in this Decision and as further CA hearings may indicate; the petitioners’ submissions; the
sufficiency of their investigative efforts; and submit to this Court a quarterly report containing its actions
and recommendations, copy furnished the petitioners and the respondent, with the first report due at
the end of the first quarter counted from the finality of this Decision. The PNP and the PNP-CIDG shall
have one (1) full year to undertake their investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners’ petition for review on certiorari for lack of
merit, and AFFIRM the decision of the Court of Appeals dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced
disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility, declaring the
government (through the PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim
accountable for the enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief, directly
responsible for the disclosure of material facts known to the government and to their offices
regarding the disappearance of Engineer Morced N. Tagitis, and for the conduct of proper
investigations using extraordinary diligence, with the obligation to show investigation results
acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable
with the obligation to disclose information known to him and to his "assets" in relation with the
enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings directed at the
monitoring of the PNP and PNP-CIDG investigations, actions and the validation of their results;
the PNP and the PNP-CIDG shall initially present to the Court of Appeals a plan of action for
further investigation, periodically reporting their results to the Court of Appeals for
consideration and action;
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 29
 g. Requiring the Court of Appeals to submit to this Court a quarterly report with its
recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners and
the respondent, with the first report due at the end of the first quarter counted from the finality
of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigations; the
Court of Appeals shall submit its full report for the consideration of this Court at the end of the
4th quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals’ made pursuant to this Decision shall be given to, and
shall be directly enforceable against, whoever may be the incumbent Chiefs of the Philippine National
Police and its Criminal Investigation and Detection Group, under pain of contempt from this Court when
the initiatives and efforts at disclosure and investigation constitute less than the extraordinary diligence
that the Rule on the Writ of Amparo and the circumstances of this case demand. Given the unique nature
of Amparo cases and their varying attendant circumstances, these directives – particularly, the referral
back to and monitoring by the CA – are specific to this case and are not standard remedies that can be
applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding General,
Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is
hereby AFFIRMED.
SO ORDERED.

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 30

G.R. No. 189155               September 7, 2010
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF HABEAS DATA IN
FAVOR OF MELISSA C. ROXAS, MELISSA C. ROXAS, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN. VICTOR S. IBRADO, P/DIR. GEN. JESUS AME
VERZOSA, LT. GEN. DELFIN N. BANGIT, PC/SUPT. LEON NILO A. DELA CRUZ, MAJ. GEN. RALPH
VILLANUEVA, PS/SUPT. RUDY GAMIDO LACADIN, AND CERTAIN PERSONS WHO GO BY THE NAME[S]
DEX, RC AND ROSE, Respondents.
DECISION
PEREZ, J.:
At bench is a Petition For Review on Certiorari1 assailing the Decision2 dated 26 August 2009 of the Court
of Appeals in CA-G.R. SP No. 00036-WRA — a petition that was commenced jointly under the Rules on
the Writ of Amparo (Amparo Rule) and Habeas Data (Habeas Data Rule). In its decision, the Court of
Appeals extended to the petitioner, Melissa C. Roxas, the privilege of the writs of amparo and habeas
data but denied the latter’s prayers for an inspection order, production order and return of specified
personal belongings. The fallo of the decision reads:
WHEREFORE, the Petition is PARTIALLY MERITORIOUS. This Court hereby grants Petitioner the privilege
of the Writ of Amparo and Habeas Data.
Accordingly, Respondents are enjoined to refrain from distributing or causing the distribution to the
public of any records in whatever form, reports, documents or similar papers relative to Petitioner’s
Melissa C. Roxas, and/or Melissa Roxas; alleged ties to the CPP-NPA or pertinently related to the
complained incident. Petitioner’s prayers for an inspection order, production order and for the return of
the specified personal belongings are denied for lack of merit. Although there is no evidence that
Respondents are responsible for the abduction, detention or torture of the Petitioner, said Respondents
pursuant to their legally mandated duties are, nonetheless, ordered to continue/complete the
investigation of this incident with the end in view of prosecuting those who are responsible. Respondents
are also ordered to provide protection to the Petitioner and her family while in the Philippines against
any and all forms of harassment, intimidation and coercion as may be relevant to the grant of these
reliefs.3
We begin with the petitioner’s allegations.
Petitioner is an American citizen of Filipino descent.4 While in the United States, petitioner enrolled in an
exposure program to the Philippines with the group Bagong Alyansang Makabayan-United States of
America (BAYAN-USA) of which she is a member.5 During the course of her immersion, petitioner toured
various provinces and towns of Central Luzon and, in April of 2009, she volunteered to join members
of BAYAN-Tarlac6 in conducting an initial health survey in La Paz, Tarlac for a future medical mission.7
In pursuit of her volunteer work, petitioner brought her passport, wallet with Fifteen Thousand Pesos
(₱15,000.00) in cash, journal, digital camera with memory card, laptop computer, external hard
disk, IPOD,8 wristwatch, sphygmomanometer, stethoscope and medicines.9
After doing survey work on 19 May 2009, petitioner and her companions, Juanito Carabeo (Carabeo) and
John Edward Jandoc (Jandoc), decided to rest in the house of one Mr. Jesus Paolo (Mr. Paolo)
in Sitio Bagong  Sikat, Barangay Kapanikian, La Paz, Tarlac.10 At around 1:30 in the afternoon, however,
petitioner, her companions and Mr. Paolo were startled by the loud sounds of someone banging at the
front door and a voice demanding that they open up.11
Suddenly, fifteen (15) heavily armed men forcibly opened the door, barged inside and ordered petitioner
and her companions to lie on the ground face down.12 The armed men were all in civilian clothes and,
with the exception of their leader, were also wearing bonnets to conceal their faces.13
Petitioner tried to protest the intrusion, but five (5) of the armed men ganged up on her and tied her
hands.14 At this juncture, petitioner saw the other armed men herding Carabeo and Jandoc, already
blindfolded and taped at their mouths, to a nearby blue van. Petitioner started to shout her
name.15 Against her vigorous resistance, the armed men dragged petitioner towards the van—bruising
her arms, legs and knees.16 Once inside the van, but before she can be blindfolded, petitioner was able to
see the face of one of the armed men sitting beside her.17 The van then sped away.
After about an hour of traveling, the van stopped.18 Petitioner, Carabeo and Jandoc were ordered to
alight.19 After she was informed that she is being detained for being a member of the Communist Party of
the Philippines-New People’s Army (CPP-NPA), petitioner was separated from her companions and was
escorted to a room that she believed was a jail cell from the sound of its metal doors.20 From there, she
could hear the sounds of gunfire, the noise of planes taking off and landing and some construction
bustle.21 She inferred that she was taken to the military camp of Fort Magsaysay in Laur, Nueva Ecija.22
What followed was five (5) straight days of interrogation coupled with torture.23 The thrust of the
interrogations was to convince petitioner to abandon her communist beliefs in favor of returning to "the
fold."24 The torture, on the other hand, consisted of taunting, choking, boxing and suffocating the
petitioner.25
Throughout the entirety of her ordeal, petitioner was made to suffer in blindfolds even in her
sleep.26 Petitioner was only relieved of her blindfolds when she was allowed to take a bath, during which
she became acquainted with a woman named "Rose" who bathed her.27 There were also a few times
when she cheated her blindfold and was able to peek at her surroundings.28
Despite being deprived of sight, however, petitioner was still able to learn the names of three of her
interrogators who introduced themselves to her as "Dex," "James" and "RC."29 "RC" even told petitioner
that those who tortured her came from the "Special Operations Group," and that she was abducted
because her name is included in the "Order of Battle."30
On 25 May 2009, petitioner was finally released and returned to her uncle’s house in Quezon
City.31 Before being released, however, the abductors gave petitioner a cellular phone with a SIM32 card,
a slip of paper containing an e-mail address with password,33 a plastic bag containing biscuits and
books,34 the handcuffs used on her, a blouse and a pair of shoes.35 Petitioner was also sternly warned not
to report the incident to the group Karapatan or something untoward will happen to her and her family.36
Sometime after her release, petitioner continued to receive calls from RC via the cellular phone given to
her.37 Out of apprehension that she was being monitored and also fearing for the safety of her family,
petitioner threw away the cellular phone with a SIM card.
Seeking sanctuary against the threat of future harm as well as the suppression of any existing
government files or records linking her to the communist movement, petitioner filed a Petition for the
Writs of Amparo and Habeas Data before this Court on 1 June 2009.38 Petitioner impleaded public
officials occupying the uppermost echelons of the military and police hierarchy as respondents, on the
belief that it was government agents who were behind her abduction and torture. Petitioner likewise
included in her suit "Rose," "Dex" and "RC."39
The Amparo and Habeas Data petition prays that: (1) respondents be enjoined from harming or even
approaching petitioner and her family; (2) an order be issued allowing the inspection of detention areas
in the 7th Infantry Division, Fort Magsaysay, Laur, Nueva Ecija; (3) respondents be ordered to produce
documents relating to any report on the case of petitioner including, but not limited to, intelligence
report and operation reports of the 7th Infantry Division, the Special Operations Group of the Armed
Forces of the Philippines (AFP) and its subsidiaries or branch/es prior to, during and subsequent to 19
May 2009; (4) respondents be ordered to expunge from the records of the respondents any document
pertinent or connected to Melissa C. Roxas, Melissa Roxas or any name which sounds the same; and (5)
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 31
respondents be ordered to return to petitioner her journal, digital camera with memory card, laptop
computer, external hard disk, IPOD, wristwatch, sphygmomanometer, stethoscope, medicines and her
₱15,000.00 cash.40
In a Resolution dated 9 June 2009, this Court issued the desired writs and referred the case to the Court
of Appeals for hearing, reception of evidence and appropriate action.41 The Resolution also directed the
respondents to file their verified written return.42
On 18 June 2009, the Office of the Solicitor General (OSG), filed a Return of the Writs43 on behalf of the
public officials impleaded as respondents.
We now turn to the defenses interposed by the public respondents.
The public respondents label petitioner’s alleged abduction and torture as "stage managed."44 In support
of their accusation, the public respondents principally rely on the statement of Mr. Paolo, as contained in
the Special Report45 of the La Paz Police Station. In the Special Report, Mr. Paolo disclosed that, prior to
the purported abduction, petitioner and her companions instructed him and his two sons to avoid
leaving the house.46 From this statement, the public respondents drew the distinct possibility that, except
for those already inside Mr. Paolo’s house, nobody else has any way of knowing where petitioner and her
companions were at the time they were supposedly abducted.47 This can only mean, the public
respondents concluded, that if ever there was any "abduction" it must necessarily have been planned by,
or done with the consent of, the petitioner and her companions themselves.48
Public respondents also cited the Medical Certificate49 of the petitioner, as actually belying her claims
that she was subjected to serious torture for five (5) days. The public respondents noted that while the
petitioner alleges that she was choked and boxed by her abductors—inflictions that could have easily
produced remarkable bruises—her Medical Certificate only shows abrasions in her wrists and knee
caps.50
For the public respondents, the above anomalies put in question the very authenticity of petitioner’s
alleged abduction and torture, more so any military or police involvement therein. Hence, public
respondents conclude that the claims of abduction and torture was no more than a charade fabricated
by the petitioner to put the government in bad light, and at the same time, bring great media mileage to
her and the group that she represents.51
Nevertheless, even assuming the abduction and torture to be genuine, the public respondents insist on
the dismissal of the Amparo and Habeas Data petition based on the following grounds: (a) as against
respondent President Gloria Macapagal-Arroyo, in particular, because of her immunity from suit,52 and
(b) as against all of the public respondents, in general, in view of the absence of any specific allegation in
the petition that they had participated in, or at least authorized, the commission of such atrocities.53
Finally, the public respondents posit that they had not been remiss in their duty to ascertain the truth
behind the allegations of the petitioner.54 In both the police and military arms of the government
machinery, inquiries were set-up in the following manner:
Police Action
Police authorities first learned of the purported abduction around 4:30 o’clock in the afternoon of 19
May 2009, when Barangay Captain Michael M. Manuel came to the La Paz Municipal Police Station to
report the presence of heavily armed men somewhere in Barangay  Kapanikian.55 Acting on the report,
the police station launched an initial investigation.56
The initial investigation revolved around the statement of Mr. Paolo, who informed the investigators of
an abduction incident involving three (3) persons—later identified as petitioner Melissa Roxas, Juanito
Carabeo and John Edward Jandoc—who were all staying in his house.57 Mr. Paolo disclosed that the
abduction occurred around 1:30 o’clock in the afternoon, and was perpetrated by about eight (8) heavily
armed men who forced their way inside his house.58 Other witnesses to the abduction also confirmed
that the armed men used a dark blue van with an unknown plate number and two (2) Honda XRM
motorcycles with no plate numbers.59
At 5:00 o’clock in the afternoon of 19 May 2009, the investigators sent a Flash Message to the different
police stations surrounding La Paz, Tarlac, in an effort to track and locate the van and motorcycles of the
suspects. Unfortunately, the effort yielded negative results.60
On 20 May 2009, the results of the initial investigation were included in a Special Report61 that was
transmitted to the Tarlac Police Provincial Office, headed by public respondent P/S Supt. Rudy Lacadin
(Supt. Lacadin). Public respondent Supt. Lacadin, in turn, informed the Regional Police Office of Region 3
about the abduction.62 Follow-up investigations were, at the same time, pursued.63
On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz, as Director of the Regional Police
Office for Region 3, caused the creation of Special Investigation Task Group—CAROJAN (Task Group
CAROJAN) to conduct an in-depth investigation on the abduction of the petitioner, Carabeo and Jandoc.64
Task Group CAROJAN started its inquiry by making a series of background examinations on the victims of
the purported abduction, in order to reveal the motive behind the abduction and, ultimately, the identity
of the perpetrators.65 Task Group CAROJAN also maintained liaisons with Karapatan and the Alliance for
Advancement of People’s Rights—organizations trusted by petitioner—in the hopes of obtaining the
latter’s participation in the ongoing investigations.66 Unfortunately, the letters sent by the investigators
requesting for the availability of the petitioner for inquiries were left unheeded.67
The progress of the investigations conducted by Task Group CAROJAN had been detailed in the
reports68 that it submitted to public respondent General Jesus Ame Verzosa, the Chief of the Philippine
National Police. However, as of their latest report dated 29 June 2009, Task Group CAROJAN is still
unable to make a definitive finding as to the true identity and affiliation of the abductors—a fact that
task group CAROJAN attributes to the refusal of the petitioner, or any of her fellow victims, to cooperate
in their investigative efforts.69
Military Action
Public respondent Gilbert Teodoro, the Secretary of National Defense, first came to know about the
alleged abduction and torture of the petitioner upon receipt of the Resolution of this Court directing him
and the other respondents to file their return.70 Immediately thereafter, he issued a Memorandum
Directive71 addressed to the Chief of Staff of the AFP, ordering the latter, among others, to conduct an
inquiry to determine the validity of the accusation of military involvement in the abduction.72
Acting pursuant to the Memorandum Directive, public respondent General Victor S. Ibrado, the AFP Chief
of Staff, sent an AFP Radio Message73 addressed to public respondent Lieutenant General Delfin N. Bangit
(Lt. Gen. Bangit), the Commanding General of the Army, relaying the order to cause an investigation on
the abduction of the petitioner.74
For his part, and taking cue from the allegations in the amparo petition, public respondent Lt. Gen. Bangit
instructed public respondent Major General Ralph A. Villanueva (Maj. Gen. Villanueva), the Commander
of the 7th Infantry Division of the Army based in Fort Magsaysay, to set in motion an investigation
regarding the possible involvement of any personnel assigned at the camp in the purported abduction of
the petitioner.75 In turn, public respondent Maj. Gen. Villanueva tapped the Office of the Provost Marshal
(OPV) of the 7th Infantry Division, to conduct the investigation.76
On 23 June 2009, the OPV of the 7th Infantry Division released an Investigation Report77 detailing the
results of its inquiry. In substance, the report described petitioner’s allegations as "opinionated" and
thereby cleared the military from any involvement in her alleged abduction and torture.78
The Decision of the Court of Appeals
In its Decision,79 the Court of Appeals gave due weight and consideration to the petitioner’s version that
she was indeed abducted and then subjected to torture for five (5) straight days. The appellate court
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 32
noted the sincerity and resolve by which the petitioner affirmed the contents of her affidavits in open
court, and was thereby convinced that the latter was telling the truth.80
On the other hand, the Court of Appeals disregarded the argument of the public respondents that the
abduction of the petitioner was "stage managed," as it is merely based on an unfounded speculation that
only the latter and her companions knew where they were staying at the time they were forcibly
taken.81 The Court of Appeals further stressed that the Medical Certificate of the petitioner can only
affirm the existence of a true abduction, as its findings are reflective of the very injuries the latter claims
to have sustained during her harrowing ordeal, particularly when she was handcuffed and then dragged
by her abductors onto their van.82
The Court of Appeals also recognized the existence of an ongoing threat against the security of the
petitioner, as manifested in the attempts of "RC" to contact and monitor her, even after she was
released.83 This threat, according to the Court of Appeals, is all the more compounded by the failure of
the police authorities to identify the material perpetrators who are still at large.84 Thus, the appellate
court extended to the petitioner the privilege of the writ of amparo by directing the public respondents
to afford protection to the former, as well as continuing, under the norm of extraordinary diligence, their
existing investigations involving the abduction.85
The Court of Appeals likewise observed a transgression of the right to informational privacy of the
petitioner, noting the existence of "records of investigations" that concerns the petitioner as a suspected
member of the CPP-NPA.86 The appellate court derived the existence of such records from a photograph
and video file presented in a press conference by party-list representatives Jovito Palparan (Palparan)
and Pastor Alcover (Alcover), which allegedly show the petitioner participating in rebel exercises.
Representative Alcover also revealed that the photograph and video came from a female CPP-NPA
member who wanted out of the organization. According to the Court of Appeals, the proliferation of the
photograph and video, as well as any form of media, insinuating that petitioner is part of the CPP-NPA
does not only constitute a violation of the right to privacy of the petitioner but also puts further strain on
her already volatile security.87 To this end, the appellate court granted the privilege of the writ of habeas
data mandating the public respondents to refrain from distributing to the public any records, in whatever
form, relative to petitioner’s alleged ties with the CPP-NPA or pertinently related to her abduction and
torture.88
The foregoing notwithstanding, however, the Court of Appeals was not convinced that the military or any
other person acting under the acquiescence of the government, were responsible for the abduction and
torture of the petitioner.89 The appellate court stressed that, judging by her own statements, the
petitioner merely "believed" that the military was behind her abduction.90 Thus, the Court of Appeals
absolved the public respondents from any complicity in the abduction and torture of petitioner.91 The
petition was likewise dismissed as against public respondent President Gloria Macapagal-Arroyo, in view
of her immunity from suit.92
Accordingly, the petitioner’s prayers for the return of her personal belongings were denied.93 Petitioner’s
prayers for an inspection order and production order also met the same fate.94
Hence, this appeal by the petitioner.
AMPARO
A.
Petitioner first contends that the Court of Appeals erred in absolving the public respondents from any
responsibility in her abduction and torture.95 Corollary to this, petitioner also finds fault on the part of
Court of Appeals in denying her prayer for the return of her personal belongings.96
Petitioner insists that the manner by which her abduction and torture was carried out, as well as the
sounds of construction, gun-fire and airplanes that she heard while in detention, as these were detailed
in her two affidavits and affirmed by her in open court, are already sufficient evidence to prove
government involvement.97
Proceeding from such assumption, petitioner invokes the doctrine of command responsibility to
implicate the high-ranking civilian and military authorities she impleaded as respondents in her amparo
petition.98 Thus, petitioner seeks from this Court a pronouncement holding the respondents as complicit
in her abduction and torture, as well as liable for the return of her belongings.99
Command Responsibility in Amparo Proceedings
It must be stated at the outset that the use by the petitioner of the doctrine of command responsibility
as the justification in impleading the public respondents in her amparo petition, is legally inaccurate, if
not incorrect. The doctrine of command responsibility is a rule of substantive law that establishes liability
and, by this account, cannot be a proper legal basis to implead a party-respondent in an amparo
petition.100
The case of Rubrico v. Arroyo,101 which was the first to examine command responsibility in the context of
an amparo proceeding, observed that the doctrine is used to pinpoint liability. Rubrico notes that:102
The evolution of the command responsibility doctrine finds its context in the development of laws of war
and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the
"responsibility of commanders for crimes committed by subordinate members of the armed forces or
other persons subject to their control in international wars or domestic conflict."103 In this sense,
command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907
adopted the doctrine of command responsibility,104 foreshadowing the present-day precept of holding a
superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of
control over them. As then formulated, command responsibility is "an omission mode of individual
criminal liability," whereby the superior is made responsible for crimes committed by his subordinates
for failing to prevent or punish the perpetrators105 (as opposed to crimes he ordered). (Emphasis in the
orginal, underscoring supplied)
Since the application of command responsibility presupposes an imputation of individual liability, it is
more aptly invoked in a full-blown criminal or administrative case rather than in a summary amparo
proceeding. The obvious reason lies in the nature of the writ itself:
The writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate
remedial measures and directives that may be crafted by the court, in order to address specific violations
or threats of violation of the constitutional rights to life, liberty or security.106 While the principal
objective of its proceedings is the initial determination of whether an enforced disappearance, extralegal
killing or threats thereof had transpired—the writ does not, by so doing, fix liability for such
disappearance, killing or threats, whether that may be criminal, civil or administrative under the
applicable substantive law.107 The rationale underpinning this peculiar nature of an amparo writ has
been, in turn, clearly set forth in the landmark case of The Secretary of National Defense v. Manalo:108
x x x The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring substantial evidence that will
require full and exhaustive proceedings.109(Emphasis supplied)
It must be clarified, however, that the inapplicability of the doctrine of command responsibility in an
amparo proceeding does not, by any measure, preclude impleading military or police commanders on
the ground that the complained acts in the petition were committed with their direct or indirect
acquiescence. In which case, commanders may be impleaded—not actually on the basis of command
responsibility—but rather on the ground of their responsibility, or at least accountability. In Razon v.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 33
Tagitis,110 the distinct, but interrelated concepts of responsibility and accountability were given special
and unique significations in relation to an amparo proceeding, to wit:
x x x Responsibility refers to the extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility defined above;
or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance.
Responsibility of Public Respondents
At any rate, it is clear from the records of the case that the intent of the petitioner in impleading the
public respondents is to ascribe some form of responsibility on their part, based on her assumption that
they, in one way or the other, had condoned her abduction and torture.111
To establish such assumption, petitioner attempted to show that it was government agents who were
behind her ordeal. Thus, the petitioner calls attention to the circumstances surrounding her abduction
and torture—i.e., the forcible taking in broad daylight; use of vehicles with no license plates; utilization of
blindfolds; conducting interrogations to elicit communist inclinations; and the infliction of physical abuse
—which, according to her, is consistent with the way enforced disappearances are being practiced by the
military or other state forces.112
Moreover, petitioner also claims that she was held inside the military camp Fort Magsaysay—a
conclusion that she was able to infer from the travel time required to reach the place where she was
actually detained, and also from the sounds of construction, gun-fire and airplanes she heard while
thereat.113
We are not impressed. The totality of the evidence presented by the petitioner does not inspire
reasonable conclusion that her abductors were military or police personnel and that she was detained at
Fort Magsaysay.
First. The similarity between the circumstances attending a particular case of abduction with those
surrounding previous instances of enforced disappearances does not, necessarily, carry sufficient weight
to prove that the government orchestrated such abduction. We opine that insofar as the present case is
concerned, the perceived similarity cannot stand as substantial evidence of the involvement of the
government.
In amparo proceedings, the weight that may be accorded to parallel circumstances as evidence of
military involvement depends largely on the availability or non-availability of other pieces of evidence
that has the potential of directly proving the identity and affiliation of the perpetrators. Direct evidence
of identity, when obtainable, must be preferred over mere circumstantial evidence based on patterns
and similarity, because the former indubitably offers greater certainty as to the true identity and
affiliation of the perpetrators. An amparo court cannot simply leave to remote and hazy inference what it
could otherwise clearly and directly ascertain.
In the case at bench, petitioner was, in fact, able to include in her Offer of Exhibits,114 the cartographic
sketches115 of several of her abductors whose faces she managed to see. To the mind of this Court, these
cartographic sketches have the undeniable potential of giving the greatest certainty as to the true
identity and affiliation of petitioner’s abductors. Unfortunately for the petitioner, this potential has not
been realized in view of the fact that the faces described in such sketches remain unidentified, much less
have been shown to be that of any military or police personnel. Bluntly stated, the abductors were not
proven to be part of either the military or the police chain of command.
Second. The claim of the petitioner that she was taken to Fort Magsaysay was not adequately established
by her mere estimate of the time it took to reach the place where she was detained and by the sounds
that she heard while thereat. Like the Court of Appeals, We are not inclined to take the estimate and
observations of the petitioner as accurate on its face—not only because they were made mostly while
she was in blindfolds, but also in view of the fact that she was a mere sojourner in the Philippines, whose
familiarity with Fort Magsaysay and the travel time required to reach it is in itself doubtful.116 With
nothing else but obscure observations to support it, petitioner’s claim that she was taken to Fort
Magsaysay remains a mere speculation.
In sum, the petitioner was not able to establish to a concrete point that her abductors were actually
affiliated, whether formally or informally, with the military or the police organizations. Neither does the
evidence at hand prove that petitioner was indeed taken to the military camp Fort Magsaysay to the
exclusion of other places. These evidentiary gaps, in turn, make it virtually impossible to determine
whether the abduction and torture of the petitioner was in fact committed with the acquiescence of the
public respondents. On account of this insufficiency in evidence, a pronouncement of responsibility on
the part of the public respondents, therefore, cannot be made.
Prayer for the Return of Personal Belongings
This brings Us to the prayer of the petitioner for the return of her personal belongings.
In its decision, the Court of Appeals denied the above prayer of the petitioner by reason of the failure of
the latter to prove that the public respondents were involved in her abduction and torture.117 We agree
with the conclusion of the Court of Appeals, but not entirely with the reason used to support it. To the
mind of this Court, the prayer of the petitioner for the return of her belongings is doomed to fail
regardless of whether there is sufficient evidence to hold public respondents responsible for the
abduction of the petitioner.
In the first place, an order directing the public respondents to return the personal belongings of the
petitioner is already equivalent to a conclusive pronouncement of liability. The order itself is a substantial
relief that can only be granted once the liability of the public respondents has been fixed in a full and
exhaustive proceeding. As already discussed above, matters of liability are not determinable in a mere
summary amparo proceeding.118
But perhaps the more fundamental reason in denying the prayer of the petitioner, lies with the fact that
a person’s right to be restituted of his property is already subsumed under the general rubric of property
rights—which are no longer protected by the writ of amparo.119 Section 1 of the Amparo Rule,120 which
defines the scope and extent of the writ, clearly excludes the protection of property rights.
B.
The next error raised by the petitioner is the denial by the Court of Appeals of her prayer for an
inspection of the detention areas of Fort Magsaysay.121
Considering the dearth of evidence concretely pointing to any military involvement in petitioner’s ordeal,
this Court finds no error on the part of the Court of Appeals in denying an inspection of the military camp
at Fort Magsaysay. We agree with the appellate court that a contrary stance would be equivalent to
sanctioning a "fishing expedition," which was never intended by the Amparo Rule in providing for the
interim relief of inspection order.122 Contrary to the explicit position123 espoused by the petitioner, the
Amparo Rule does not allow a "fishing expedition" for evidence.
An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in
an amparo petition, in order to aid the court before making a decision.124 A basic requirement before an
amparo court may grant an inspection order is that the place to be inspected is reasonably determinable
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 34
from the allegations of the party seeking the order. While the Amparo Rule does not require that the
place to be inspected be identified with clarity and precision, it is, nevertheless, a minimum for the
issuance of an inspection order that the supporting allegations of a party be sufficient in itself, so as to
make a prima facie case. This, as was shown above, petitioner failed to do.
Since the very estimates and observations of the petitioner are not strong enough to make out a prima
facie case that she was detained in Fort Magsaysay, an inspection of the military camp cannot be
ordered. An inspection order cannot issue on the basis of allegations that are, in themselves, unreliable
and doubtful.
HABEAS DATA
As earlier intimated, the Court of Appeals granted to the petitioner the privilege of the writ of habeas
data, by enjoining the public respondents from "distributing or causing the distribution to the public any
records in whatever form, reports, documents or similar papers" relative to the petitioner’s "alleged ties
with the CPP-NPA or pertinently related to her abduction and torture." Though not raised as an issue in
this appeal, this Court is constrained to pass upon and review this particular ruling of the Court of
Appeals in order to rectify, what appears to Us, an error infecting the grant.
For the proper appreciation of the rationale used by the Court of Appeals in granting the privilege of the
writ of habeas data, We quote hereunder the relevant portion125 of its decision:
Under these premises, Petitioner prayed that all the records, intelligence reports and reports on the
investigations conducted on Melissa C. Roxas or Melissa Roxas be produced and eventually expunged
from the records. Petitioner claimed to be included in the Government’s Order of Battle under Oplan
Bantay Laya which listed political opponents against whom false criminal charges were filed based on
made up and perjured information.
Pending resolution of this petition and before Petitioner could testify before Us, Ex-army general Jovito
Palaparan, Bantay party-list, and Pastor Alcover of the Alliance for Nationalism and Democracy party-list
held a press conference where they revealed that they received an information from a female NPA rebel
who wanted out of the organization, that Petitioner was a communist rebel. Alcover claimed that said
information reached them thru a letter with photo of Petitioner holding firearms at an NPA training camp
and a video CD of the training exercises.
Clearly, and notwithstanding Petitioner’s denial that she was the person in said video, there were records
of other investigations on Melissa C. Roxas or Melissa Roxas which violate her right to privacy. Without a
doubt, reports of such nature have reasonable connections, one way or another, to petitioner’s
abduction where she claimed she had been subjected to cruelties and dehumanizing acts which nearly
caused her life precisely due to allegation of her alleged membership in the CPP-NPA. And if said report
or similar reports are to be continuously made available to the public, Petitioner’s security and privacy
will certainly be in danger of being violated or transgressed by persons who have strong sentiments or
aversion against members of this group. The unregulated dissemination of said unverified video CD or
reports of Petitioner’s alleged ties with the CPP-NPA indiscriminately made available for public
consumption without evidence of its authenticity or veracity certainly violates Petitioner’s right to
privacy which must be protected by this Court. We, thus, deem it necessary to grant Petitioner the
privilege of the Writ of Habeas Data. (Emphasis supplied).
The writ of habeas data was conceptualized as a judicial remedy enforcing the right to privacy, most
especially the right to informational privacy of individuals.126 The writ operates to protect a person’s right
to control information regarding himself, particularly in the instances where such information is being
collected through unlawful means in order to achieve unlawful ends.
Needless to state, an indispensable requirement before the privilege of the writ may be extended is the
showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in
life, liberty or security of the victim.127 This, in the case at bench, the petitioner failed to do.
The main problem behind the ruling of the Court of Appeals is that there is actually no evidence on
record that shows that any of the public respondents had violated or threatened the right to privacy of
the petitioner. The act ascribed by the Court of Appeals to the public respondents that would have
violated or threatened the right to privacy of the petitioner, i.e., keeping records of investigations and
other reports about the petitioner’s ties with the CPP-NPA, was not adequately proven—considering that
the origin of such records were virtually unexplained and its existence, clearly, only inferred by the
appellate court from the video and photograph released by Representatives Palparan and Alcover in their
press conference. No evidence on record even shows that any of the public respondents had access to
such video or photograph.
In view of the above considerations, the directive by the Court of Appeals enjoining the public
respondents from "distributing or causing the distribution to the public any records in whatever form,
reports, documents or similar papers" relative to the petitioner’s "alleged ties with the CPP-NPA,"
appears to be devoid of any legal basis. The public respondents cannot be ordered to refrain from
distributing something that, in the first place, it was not proven to have.
Verily, until such time that any of the public respondents were found to be actually responsible for the
abduction and torture of the petitioner, any inference regarding the existence of reports being kept in
violation of the petitioner’s right to privacy becomes farfetched, and premature.
For these reasons, this Court must, at least in the meantime, strike down the grant of the privilege of the
writ of habeas data.
DISPOSITION OF THE CASE
Our review of the evidence of the petitioner, while telling of its innate insufficiency to impute any form of
responsibility on the part of the public respondents, revealed two important things that can guide Us to a
proper disposition of this case. One, that further investigation with the use of extraordinary diligence
must be made in order to identify the perpetrators behind the abduction and torture of the petitioner;
and two, that the Commission on Human Rights (CHR), pursuant to its Constitutional mandate to
"investigate all forms of human rights violations involving civil and political rights and to provide
appropriate legal measures for the protection of human rights,"128 must be tapped in order to fill certain
investigative and remedial voids.
Further Investigation Must Be Undertaken
Ironic as it seems, but part and parcel of the reason why the petitioner was not able to adduce
substantial evidence proving her allegations of government complicity in her abduction and torture, may
be attributed to the incomplete and one-sided investigations conducted by the government itself. This
"awkward" situation, wherein the very persons alleged to be involved in an enforced disappearance or
extralegal killing are, at the same time, the very ones tasked by law to investigate the matter, is a unique
characteristic of these proceedings and is the main source of the "evidentiary difficulties" faced by any
petitioner in any amparo case.129
Cognizant of this situation, however, the Amparo Rule placed a potent safeguard—requiring the
"respondent who is a public official or employee" to prove that no less than "extraordinary diligence as
required by applicable laws, rules and regulations was observed in the performance of duty."130 Thus,
unless and until any of the public respondents is able to show to the satisfaction of the amparo court that
extraordinary diligence has been observed in their investigations, they cannot shed the allegations of
responsibility despite the prevailing scarcity of evidence to that effect.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 35
With this in mind, We note that extraordinary diligence, as required by the Amparo Rule, was not fully
observed in the conduct of the police and military investigations in the case at bar.
A perusal of the investigation reports submitted by Task Group CAROJAN shows modest effort on the
part of the police investigators to identify the perpetrators of the abduction. To be sure, said reports are
replete with background checks on the victims of the abduction, but are, at the same time, comparatively
silent as to other concrete steps the investigators have been taking to ascertain the authors of the crime.
Although conducting a background investigation on the victims is a logical first step in exposing the
motive behind the abduction—its necessity is clearly outweighed by the need to identify the
perpetrators, especially in light of the fact that the petitioner, who was no longer in captivity, already
came up with allegations about the motive of her captors.
Instead, Task Group CAROJAN placed the fate of their investigations solely on the cooperation or non-
cooperation of the petitioner—who, they claim, was less than enthusiastic in participating in their
investigative efforts.131 While it may be conceded that the participation of the petitioner would have
facilitated the progress of Task Group CAROJAN’s investigation, this Court believes that the former’s
reticence to cooperate is hardly an excuse for Task Group CAROJAN not to explore other means or
avenues from which they could obtain relevant leads.132 Indeed, while the allegations of government
complicity by the petitioner cannot, by themselves, hold up as adequate evidence before a court of law—
they are, nonetheless, a vital source of valuable investigative leads that must be pursued and verified, if
only to comply with the high standard of diligence required by the Amparo Rule in the conduct of
investigations.
Assuming the non-cooperation of the petitioner, Task Group CAROJAN’s reports still failed to explain why
it never considered seeking the assistance of Mr. Jesus Paolo—who, along with the victims, is a central
witness to the abduction. The reports of Task Group CAROJAN is silent in any attempt to obtain from Mr.
Paolo, a cartographic sketch of the abductors or, at the very least, of the one who, by petitioner’s
account, was not wearing any mask.1avvphi1
The recollection of Mr. Paolo could have served as a comparative material to the sketches included in
petitioner’s offer of exhibits that, it may be pointed out, were prepared under the direction of, and first
submitted to, the CHR pursuant to the latter’s independent investigation on the abduction and torture of
the petitioner.133 But as mentioned earlier, the CHR sketches remain to be unidentified as of this date.
In light of these considerations, We agree with the Court of Appeals that further investigation under the
norm of extraordinary diligence should be undertaken. This Court simply cannot write finis to this case,
on the basis of an incomplete investigation conducted by the police and the military. In a very real sense,
the right to security of the petitioner is continuously put in jeopardy because of the deficient
investigation that directly contributes to the delay in bringing the real perpetrators before the bar of
justice.
To add teeth to the appellate court’s directive, however, We find it fitting, nay, necessary to shift the
primary task of conducting further investigations on the abduction and torture of the petitioner upon the
CHR.134 We note that the CHR, unlike the police or the military, seems to enjoy the trust and confidence
of the petitioner—as evidenced by her attendance and participation in the hearings already conducted
by the commission.135 Certainly, it would be reasonable to assume from such cooperation that the
investigations of the CHR have advanced, or at the very least, bears the most promise of advancing
farther, in terms of locating the perpetrators of the abduction, and is thus, vital for a final resolution of
this petition. From this perspective, We also deem it just and appropriate to relegate the task of affording
interim protection to the petitioner, also to the CHR.
Hence, We modify the directive of the Court of the Appeals for further investigation, as follows—
1.) Appointing the CHR as the lead agency tasked with conducting further investigation
regarding the abduction and torture of the petitioner. Accordingly, the CHR shall, under the
norm of extraordinary diligence, take or continue to take the necessary steps: (a) to identify the
persons described in the cartographic sketches submitted by the petitioner, as well as their
whereabouts; and (b) to pursue any other leads relevant to petitioner’s abduction and torture.
2.) Directing the incumbent Chief of the Philippine National Police (PNP), or his successor, and
the incumbent Chief of Staff of the AFP, or his successor, to extend assistance to the ongoing
investigation of the CHR, including but not limited to furnishing the latter a copy of its personnel
records circa the time of the petitioner’s abduction and torture, subject to reasonable
regulations consistent with the Constitution and existing laws.
3.) Further directing the incumbent Chief of the PNP, or his successor, to furnish to this Court,
the Court of Appeals, and the petitioner or her representative, a copy of the reports of its
investigations and their recommendations, other than those that are already part of the records
of this case, within ninety (90) days from receipt of this decision.
4.) Further directing the CHR to (a) furnish to the Court of Appeals within ninety (90) days from
receipt of this decision, a copy of the reports on its investigation and its corresponding
recommendations; and to (b) provide or continue to provide protection to the petitioner during
her stay or visit to the Philippines, until such time as may hereinafter be determined by this
Court.
Accordingly, this case must be referred back to the Court of Appeals, for the purposes of monitoring
compliance with the above directives and determining whether, in light of any recent reports or
recommendations, there would already be sufficient evidence to hold any of the public respondents
responsible or, at least, accountable. After making such determination, the Court of Appeals shall submit
its own report with recommendation to this Court for final action. The Court of Appeals will continue to
have jurisdiction over this case in order to accomplish its tasks under this decision.
WHEREFORE, the instant petition is PARTIALLY MERITORIOUS. We hereby render a decision:
1.) AFFIRMING the denial of the petitioner’s prayer for the return of her personal belongings;
2.) AFFIRMING the denial of the petitioner’s prayer for an inspection of the detention areas of
Fort Magsaysay.
3.) REVERSING the grant of the privilege of habeas data, without prejudice, however, to any
modification that this Court may make on the basis of the investigation reports and
recommendations submitted to it under this decision.
4.) MODIFYING the directive that further investigation must be undertaken, as follows—
a. APPOINTING the Commission on Human Rights as the lead agency tasked with
conducting further investigation regarding the abduction and torture of the petitioner.
Accordingly, the Commission on Human Rights shall, under the norm of extraordinary
diligence, take or continue to take the necessary steps: (a) to identify the persons
described in the cartographic sketches submitted by the petitioner, as well as their
whereabouts; and (b) to pursue any other leads relevant to petitioner’s abduction and
torture.
b. DIRECTING the incumbent Chief of the Philippine National Police, or his successor,
and the incumbent Chief of Staff of the Armed Forces of the Philippines, or his
successor, to extend assistance to the ongoing investigation of the Commission on
Human Rights, including but not limited to furnishing the latter a copy of its personnel
records circa the time of the petitioner’s abduction and torture, subject to reasonable
regulations consistent with the Constitution and existing laws.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 36
 c. Further DIRECTING the incumbent Chief of the Philippine National Police, or his
successor, to furnish to this Court, the Court of Appeals, and the petitioner or her
representative, a copy of the reports of its investigations and their recommendations,
other than those that are already part of the records of this case, within ninety (90)
days from receipt of this decision.
d. Further DIRECTING the Commission on Human Rights (a) to furnish to the Court of
Appeals within ninety (90) days from receipt of this decision, a copy of the reports on
its investigation and its corresponding recommendations; and (b) to provide or
continue to provide protection to the petitioner during her stay or visit to the
Philippines, until such time as may hereinafter be determined by this Court.
5.) REFERRING BACK the instant case to the Court of Appeals for the following purposes:
a. To MONITOR the investigations and actions taken by the PNP, AFP, and the CHR;
b. To DETERMINE whether, in light of the reports and recommendations of the CHR,
the abduction and torture of the petitioner was committed by persons acting under any
of the public respondents; and on the basis of this determination—
c. To SUBMIT to this Court within ten (10) days from receipt of the report and
recommendation of the Commission on Human Rights—its own report, which shall
include a recommendation either for the DISMISSAL of the petition as against the
public respondents who were found not responsible and/or accountable, or for the
APPROPRIATE REMEDIAL MEASURES, AS MAY BE ALLOWED BY THE AMPARO AND
HABEAS DATA RULES, TO BE UNDERTAKEN as against those found responsible and/or
accountable.
Accordingly, the public respondents shall remain personally impleaded in this petition to answer for any
responsibilities and/or accountabilities they may have incurred during their incumbencies.
Other findings of the Court of Appeals in its Decision dated 26 August 2009 in CA-G.R. SP No. 00036-WRA
that are not contrary to this decision are AFFIRMED.
SO ORDERED.

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 37

 G.R. No. 178497, February 04, 2014
EDITA T. BURGOS, Petitioner, v. GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO,
MAJ. GEN. JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL CLEMENT, LT. COL.
MELQUIADES FELICIANO, AND DIRECTOR GENERAL OSCAR CALDERON, Respondents.
[G.R. No. 183711]
EDITA T. BURGOS, Petitioner, v. GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO,
MAJ. GEN. JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL CLEMENT, LT. COL.
MELQUIADES FELICIANO, AND DIRECTOR GENERAL OSCAR CALDERON, Respondents.
[G.R. No. 183712]
EDITA T. BURGOS, Petitioner, v. GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO,
MAJ. GEN. JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, AND LT. COL. NOEL
CLEMENT, Respondents.
[G.R. No. 183713]
EDITA T. BURGOS, Petitioner, v. CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, GEN.
HERMOGENES ESPERON, JR.; COMMANDING GENERAL OF THE PHILIPPINE ARMY, LT. GEN. ALEXANDER
YANO; AND CHIEF OF THE PHILIPPINE NATIONAL POLICE, DIRECTOR GENERAL AVELINO RAZON,
JR., Respondents.
RESOLUTION
BRION, J.:
We resolve in this Resolution all the pending incidents in this case, specifically:
(a) The determination of the relevance and advisability of the public disclosure of the documents
submitted by respondents President Gloria Macapagal–Arroyo, Lt. Gen. Romeo P. Tolentino, Maj.
Gen. Juanito Gomez, Maj. Gen. Delfin Bangit, Lt. Col. Noel Clement, Lt. Col. Melquiades Feliciano,
Director General Oscar Calderon, Chief of Staff of the Armed Forces of the Philippines, Gen.
Hermogenes Esperon, Jr.; Commanding General of the Philippine Army, Lt. Gen. Alexander Yano;
and Chief of the Philippine National Police, Director General Avelino Razon, Jr. to this Court per
paragraph III (i) of the fallo of our July 5, 2011 Resolution; and
(b) The Urgent Ex Parte Motion Ex Abundanti Cautela 1 (together with sealed attachments) filed by
petitioner Edita T. Burgos praying that the Court: (1) order the persons named in the sealed
documents impleaded in CA–G.R. SP No. 00008–WA and G.R. No. 183713; (2) issue a writ
of Amparo on the basis of the newly discovered evidence (the sealed attachments to the motion);
and (3) refer the cases to the Court of Appeals (CA) for further hearings on the newly discovered
evidence.
FACTUAL ANTECEDENTS
A. The Court’s June 22, 2010 Resolution
These incidents stemmed from our June 22, 2010 Resolution referring the present case to the
Commission on Human Rights (CHR) as the Court’s directly commissioned agency, tasked with the
continuation of the investigation of Jonas Joseph T. Burgos’ abduction with the obligation to report its
factual findings and recommendations to this Court. This referral was necessary as the investigation by
the Philippine National Police–Criminal Investigation and Detection Group (PNP–CIDG), by the Armed
Forces of the Philippines (AFP) Provost Marshal, and even the initial CHR investigation had been less than
complete. In all of them, there were significant lapses in the handling of the investigation. In particular,
we highlighted the PNP–CIDG’s failure to identify the cartographic sketches of two (one male and one
female) of the five abductors of Jonas, based on their interview with the eyewitnesses to the
abduction.
In this same Resolution, we also affirmed the CA’s dismissal of the petitions for Contempt and issuance of
a Writ of Amparo with respect to President Macapagal–Arroyo who was then entitled, as President, to
immunity from suit.
The March 15, 2011 CHR Report
On March 15, 2011, the CHR submitted to the Court its Investigation Report on the Enforced
Disappearance of Jonas Burgos (CHR Report), in compliance with our June 22, 2010 Resolution. On the
basis of the gathered evidence, the CHR submitted the following findings:chanRoblesvirtualLawlibrary
Based on the facts developed by evidence obtaining in this case, the CHR finds that the enforced
disappearance of Jonas Joseph T. Burgos had transpired; and that his constitutional rights to life liberty
and security were violated by the Government have been fully determined.
Jeffrey Cabintoy and Elsa Agasang have witnessed on that fateful day of April 28, 2007 the forcible
abduction of Jonas Burgos by a group of about seven (7) men and a woman from the extension portion
of Hapag Kainan Restaurant, located at the ground floor of Ever Gotesco Mall, Commonwealth Avenue,
Quezon City.
xxx
The eyewitnesses mentioned above were Jeffrey Cabintoy (Jeffrey) and Elsa Agasang (Elsa), who at the
time of the abduction were working as busboy and Trainee–Supervisor, respectively, at Hapag Kainan
Restaurant.
In his Sinumpaang Salaysay, Jeffrey had a clear recollection of the face of HARRY AGAGEN BALIAGA, JR.
as one of the principal abductors, apart from the faces of the two abductors in the cartographic sketches
that he described to the police, after he was shown by the Team the pictures in the PMA Year Book of
Batch Sanghaya 2000 and group pictures of men taken some years thereafter.
The same group of pictures were shown to detained former 56 th IB Army trooper Edmond M. Dag–
uman (Dag–uman), who also positively identified Lt. Harry Baliaga, Jr. Daguman’s Sinumpaang
Salaysay states that he came to know Lt. Baliaga as a Company Commander in the 56 th IB while he was
still in the military service (with Serial No. 800693, from 1997 to 2002) also with the 56 th IB but under
1Lt. Usmalik Tayaban, the Commander of Bravo Company. When he was arrested and brought to the
56th IB Camp in April 2005, he did not see Lt. Baliaga anymore at the said camp. The similar reaction that
the pictures elicited from both Jeffrey and Daguman did not pass unnoticed by the Team. Both men
always look pensive, probably because of the pathetic plight they are in right now. It came as a surprise
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 38
therefore to the Team when they could hardly hide their smile upon seeing the face of Baliaga, as if they
know the man very well.
Moreover, when the Team asked how certain Jeffrey was or [sic] that it was indeed Baliaga that he saw
as among those who actually participated in Jonas’ abduction. Jeffrey was able to give a graphic
description and spontaneously, to boot, the blow by blow account of the incident, including the initial
positioning of the actors, specially Baliaga, who even approached, talked to, and prevented him from
interfering in their criminal act.
A Rebel–returnee (RR) named Maria Vita Lozada y Villegas @KA MY, has identified the face of the female
in the cartographic sketch as a certain Lt. Fernando. While Lozada refuses to include her identification of
Lt. Fernando in her Sinumpaang Salaysay for fear of a backlash, she told the Team that she was certain it
was Lt. Fernando in the cartographic sketch since both of them were involved in counter–insurgency
operations at the 56th IB, while she was under the care of the battalion from March 2006 until she left the
56th IB Headquarters in October 2007. Lozada’s involvement in counter–insurgency operations together
with Lt. Fernando was among the facts gathered by the CHR Regional Office 3 Investigators, whose
investigation into the enforced disappearance of Jonas Joseph Burgos was documented by way of an
After Mission Report dated August 13, 2008.
Most if not all the actual abductors would have been identified had it not been for what is otherwise
called as evidentiary difficulties shamelessly put up by some police and military elites. The deliberate
refusal of TJAG Roa to provide the CHR with the requested documents does not only defy the Supreme
Court directive to the AFP but ipso facto created a disputable presumption that AFP personnel were
responsible for the abduction and that their superiors would be found accountable, if not responsible,
for the crime committed. This observation finds support in the disputable presumption “That evidence
willfully suppressed would be adverse if produced.” (Paragraph (e), Section 3, Rule 131 on Burden of
Proof and Presumptions, Revised Rules on Evidence of the Rules of Court of the Philippines).
In saying that the requested document is irrelevant, the Team has deemed that the requested
documents and profiles would help ascertain the true identities of the cartographic sketches of two
abductors because a certain Virgilio Eustaquio has claimed that one of the intelligence operatives
involved in the 2007 ERAP 5 case fits the description of his abductor.
As regards the PNP CIDG, the positive identification of former 56 th IB officer Lt. HARRY A. BALIAGA, JR.
as one of the principal abductors has effectively crushed the theory of the CIDG witnesses that the
NPAs abducted Jonas. Baliaga’s true identity and affiliation with the military have been established by
overwhelming evidence corroborated by detained former Army trooper Dag–uman.
For lack of material time, the Commission will continue to investigate the enforced disappearance of
Jonas Burgos as an independent body and pursuant to its mandate under the 1987 Constitution. Of
particular importance are the identities and locations of the persons appearing in the cartographic
sketches; the allegations that CIDG Witnesses Emerito G. Lipio and Meliza Concepcion–Reyes are AFP
enlisted personnel and the alleged participation of Delfin De Guzman @ Ka Baste in the abduction of
Jonas Burgos whose case for Murder and Attempted Murder was dismissed by the court for failure of the
lone witness, an army man of the 56th IB to testify against him.
Interview with Virgilio Eustaquio, Chairman of the Union Masses for Democracy and Justice
(UMDJ), revealed that the male abductor of Jonas Burgos appearing in the cartographic sketch was
among the raiders who abducted him and four others, identified as Jim Cabauatan, Jose Curament,
Ruben Dionisio and Dennis Ibona otherwise known as ERAP FIVE.
Unfortunately, and as already pointed out above, The Judge Advocate General (TJAG) turned down the
request of the Team for a profile of the operatives in the so–called “Erap 5” abduction on the ground of
relevancy and branded the request as a fishing expedition per its Disposition Form dated September 21,
2010.
Efforts to contact Virgilio Eustaquio to secure his affidavit proved futile, as his present whereabouts
cannot be determined. And due to lack of material time, the Commission decided to pursue the same
and determine the whereabouts of the other members of the “Erap 5” on its own time and authority as
an independent body.2ChanRoblesVirtualawlibrary
B. The Court’s July 5, 2011 Resolution
On July 5, 2011, in light of the new evidence and leads the CHR uncovered, we issued a Resolution: (1)
issuing anew a Writ of Habeas Corpus and referring the habeas corpus petition to the CA; (2) holding in
abeyance our ruling on the merits of the Amparo aspect of the case; referring back the same to the CA
in order to allow Lt. Harry A. Baliaga, Jr. and the present Amparo respondents to file their Comments
on the CHR Report; and ordering Lt. Baliaga to be impleaded as a party to the Amparo petition; and (3)
affirming the dismissal of the petitioner’s petition for Contempt, without prejudice to the re–filing of the
contempt charge as may be warranted by the results of the subsequent CHR investigation. To quote the
exact wording of our Resolution:
WHEREFORE, in the interest of justice and for the foregoing reasons,
we RESOLVE to:chanRoblesvirtualLawlibrary
I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA–G.R. SP No. 99839)
II. ISSUE a Writ of Habeas Corpus anew, returnable to the Presiding Justice of the Court of Appeals
who shall immediately refer the writ to the same Division that decided the habeas
corpus petition;
III. ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA–G.R. SP No. 99839 and G.R. No. 183711,
and REQUIRE him, together with the incumbent Chief of Staff, Armed Forces of the Philippines;
the incumbent Commanding General, Philippine Army; and the Commanding Officer of the
56th IB, 7th Infantry Division, Philippine Army at the time of the disappearance of Jonas Joseph T.
Burgos, Lt. Col. Melquiades Feliciano, to produce the person of Jonas Joseph T. Burgos under the
terms the Court of Appeals shall prescribe, and to show cause why Jonas Joseph T. Burgos
should not be released from detention;
IV. REFER back the petition for habeas corpus to the same Division of the Court of Appeals which
shall continue to hear this case after the required Returns shall have been filed and render a
new decision within thirty (30) days after the case is submitted for decision; and
V. ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of
the Philippine Army to be impleaded as parties, separate from the original respondents
impleaded in the petition, and the dropping or deletion of President Gloria Macapagal–Arroyo
as party–respondent.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 39

IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA–G.R. SP No. 100230 )
e. AFFIRM the dismissal of the petitioner’s petition for Contempt in CA–G.R. SP No. 100230, without
prejudice to the re–filing of the contempt charge as may be warranted by the results of the subsequent
CHR investigation this Court has ordered; and
f. ORDER the dropping or deletion of former President Gloria Macapagal–Arroyo as party–respondent, in
light of the unconditional dismissal of the contempt charge against her.
IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CA–G.R. SP No. 00008–WA )
g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA–G.R. SP No. 00008–WA and G.R. No. 183713, without
prejudice to similar directives we may issue with respect to others whose identities and participation may
be disclosed in future investigations and proceedings;
h. DIRECT Lt. Harry A. Baliaga, Jr., and the present Amparo respondents to file their Comments on the
CHR report with the Court of Appeals, within a non–extendible period of fifteen (15) days from receipt of
this Resolution.
i. REQUIRE General Roa of the Office of the Judge Advocate General, AFP; the Deputy Chief of Staff for
Personnel, JI, AFP, at the time of our June 22, 2010 Resolution; and then Chief of Staff, AFP, Gen. Ricardo
David, (a) to show cause and explain to this Court, within a non–extendible period of fifteen (15) days
from receipt of this Resolution, why they should not be held in contempt of this Court for their defiance
of our June 22, 2010 Resolution; and (b) to submit to this Court, within a non–extendible period of fifteen
(15) days from receipt of this Resolution, a copy of the documents requested by the CHR, particularly:
1) The profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army); Cpl.
Maria Joana Francisco (Philippine Air Force); M/Sgt. Aron Arroyo (Philippine Air Force); an alias T.L.
– all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the Armed
Forces of the Philippines – and 2Lt. Fernando, a lady officer involved in the counter–insurgency
operations of the 56th IB in 2006 to 2007;
   
2) Copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City and the complete list of
the intelligence operatives involved in that said covert military operation, including their respective
Summary of Information and individual pictures; and
   
3) Complete list of the officers, women and men assigned at the 56th and 69th Infantry Battalion and
the 7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles,
Summary of Information and pictures; including the list of captured rebels and rebels who
surrendered to the said camps and their corresponding pictures and copies of their Tactical
Interrogation Reports and the cases filed against them, if any.
These documents shall be released exclusively to this Court for our examination to determine their
relevance to the present case and the advisability of their public disclosure.
j. ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the
Philippine Army to be impleaded as parties, in representation of their respective organizations,
separately from the original respondents impleaded in the petition; and the dropping of President Gloria
Macapagal–Arroyo as party–respondent;
k. REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Department of Justice for admission to
the Witness Protection Security and Benefit Program, subject to the requirements of Republic Act No.
6981; and
l. NOTE the criminal complaint filed by the petitioner with the DOJ which the latter may investigate and
act upon on its own pursuant to Section 21 of the Rule on the Writ of Amparo.3
C. The Court’s August 23, 2011 Resolution
On August 23, 2011, we issued a Resolution resolving among others:
(a) to NOTE the Explanation separately filed by Brigadier Gen. Gilberto Jose C. Roa, Armed Forces of
the Philippines (AFP), General Ricardo A. David, Jr., AFP (ret.), and Rear Admiral Cornelio A. dela
Cruz, Jr., AFP;
   
  xxx
   
(c) to LIMIT the documents to be submitted to this Court to those assigned at the 56th Infantry
Battalion (IB) from January 1, 2004 to June 30, 2007, and to SUBMIT these materials within ten (10)
days from notice of this Resolution, without prejudice to the submission of the other documents
required under the Court’s July 5, 2011 Resolution, pertaining to those assigned at the other units
of the AFP, should the relevance of these documents be established during the Court of Appeal’s
hearing;
   
(d) to REQUIRE the submission, within ten (10) days from notice of this Resolution, of the Summary of
Information and individual pictures of the intelligence operatives involved in the ERAP 5 incident, in
compliance with the Court’s July 5, 2011 Resolution;
   
(e) to REQUIRE the submission, within ten (10) days from notice of this Resolution, of the profile and
Summary of Information and pictures of an alias T.L., reportedly assigned with Military Intelligence
Group 15 of the Intelligence Service of the AFP and of a 2Lt. Fernando, a lady officer in the counter–
insurgency operations of the 56th IB in 2006 to 2007, in compliance with the Court’s July 5, 2011
Resolution.4
The Respondents’ September 23, 2011 Manifestation and Motion
On September 23, 2011, the respondents submitted a Manifestation and Motion in compliance with the
Court’s August 23, 2011 Resolution. Attached to this Manifestation and Motion are the following
documents:chanRoblesvirtualLawlibrary
a. The Summary of Information (SOI) of the officers and enlisted personnel of the 56th IB, 7th ID
from January 1, 2004 to June 30, 2007;
b. The Summary of Information (SOI) of the intelligence operatives who were involved in the ERAP
5 incident; and
c. The Summary of Information (SOI) of 2Lt. Fernando, who was a member of the 56th IB, 7th ID.5
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 40
D. The Court’s September 6, 2011 Resolution
On August 19, 2011, the petitioner filed a Manifestation and a Motion for Clarificatory Order praying
among others that she be allowed to examine the documents submitted to the Court pursuant to
paragraph III (i) of the Court’s July 5, 2011 Resolution. In our September 6, 2011 Resolution, we resolved,
among others, to:chanRoblesvirtualLawlibrary
(3) DENY the petitioner’s request to be allowed to examine the documents submitted to this Court per
paragraph (i) of the fallo of our July 5, 2011 Resolution, without prejudice to our later
determination of the relevance and of the advisability of public disclosure of those
documents/materials;6
E. The Court’s October 11, 2011 Resolution
On October 11, 2011, we issued a Resolution requiring the CHR to secure Virgilio Eustaquio’s affidavit,
and to submit a report of its ongoing investigation of Jonas’ abduction, viz:
(1) REQUIRE the Commission on Human Rights to undertake all available measures to obtain the
affidavit of witness Virgilio Eustaquio in connection with his allegation that one of the male
abductors of Jonas Joseph T. Burgos, appearing in the cartographic sketch, was among the “raiders”
who abducted him and four others, identified as Jim Cabauatan, Jose Curament, Ruben Dionisio and
Dennis Ibona (otherwise known as the “ERAP FIVE”);
   
(2) DIRECT the Commission on Human Rights to submit to this Court, within thirty (30) days from
receipt of this Resolution, a Report, with its recommendations of its ongoing investigation of
Burgos’ abduction, and the affidavit of Virgilio Eustaquio, if any, copy furnished the petitioner, the
Court of Appeals, the incumbent Chiefs of the AFP, the PNP and the PNP–CIDG, and all the present
respondents before the Court of Appeals.7
F. The Court’s November 29, 2011 Resolution
On November 2, 2011, we received a letter dated October 28, 2011 from Commissioner Jose Manuel S.
Mamauag, Team Leader, CHR Special Investigation Team, requesting photocopies of the following
documents:chanRoblesvirtualLawlibrary
i. SOI of the officers and enlisted personnel of the 56th IB, 7th ID from January 1, 2004 to June 30,
2007;
ii. SOI of the intelligence operatives who were involved in the ERAP 5 incident; and
iii. SOI of 2Lt. Fernando who was a member of the 56th IB, 7th ID.8
In our November 29, 2011 Resolution, we denied the CHR’s request considering the confidential nature
of the requested documents and because the relevance of these documents to the present case had not
been established. We referred the CHR to our July 5, 2011 Resolution where we pointedly stated that
these documents shall be “released exclusively to this Court for our examination to determine their
relevance to the present case and the advisability of their public disclosure.”9
We held that “[w]e see no reason at this time to release these confidential documents since their
relevance to the present case has not been established to our satisfaction. It is precisely for this reason
that we issued our October 24, 2011 Resolution and directed the CHR to submit to this Court, within
thirty (30) days from receipt of the Resolution, a Report with its recommendations of its ongoing
investigation of Jonas Burgos’ abduction, and the affidavit of Virgilio Eustaquio, if any. Simply stated, it is
only after the CHR’s faithful compliance with our October 24, 2011 Resolution that we will be able to
determine the relevance of the requested documents to the present case.”10
G. The March 20, 2012 CHR Progress Report and Eustaquio’s Affidavit
On March 20, 2012, the CHR submitted its Progress Report detailing its efforts to secure the affidavit of
witness Eustaquio in relation with his allegation that one of the male abductors of Jonas, appearing in the
cartographic sketch, was among the raiders who abducted him and four others, identified as Jim
Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona (otherwise known as the “ERAP FIVE”).
Attached to this Report is Eustaquio’s sworn affidavit dated March 16, 2012, which pertinently stated:
1. I was one of the victims in the abduction incident on May 22, 2006 otherwise known as ERAP 5
and because of that, we filed a case with the Ombudsman against Commodore Leonardo
Calderon, et al., all then ISAFP elements, docketed as OMB–P–C–06–04050–E for Arbitrary
Detention, Unlawful Arrest, Maltreatment of Prisoners, Grave Threats, Incriminatory
Machination, and Robbery.
2. On March 16, 2012, I was approached again by the CHR Special Investigation Team regarding
the information I have previously relayed to them sometime in September 2010 as to the
resemblance of the cartographic sketch of the man as described by the two eyewitnesses Elsa
Agasang and Jeffrey Cabintoy in the abduction case of Jonas Burgos;
3. I can say that the male abductor of Jonas Burgos appearing in the cartographic sketch is among
the raiders who abducted me and my four other companions because the cartographic sketch
almost exactly matched and/or resembled to the cartographic sketch that I also provided and
described in relation to the said incident at my rented house in Kamuning, Quezon City on May
22, 2006.
4. I am executing this affidavit voluntarily, freely and attest to the truth of the
foregoing.11cralawred
H. The March 18, 2013 CA Decision
On March 18, 2013, the CA issued its decision pursuant to the Court’s July 5, 2011 Resolution referring
the Amparo and Habeas Corpus aspects of the case to the CA for appropriate hearings and ruling on the
merits of the petitions.
Petition for Habeas Corpus
The CA held that the issue in the petition for habeas corpus is not the illegal confinement or detention of
Jonas, but his enforced disappearance. Considering that Jonas was a victim of enforced disappearance,
the present case is beyond the ambit of a petition for habeas corpus.
Petition for the Writ of Amparo      
Based on its finding that Jonas was a victim of enforced disappearance, the CA concluded that the
present case falls within the ambit of the Writ of Amparo. The CA found that the totality of the evidence
supports the petitioner’s allegation that the military was involved in the enforced disappearance of
Jonas. The CA took note of Jeffrey Cabintoy’s positive identification of Lt. Baliaga as one of the abductors
who approached him and told him not to interfere because the man being arrested had been under
surveillance for drugs; he also remembered the face of Lt. Baliaga – the face he identified in the pictures
because he resembles his friend Raven. The CA also held that Lt. Baliaga’s alibi and corroborative
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 41
evidence cannot prevail over Cabintoy’s positive identification, considering especially the absence of any
indication that he was impelled by hatred or any improper motive to testify against Lt. Baliaga. Thus, the
CA held that Lt. Baliaga was responsible and the AFP and the PNP were accountable for the enforced
disappearance of Jonas.
Based on these considerations, the CA resolved to:
1) RECOGNIZING the abduction of Jonas Burgos as an enforced disappearance covered by the Rule on
the Writ of Amparo;
2) With regard to authorship,
     
  a) DECLARING Maj. Harry A. Baliaga, Jr. RESPONSIBLE for the enforced disappearance of Jonas
Burgos; and
     
  b) DECLARING the Armed Forces of the Philippines and elements of the Armed Forces of the
Philippines, particularly the Philippine Army, ACCOUNTABLE for the enforced disappearance of
Jonas Burgos;
     
3) DECLARING the Philippine National Police ACCOUNTABLE for the conduct of an exhaustive
investigation of the enforced disappearance of Jonas Burgos. To this end, the PNP through its
investigative arm, the PNP–CIDG, is directed to exercise extraordinary diligence to identify and
locate the abductors of Jonas Burgos who are still at large and to establish the link between the
abductors of Jonas Burgos and those involved in the ERAP 5 incident.
(4) DIRECTING the incumbent Chief of Staff of the Armed Forces of the Philippines and the Director
General of the Philippine National Police, and their successors, to ensure the continuance of their
investigation and coordination on the enforced disappearance of Jonas Burgos until the persons
found responsible are brought before the bar of justice;
     
(5) DIRECTING the Commission on Human Rights to continue with its own independent investigation
on the enforced disappearance of Jonas Burgos with the same degree of diligence required under
the Rule on the Writ of Amparo; and
     
(6) DIRECTING the Armed Forces of the Philippines and the Philippine National Police to extend full
assistance to the Commission on Human Rights in the conduct of the latter’s investigation.
The Chief of Staff, Armed Forces of the Philippines, the Director General, Philippine National Police and
the Chairman, Commission on Human Rights are hereby DIRECTED to submit a quarterly report to this
Court on the results of their respective investigation.
The filing of petitioner’s Affidavit–Complaint against Maj. Harry A. Baliaga, Jr., et al. before the
Department of Justice on June 9, 2011 is NOTED. Petitioner is DIRECTED to immediately inform this Court
of any development regarding the outcome of the case.12
The Respondent’s April 3, 2013 Motion for Partial Reconsideration
The Solicitor General, in behalf of the public respondents (the AFP Chief of Staff and the PNP Director
General), filed a motion for partial reconsideration of the March 18, 2013 CA decision. The motion made
the following submissions:
5. x x x[T]he Director General, PNP, respectfully takes exception to the Honorable Court’s findings that
the PNP, specifically the CIDG, “failed to exercise extraordinary diligence in the conduct of its
investigation.” x x x [T]hat this Honorable Court arrived at a conclusion different from that of the CIDG, or
accorded different credence to the statements of the witnesses presented by the parties, does not
necessarily translate to the CIDG’s failure to exercise extraordinary diligence.
6. The Chief of Staff, AFP also takes exception to the Honorable Court’s findings that the “Chief of Staff of
the Armed Forces of the Philippines and the Commanding General should be held accountable for Jonas
Burgos disappearance for failing to exercise extraordinary diligence in conducting an internal
investigation on the matter. The unwillingness of the respondent officers of the 56th IB to cooperate in
the investigation conducted by the CHR is a persuasive proof of the alleged cover up of the military’s
involvement in the enforced disappearance of Jonas Burgos.”
The AFP and the Philippine Army conducted a thorough investigation to determine the veracity of the
allegations implicating some of its officers and personnel. After the conduct of the same, it is the
conclusion of the Armed Forces of the Philippines and the Philippine Army, based on the evidence they
obtained, that Jonas Burgos has never been in custody.
7. The Chief of Staff, AFP, also respectfully takes exception to the finding of the Honorable Court
“recognizing the abduction of Jonas Burgos as an enforced disappearance.”
xxx
That the Honorable Court found a member of the Philippine Army or even a group of military men to be
responsible for the abduction of Jonas Burgos, does not necessarily make the same a case of “enforced
disappearance” involving the State. There is dearth of evidence to show that the government is involved.
Respondent Baliaga’s alleged participation in the abduction and his previous membership in the
56th Infantry Battalion of the Philippine Army, by themselves, do not prove the participation or
acquiescence of the State.13ChanRoblesVirtualawlibrary
I. The CA Resolution dated May 23, 2013      
On May 23, 2013, the CA issued its resolution denying the respondents’ motion for partial
reconsideration. The CA ruled that as far as the PNP was concerned, its failure to elicit leads and
information from Cabintoy who witnessed Jonas’ abduction is eloquent proof of its failure to exercise
extraordinary diligence in the conduct of its investigation. As far as the AFP was concerned, the CA held
that the fact that Lt. Baliaga of the Philippine Army was positively identified as one of the abductors of
Jonas, coupled with the AFP’s lack of serious effort to conduct further investigation, spoke loudly of the
AFP leadership’s accountability.
To date, the respondents have not appealed to this Court, as provided under Section 19 of the Rule on
the Writ of Amparo.14
J. The Petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela dated April 1, 2013
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 42

On April 1, 2013, the petitioner filed an Ex Parte Motion Ex Abundanti Cautela asking the Court to: (1)
order the persons named in the sealed documents to be impleaded in CA–G.R. SP No. 00008–WA and
G.R. No. 183713; (2) issue a writ of Amparo on the basis of the newly discovered evidence (the sealed
attachment to the motion); and (3) refer the cases to the CA for further hearing on the newly discovered
evidence.
The petitioner alleged that she received from a source (who requested to remain anonymous)
documentary evidence proving that an intelligence unit of the 7th Infantry Division of the Philippine Army
and 56th Infantry Battalion, operating together, captured Jonas on April 28, 2007 at Ever Gotesco Mall,
Commonwealth Avenue, Quezon City. This documentary evidence consists of: (1) After Apprehension
Report dated April 30, 2007; (2) Psycho Social Processing Report dated April 28, 2007; and (3)
Autobiography of Jonas. The petitioner also claimed that these are copies of confidential official reports
on file with the Philippine Army.
i. After Apprehension Report dated April 30, 2007
This report is a photocopy consisting six pages dated April 30, 2007, addressed to the Commanding
Officer, 7MIB, 7ID, LA, Fort Magsaysay, NE. The report detailed the planning and the objective of
apprehending target communist leaders, among them, one alias “Ramon” who was captured at Ever
Gotesco Mall, Commonwealth, Quezon City on April 28, 2007 by joint elements of the 72 MICO and S2,
56th IB. This report also listed the names of the military personnel belonging to task organization 72 MICO
and 56th IB who conducted the operation.
ii. Psycho Social Processing Report dated April 28, 2007
This report details Jonas’ abduction and “neutralization”; the results of his interrogation and the
intelligence gathered on his significant involvements/activities within the CPP/NPA/NDF organization.
iii. Undated Autobiography
This autobiography narrates how Jonas started as a student activist, his recruitment and eventual ascent
in the CPP/NPA as an intelligence officer.
K. The Court’s April 11, 2013 Resolution
In our April 11, 2013 Resolution, the Court resolved to require the respondents to Comment on the
petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela and its attachments, within ten (10) days from
receipt of the Resolution. In the same Resolution, the Court:chanRoblesvirtualLawlibrary
(1) required BGen. Roa and Lt. Gen. Emmanuel T. Bautista to fully comply with the terms of Section III
(i) of the dispositive portion of our July 5, 2011 Resolution within fifteen (15) days from receipt of
the resolution;
   
(2) required Lt. Gen. Emmanuel T. Bautista to submit a written assurance within fifteen (15) days from
receipt of the Resolution that the military personnel listed in the submitted After Apprehension
Report can be located and be served with the processes that the Court may serve;
(3) issued a Temporary Protection Order in favor of the petitioner and all the members of her
immediate family;
   
(4) directed the DOJ and the NBI to provide security and protection to the petitioner and her
immediate family and to submit a confidential memorandum on the security arrangements made;
(5) directed the NBI to coordinate and provide direct investigative assistance to the CHR as it may
require pursuant to the authority granted under the Court’s June 22, 2010 Resolution.15
i. The respondents’ Comment from the petitioner’s Urgent Ex Parte Motion Ex Abundanti
Cautela dated June 6, 2013
On June 6, 2013, the respondents, through the Office of the Solicitor General, filed their comments on
the petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela.
First, the respondents alleged that the documents submitted by the petitioner do not exist in the
concerned military units’ respective records, nor are they in the custody or possession of their respective
units. To support their allegations, the respondents submitted the following:
a. Certification dated May 29, 2013 from Maj. Gen. Gregorio Pio P. Catapang, Jr. Commander,
7th Infantry Division, Philippine Army stating that the documents16 submitted by the petitioner
“do not exist nor in the possession/custody of this Headquarters.”
b. Certification dated May 29, 2013, from Lt. Col. Louie D.S. Villanueva, Assistant Chief of Staff,
Office of the Assistant Chief of Staff for Personnel, G1, 7th Infantry Division, Philippine Army
stating that the documents submitted by the petitioner “could not be found nor do they exist in
the records of this Command.”
c. Certification dated May 24, 2013 from Lt. Col. Bernardo M. Ona, Commanding Officer,
56th Infantry Battalion, 7th Infantry Division, Philippine Army stating that the documents
submitted by the petitioner “do not exist at this unit.”
d. Certification dated May 24, 2013 from 1Lt. Donal S. Frias, Acting Commanding Officer,
72nd Military Intelligence Company, 7th Military Intelligence Battalion, 7th Infantry Division,
Philippine Army stating that the documents submitted by the petitioner “do not exist at the
records or in the possession of this unit.”17
The respondents also submitted the affidavits of Lt. Col. Melquiades Feliciano, Maj. Allan M. Margarata
and Cpl. Ruby Benedicto, viz:
a. In his June 3, 2013 Affidavit, Col. Feliciano stated:
1. That I was assigned as Battalion Commander of 56th Infantry Division, 7th Infantry Division, PA
last 17 January 2007 to 17 August 2007.
2. That I was showed a photocopy of the After Apprehension Report dated 30 April 2007 wherein
members of 56th IB, 7ID, PA were included therein.
3. I vehemently oppose to (sic) the existence of the said document and the participation of my
men listed thereat. There were no military operations that I have authorized or approved
regarding Jonas Burgos. The contents thereof are false and utter fabrication of facts.
b. In his May 31, 2013 Affidavit, Maj. Margarata stated:
1. That I was assigned at 72nd Military Intelligence Company (72MICO), 7th Infantry Division, PA
from 01 July 2006 to 01 July 2008.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 43
 2. That I was showed a photocopy of the Psycho–Social Processing Report dated 28 April 2007 and
After Apprehension Report dated 30 April 2007, both of which purportedly came from 72MICO,
7th Infantry Division, Philippine Army and that on the last page of the Pyscho–Social Processing
Report appears my name therein.
3. I vehemently oppose to (sic) the existence of the said documents and the implication of my
name in the said documents. The contents thereof are purely a product of wild imagination. I
have never seen such document until now.
4. I can only surmise that these are plainly a fishing expedition on the part of Mrs. Edita Burgos. A
ploy to implicate any military personnel especially those belonging to the 7th Infantry Division,
Philippine Army.
c. In her May 31, 2013 Affidavit, Cpl. Benedicto stated:
1. That I was never assigned at 72nd Military Intelligence Company, 7th Infantry Division, PA.
2. That I was showed a photocopy of the Psycho–Social Processing Report dated 28 April 2007 and
After Apprehension Report dated 30 April 2007, both of which purportedly came from 72MICO,
7th Infantry Division, Philippine Army and that on the last page of the Psycho–Social Processing
Report appears my name therein.
3. I vehemently oppose to (sic) the existence of the said documents and the implication of my
name in the said documents. The contents thereof are false and utter fabrication of facts. How
can I ever be at 72MICO if I was never assigned thereat.
4. I have never been an interrogator in my entire military service. I have never been a member of
any operation which involves the name of Jonas Burgos or any other military operation for that
matter. I have never seen such document until now.
5. Furthermore, I have never worked with Maj. Allan Margarata or of his unit, 72MICO.18
Second, the respondents note that none of the documents submitted by the petitioner were signed; a
writ of Amparo cannot be issued and the investigation cannot progress on the basis of false documents
and false information.
Lastly, the respondents argue that since the National Bureau of Investigation (NBI) and CHR are
conducting their own investigations of the case, the petitioner’s motion at this point is premature; the
proceedings to be conducted by the CA will be at the very least redundant.
ii. The Respondents’ Compliance dated June 7, 2013
On June 7, 2013, the respondents, through the Office of Judge Advocate General, complied with our April
11, 2013 Resolution by submitting the following documents:
a. Profile/Summary of Information (SOI) with pictures of the personnel of 56th Infantry Battalion
(IB), 69th IB, and 7th Infantry Division, Philippine Army (PA). These documents were submitted by
the 7th ID in sealed nine (9) small and three (3) big boxes (total of twelve (12) sealed boxes);
b. Investigation Report of the Intelligence Service, Armed Forces of the Philippines (ISAFP) on the
2007 “ERAP 5” incident in Kamuning, Quezon City; Profile/Summary of Information (SOI) with
pictures of the Intel Operatives involved in the “ERAP 5” incident; and certification issued by the
Command Adjutant of ISAFP concerning T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana
Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force), an alias T.L., all
reportedly assigned with the Military Intelligence Group 15 of the Intelligence Service, AFP (MIG
15, ISAFP). These documents were submitted by ISAFP in a sealed envelope;
c. Profile/Summary of Information (SOI) with a picture of 2LT Fernando PA. This document was
submitted by Deputy Chief of Staff for Personnel, G1, PA in a sealed envelope;
d. A certification issued by 56IB and 69IB, 7ID, PA concerning captured/surrendered rebels;
e. A certification stating the present location and whereabouts of military personnel listed in the
submitted After Apprehension Report, dated April 30, 2007, allegedly identified as members of
the Task Organization –72 MICO and 56th IB with the inclusion of four (4) separate certifications
from Commander, 7ID, PA, Office of the Assistant Chief of Staff for Personnel, G1, 7ID, PA,
Commanding Officer, 72 MICO, and 56Ib, 71ID, PA, respectively, stating the non–existence of
the following documents: Psycho–Social Processing Report dated 28 April 2007; After–
Apprehension Report dated 30 April 2007; Autobiography of Jonas Burgos; and Picture of Jonas
Burgos;
f. Affidavit of Compliance of General Emmanuel T. Bautista, AFP, the Chief of Staff, assuring that
the active military personnel mentioned in the purported apprehension report can be located at
their given locations and be served with the processes that may be issued by the Honorable
Court.19
OUR RULING
A. On the relevancy and disclosure of the documents submitted to this Court per paragraph III(i) of the
fallo of our July 5, 2011 Resolution 
The directive for the submission of the above–mentioned documents arose from our determination in
our June 22, 2010 Resolution that the PNP–CIDG failed to identify the cartographic sketches of two (one
male and one female) of the five abductors of Jonas, based on their interview with eyewitnesses to the
abduction. For this reason, the Court directly commissioned the CHR to continue the investigation of
Jonas’ abduction and the gathering of evidence.
Based on its March 15, 2011 Report, the CHR uncovered a lead – a claim made by Eustaquio, Chairman of
the Union Masses for Democracy and Justice, that the male abductor of Jonas appearing in the
cartographic sketch was among the raiders who abducted him and four others, known as the “ERAP
FIVE.”
This prompted the CHR to request copies of the documents embodied in par. III(i) of the fallo of the
Court’s July 5, 2011 Resolution from General Gilberto Jose C. Roa of the Office of the Judge Advocate
General, AFP. Gen. Roa initially denied this request but eventually complied with the Court’s directive of
July 5, 2011 to submit the documents via the September 23, 2011 Manifestation and Motion and the
June 7, 2013 Compliance. In the same July 5, 2011 Resolution, the Court made it plain that these
documents shall be released exclusively to the Court for its examination to determine their relevance to
the present case and the advisability of their public disclosure.
Pursuant to the Court’s October 11, 2011 Resolution, the CHR submitted its March 20, 2012 Progress
Report on its continuing investigation of Jonas’ abduction. Attached to this Progress Report was Virgilio
Eustaquio’s sworn affidavit stating that: (1) he was one of the victims of the abduction incident on May
22, 2006, otherwise known as the “ERAP FIVE” incident; (2) as a result of this incident, they filed a case
with the Ombudsman against Commodore Leonardo Calderon and other members of the Intelligence
Service, AFP (ISAFP) for arbitrary detention, unlawful arrest, maltreatment of prisoners, grave threats,
incriminatory machination and robbery; and (3) the male abductor of Jonas appearing in the cartographic
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 44
sketch shown to him by the CHR was among the raiders who abducted him and his four companions
because it resembled the cartographic sketch he described in relation to the ERAP FIVE incident on May
22, 2006.
After reviewing the submissions of both the respondents20 and the CHR21 pursuant to the Court’s July 5,
2011, August 23, 2011 and October 11, 2011 Resolutions, we resolve to grant the CHR access to these
requested documents to allow them the opportunity to ascertain the true identities of the persons
depicted in the cartographic sketches.
At this point, we emphasize that the sworn affidavit of Eustaquio (that attests to the resemblance of one
of Jonas’ abductors to the abductors of the ERAP FIVE) constitutes the sought–after missing link that
establishes the relevance of the requested documents to the present case. We note that this lead may
help the CHR ascertain the identities of those depicted in the cartographic sketches as two of Jonas’
abductors (one male and one female) who, to this day, remain unidentified.
In view of the sensitive and confidential nature of the requested documents, we direct the Clerk of Court
of the Supreme Court to allow the duly–authorized representatives of the CHR to inspect the requested
documents in camera within five (5) days from receipt of this Resolution. The documents shall be
examined and compared with the cartographic sketches of the two abductors of Jonas, without copying
and without bringing the documents outside the premises of the Office of the Clerk of Court of the
Supreme Court. The inspection of the documents shall be within office hours and for a reasonable period
of time sufficient to allow the CHR to comprehensively investigate the lead provided by Eustaquio.
To fully fulfill the objective of the Rule on the Writ of Amparo, further investigation using the standard of
extraordinary diligence should be undertaken by the CHR to pursue the lead provided by Eustaquio. We
take judicial notice of the ongoing investigation being conducted by the Department of Justice (DOJ),
through the NBI, on the disappearance of Jonas.22 In this regard, we direct the NBI to coordinate and
provide direct investigative assistance to the CHR as the latter may require, pursuant to the authority
granted under the Court’s June 22, 2010 Resolution.
For this purpose, we require the CHR to submit a supplemental investigation report to the DOJ, copy
furnished the petitioner, the NBI, the incumbent Chiefs of the AFP, the PNP and the PNP–CIDG, and all
the respondents within sixty days (60) days from receipt of this Resolution.
B. On the Urgent Ex Parte Motion Ex Abundanti Cautela  investigation and coordination on the enforced disappearance of Jonas Burgos until the persons
After reviewing the newly discovered evidence submitted by the petitioner and considering all the
developments of the case, including the March 18, 2013 CA decision that confirmed the validity of the
issuance of the Writ of Amparo in the present case, we resolve to deny the petitioner’s Urgent Ex Parte
Motion Ex Abundanti Cautela.
We note and conclude, based on the developments highlighted above, that the beneficial purpose of the
Writ of Amparo has been served in the present case. As we held in Razon, Jr. v. Tagitis,23 the writ merely
embodies the Court’s directives to police agencies to undertake specified courses of action to address
the enforced disappearance of an individual. The Writ of Amparo serves both a preventive and
a curative role. It is curative as it facilitates the subsequent punishment of perpetrators through the
investigation and remedial action that it directs.24 The focus is on procedural curative remedies rather
than on the tracking of a specific criminal or the resolution of administrative liabilities. The unique nature
of Amparo proceedings has led us to define terms or concepts specific to what the proceedings seek to
achieve. In Razon Jr., v. Tagitis,25 we defined what the terms “responsibility” and “accountability” signify
in an Amparo case. We said:
Responsibility refers to the extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility defined above;
or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance.26ChanRoblesVirtualawlibrary
In the present case, while Jonas remains missing, the series of calculated directives issued by the Court
outlined above and the extraordinary diligence the CHR demonstrated in its investigations resulted in the
criminal prosecution of Lt. Baliaga. We take judicial notice of the fact that the Regional Trial Court,
Quezon City, Branch 216, has already found probable cause for arbitrary detention against Lt. Baliaga and
has ordered his arrest in connection with Jonas’ disappearance.27
We also emphasize that the CA in its March 18, 2013 decision already ruled with finality on the entities
responsible and accountable (as these terms are defined in Razon, Jr. v. Tagitis) for the enforced
disappearance of Jonas. In its March 18, 2013 decision, the CA found, by substantial evidence, that Lt.
Baliaga participated in the abduction on the basis of Cabintoy’s positive identification that he was one of
the abductors of Jonas who told him not to interfere because the latter had been under surveillance for
drugs. In the same Decision, the CA also held the AFP and the PNP accountable for having failed to
discharge the burden of extraordinary diligence in the investigation of the enforced disappearance of
Jonas. Thus, the CA issued the following directives to address the enforced disappearance of Jonas:
(1) DIRECT the PNP through its investigative arm, the PNP–CIDG, to identify and locate the abductors of
Jonas Burgos who are still at large and to establish the link between the abductors of Jonas Burgos
and those involved in the ERAP 5 incident;
   
(2) DIRECT the incumbent Chief of Staff of the Armed Forces of the Philippines and the Director General
of the Philippines National Police, and their successors, to ensure the continuance of their
found responsible are brought before the bar of justice;
   
(3) DIRECT the Commission on Human Rights to continue with its own independent investigation on the
enforced disappearance of Jonas Burgos with the same degree of diligence required under the Rule
on the Writ of Amparo;
(4) DIRECT the Armed Forces of the Philippines and the Philippine National Police to extend full
assistance to the Commission on Human Rights in the conduct of the latter’s investigation; and
   
(5) DIRECT the Chief of Staff, Armed Forces of the Philippines, the Director General, Philippine National
Police and the Chairman, Commission on Human Rights to submit a quarterly report to the Court on
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 45
 the results of their respective investigation.28
We note that the respondents did not appeal the March 18, 2013 CA decision and the May 23, 2013 CA
resolution denying their motion for partial reconsideration.
Based on the above considerations, in particular, the final ruling of the CA that confirmed the validity of
the issuance of the Writ of Amparo and its determination of the entities responsible for the enforced
disappearance of Jonas, we resolve to deny the petitioner’s prayer to issue the writ of Amparo anew and
to refer the case to the CA based on the newly discovered evidence. We so conclude as the petitioner’s
request for the reissuance of the writ and for the rehearing of the case by the CA would be redundant
and superfluous in light of: (1) the ongoing investigation being conducted by the DOJ through the NBI; (2)
the CHR investigation directed by the Court in this Resolution; and (3) the continuing investigation
directed by the CA in its March 18, 2013 decision.
We emphasize that while the Rule on the Writ of Amparo accords the Court a wide latitude in crafting
remedies to address an enforced disappearance, it cannot (without violating the nature of the writ
of Amparo as a summary remedy that provides rapid judicial relief) grant remedies that would
complicate and prolong rather than expedite the investigations already ongoing. Note that the CA has
already determined with finality that Jonas was a victim of enforced disappearance.
We clarify that by denying the petitioner’s motion, we do not thereby rule on the admissibility or the
merits of the newly discovered evidence submitted by the petitioner. We likewise do not foreclose any
investigation by the proper investigative and prosecutory agencies of the other entities whose identities
and participation in the enforced disappearance of Jonas may be disclosed in future investigations and
proceedings. Considering that the present case has already reached the prosecution stage, the
petitioner’s motion should have been filed with the proper investigative and prosecutory agencies of the
government.
To expedite proceedings, we refer the petitioner’s motion, this Resolution and its covered cases to the
DOJ for investigation, for the purpose of filing the appropriate criminal charges in the proper courts
against the proper parties, if warranted, based on the gathered evidence. For this purpose, we direct the
petitioner to furnish the DOJ and the NBI copies of her Urgent Ex Parte Motion Ex Abundanti Cautela,
together with the sealed attachments to the Motion, within five (5) days from receipt of this Resolution.
As mentioned, we take judicial notice of the ongoing investigation by the DOJ, through the NBI, of the
disappearance of Jonas. This DOJ investigation is without prejudice to the Office of the Ombudsman’s
exercise of its primary jurisdiction over the investigation of the criminal aspect of this case should the
case be determined to be cognizable by the Sandiganbayan.29
As we direct below, further investigation for purposes of the present proceedings shall continue to be
undertaken by the CHR, in close coordination with the NBI, for the completion of the investigation under
the terms of our June 22, 2010 Resolution and the additional directives under the present Resolution.
As a final note, we emphasize that our ROLE in a writ of Amparo proceeding is merely to determine
whether an enforced disappearance has taken place; to determine who is responsible or accountable;
and to define and impose the appropriate remedies to address the disappearance.
As shown above, the beneficial purpose of the Writ of Amparo has been served in the present case with
the CA’s final determination of the persons responsible and accountable for the enforced disappearance
of Jonas and the commencement of criminal action against Lt. Baliaga. At this stage, criminal,
investigation and prosecution proceedings are already beyond the reach of the Writ
of Amparo proceeding now before us.
Based on the above developments, we now hold that the full extent of the remedies envisioned by the
Rule on the Writ of Amparo has been served and exhausted.Considering the foregoing, the
CourtRESOLVES to:
(1) DENY petitioner Edita Burgos’ Urgent Ex Parte Motion Ex Abundanti Cautela;
   
(2) REFER the petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela, this Resolution and its covered
cases to the Department of Justice for investigation for the purpose of filing the appropriate
criminal charges in the proper courts against the proper parties if such action is warranted by the
gathered evidence. The referral to the Department of Justice is without prejudice to the Office of
the Ombudsman’s exercise of its primary jurisdiction over the investigation should the case be
determined to be cognizable by the Sandiganbayan;
   
(3) DIRECT the petitioner to furnish the Department of Justice and the National Bureau of Investigation
copies of her Urgent Ex Parte Motion Ex Abundanti Cautela, together with the sealed attachments
to the Motion, within five (5) days from receipt of this Resolution;
   
(4) DIRECT the Clerk of Court of the Supreme Court to allow the duly–authorized representatives of the
Commission on Human Rights to inspect the requested documents in camera within five (5) days
from receipt of this Resolution. For this purpose, the documents shall be examined and compared
with the cartographic sketches of the two abductors of Jonas Burgos without copying and bringing
the documents outside the premises of the Office of the Clerk of Court of the Supreme Court. The
inspection of the documents shall be conducted within office hours and for a reasonable period of
time that would allow the Commission on Human Rights to comprehensively investigate the lead
provided by Virgilio Eustaquio;
   
(5) DIRECT the National Bureau of Investigation to coordinate and provide direct investigative
assistance to the Commission on Human Rights as the latter may require, pursuant to the authority
granted under the Court’s June 22, 2010 Resolution.
   
(6) REQUIRE the Commission on Human Rights to submit a supplemental investigation report to the
Department of Justice, copy furnished the petitioner, the National Bureau of Investigation, the
incumbent Chiefs of the Armed Forces of the Philippines, the Philippine National Police and the
Philippine National Police–Criminal Investigation and Detection Group, and all the respondents,
within sixty (60) days from receipt of this Resolution.
   
(7) DECLARE this Writ of Amparo proceeding closed and terminated, without prejudice to the
concerned parties’ compliance with the above directives and subject to the Court’s continuing
jurisdiction to enforce compliance with this Resolution.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 46

SO ORDERED.
G.R. No. 199199               August 27, 2013
MARICRIS D. DOLOT, CHAIRMAN OF THE BAGONG ALYANSANG MAKABAYAN-SORSOGON, PETITIONER
vs.
HON. RAMON PAJE, IN HIS CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, REYNULFO A. JUAN, REGIONAL DIRECTOR, MINES AND GEOSCIENCES BUREAU,
DENR, HON. RAUL R. LEE, GOVERNOR, PROVINCE OF SORSOGON, ANTONIO C. OCAMPO, JR., VICTORIA
A. AJERO, ALFREDO M. AGUILAR, AND JUAN M. AGUILAR, ANTONES ENTERPRISES, GLOBAL SUMMIT
MINES DEV'T CORP., AND TR ORE, RESPONDENTS.
DECISION
REYES, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court assailing the Order2 dated
September 16, 2011 and Resolution3 dated October 18, 2011 issued by the Regional Trial Court (RTC) of
Sorsogon, Branch 53. The assailed issuances dismissed Civil Case No. 2011-8338 for Continuing
Mandamus, Damages and Attorney’s Fees with Prayer for the Issuance of a Temporary Environment
Protection Order.
Antecedent Facts
On September 15, 2011, petitioner Maricris D. Dolot (Dolot), together with the parish priest of the Holy
Infant Jesus Parish and the officers of Alyansa Laban sa Mina sa Matnog (petitioners), filed a petition for
continuing mandamus, damages and attorney’s fees with the RTC of Sorsogon, docketed as Civil Case No.
2011-8338.4 The petition contained the following pertinent allegations: (1) sometime in 2009, they
protested the iron ore mining operations being conducted by Antones Enterprises, Global Summit Mines
Development Corporation and TR Ore in Barangays Balocawe and Bon-ot Daco, located in the
Municipality of Matnog, to no avail; (2) Matnog is located in the southern tip of Luzon and there is a need
to protect, preserve and maintain the geological foundation of the municipality; (3) Matnog is susceptible
to flooding and landslides, and confronted with the environmental dangers of flood hazard, liquefaction,
ground settlement, ground subsidence and landslide hazard; (4) after investigation, they learned that the
mining operators did not have the required permit to operate; (5) Sorsogon Governor Raul Lee and his
predecessor Sally Lee issued to the operators a small-scale mining permit, which they did not have
authority to issue; (6) the representatives of the Presidential Management Staff and the Department of
Environment and Natural Resources (DENR), despite knowledge, did not do anything to protect the
interest of the people of Matnog;5 and (7) the respondents violated Republic Act (R.A.) No. 7076 or the
People’s Small-Scale Mining Act of 1991, R.A. No. 7942 or the Philippine Mining Act of 1995, and the
Local Government Code.6 Thus, they prayed for the following reliefs: (1) the issuance of a writ
commanding the respondents to immediately stop the mining operations in the Municipality of Matnog;
(2) the issuance of a temporary environment protection order or TEPO; (3) the creation of an inter-
agency group to undertake the rehabilitation of the mining site; (4) award of damages; and (5) return of
the iron ore, among others.7
The case was referred by the Executive Judge to the RTC of Sorsogon, Branch 53 being the designated
environmental court.8 In the Order9 dated September 16, 2011, the case was summarily dismissed for
lack of jurisdiction.
The petitioners filed a motion for reconsideration but it was denied in the Resolution10 dated October 18,
2011. Aside from sustaining the dismissal of the case for lack of jurisdiction, the RTC11 further ruled that:
(1) there was no final court decree, order or decision yet that the public officials allegedly failed to act on,
which is a condition for the issuance of the writ of continuing mandamus; (2) the case was prematurely
filed as the petitioners therein failed to exhaust their administrative remedies; and (3) they also failed to
attach judicial affidavits and furnish a copy of the complaint to the government or appropriate agency, as
required by the rules.12
Petitioner Dolot went straight to this Court on pure questions of law.
Issues
The main issue in this case is whether the RTC-Branch 53 has jurisdiction to resolve Civil Case No. 2011-
8338. The other issue is whether the petition is dismissible on the grounds that: (1) there is no final court
decree, order or decision that the public officials allegedly failed to act on; (2) the case was prematurely
filed for failure to exhaust administrative remedies; and (3) the petitioners failed to attach judicial
affidavits and furnish a copy of the complaint to the government or appropriate agency.
Ruling of the Court
Jurisdiction and Venue
In dismissing the petition for lack of jurisdiction, the RTC, in its Order dated September 16, 2011,
apparently relied on SC Administrative Order (A.O.) No. 7 defining the territorial areas of the Regional
Trial Courts in Regions 1 to 12, and Administrative Circular (Admin. Circular) No. 23-2008,13 designating
the environmental courts "to try and decide violations of environmental laws x x x committed within
their respective territorial jurisdictions."14 Thus, it ruled that its territorial jurisdiction was limited within
the boundaries of Sorsogon City and the neighboring municipalities of Donsol, Pilar, Castilla, Casiguran
and Juban and that it was "bereft of jurisdiction to entertain, hear and decide [the] case, as such
authority rests before another co-equal court."15
Such reasoning is plainly erroneous. The RTC cannot solely rely on SC A.O. No. 7 and Admin. Circular No.
23-2008 and confine itself within its four corners in determining whether it had jurisdiction over the
action filed by the petitioners.
None is more well-settled than the rule that jurisdiction, which is the power and authority of the court to
hear, try and decide a case, is conferred by law.16 It may either be over the nature of the action, over the
subject matter, over the person of the defendants or over the issues framed in the pleadings.17 By virtue
of Batas Pambansa (B.P.) Blg. 129 or the Judiciary Reorganization Act of 1980, jurisdiction over special
civil actions for certiorari, prohibition and mandamus is vested in the RTC. Particularly, Section 21(1)
thereof provides that the RTCs shall exercise original jurisdiction –
in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction
which may be enforced in any part of their respective regions. (Emphasis ours)
A.O. No. 7 and Admin. Circular No. 23-2008 was issued pursuant to Section 18 of B.P. Blg. 129, which
gave the Court authority to define the territory over which a branch of the RTC shall exercise its
authority. These administrative orders and circulars issued by the Court merely provide for the venue
where an action may be filed. The Court does not have the power to confer jurisdiction on any court or
tribunal as the allocation of jurisdiction is lodged solely in Congress.18 It also cannot be delegated to
another office or agency of the Government.19 Section 18 of B.P. Blg. 129, in fact, explicitly states that the
territory thus defined shall be deemed to be the territorial area of the branch concerned for purposes of
determining the venue of all suits, proceedings or actions. It was also clarified in Office of the Court
Administrator v. Judge Matas20 that –
Administrative Order No. 3 [defining the territorial jurisdiction of the Regional Trial Courts in the National
Capital Judicial Region] and, in like manner, Circular Nos. 13 and 19, did not per se confer jurisdiction on
the covered regional trial courts or its branches, such that non-observance thereof would nullify their
judicial acts. The administrative order merely defines the limits of the administrative area within which a
branch of the court may exercise its authority pursuant to the jurisdiction conferred by Batas Pambansa
Blg. 129.21
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 47
The RTC need not be reminded that venue relates only to the place of trial or the geographical location in
which an action or proceeding should be brought and does not equate to the jurisdiction of the court. It
is intended to accord convenience to the parties, as it relates to the place of trial, and does not restrict
their access to the courts.22 Consequently, the RTC’s motu proprio dismissal of Civil Case No. 2011-8338
on the ground of lack of jurisdiction is patently incorrect.
At most, the error committed by the petitioners in filing the case with the RTC of Sorsogon was that of
improper venue. A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases (Rules)
specifically states that a special civil action for continuing mandamus shall be filed with the "[RTC]
exercising jurisdiction over the territory where the actionable neglect or omission occurred x x x."23 In
this case, it appears that the alleged actionable neglect or omission occurred in the Municipality of
Matnog and as such, the petition should have been filed in the RTC of Irosin.24 But even then, it does not
warrant the outright dismissal of the petition by the RTC as venue may be waived.25 Moreover, the action
filed by the petitioners is not criminal in nature where venue is an essential element of jurisdiction.26 In
Gomez-Castillo v. Commission on Elections,27 the Court even expressed that what the RTC should have
done under the circumstances was to transfer the case (an election protest) to the proper branch.
Similarly, it would serve the higher interest of justice28 if the Court orders the transfer of Civil Case No.
2011 8338 to the RTC of Irosin for proper and speedy resolution, with the RTC applying the Rules in its
disposition of the case.
At this juncture, the Court affirms the continuing applicability of Admin. Circular No. 23-2008 constituting
the different "green courts" in the country and setting the administrative guidelines in the raffle and
disposition of environmental cases. While the designation and guidelines were made in 2008, the same
should operate in conjunction with the Rules.
A.M. No. 09-6-8-SC: Rules of Procedure for Environmental Cases
In its Resolution dated October 18, 2011, which resolved the petitioners’ motion for reconsideration of
the order of dismissal, the RTC further ruled that the petition was dismissible on the following grounds:
(1) there is no final court decree, order or decision yet that the public officials allegedly failed to act on;
(2) the case was prematurely filed for failure to exhaust administrative remedies; and (3) there was
failure to attach judicial affidavits and furnish a copy of the complaint to the government or appropriate
agency.29 The respondents, and even the Office of the Solicitor General, in behalf of the public
respondents, all concur with the view of the RTC.
The concept of continuing mandamus was first introduced in Metropolitan Manila Development
Authority v. Concerned Residents of Manila Bay.30 Now cast in stone under Rule 8 of the Rules, the writ
of continuing mandamus enjoys a distinct procedure than that of ordinary civil actions for the
enforcement/violation of environmental laws, which are covered by Part II (Civil Procedure). Similar to
the procedure under Rule 65 of the Rules of Court for special civil actions for certiorari, prohibition and
mandamus, Section 4, Rule 8 of the Rules requires that the petition filed should be sufficient in form and
substance before a court may take further action; otherwise, the court may dismiss the petition outright.
Courts must be cautioned, however, that the determination to give due course to the petition or dismiss
it outright is an exercise of discretion that must be applied in a reasonable manner in consonance with
the spirit of the law and always with the view in mind of seeing to it that justice is served.31
Sufficiency in form and substance refers to the contents of the petition filed under Rule 8, Section 1:
When any agency or instrumentality of the government or officer thereof unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station
in connection with the enforcement or violation of an environmental law rule or regulation or a right
therein, or unlawfully excludes another from the use or enjoyment of such right and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file
a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting
evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to do an act or series of acts until the judgment is
fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to
perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain
a sworn certification of non-forum shopping.1âwphi1
On matters of form, the petition must be verified and must contain supporting evidence as well as a
sworn certification of non-forum shopping. It is also necessary that the petitioner must be one who is
aggrieved by an act or omission of the government agency, instrumentality or its officer concerned.
Sufficiency of substance, on the other hand, necessitates that the petition must contain substantive
allegations specifically constituting an actionable neglect or omission and must establish, at the very
least, a prima facie basis for the issuance of the writ, viz: (1) an agency or instrumentality of government
or its officer unlawfully neglects the performance of an act or unlawfully excludes another from the use
or enjoyment of a right; (2) the act to be performed by the government agency, instrumentality or its
officer is specifically enjoined by law as a duty; (3) such duty results from an office, trust or station in
connection with the enforcement or violation of an environmental law, rule or regulation or a right
therein; and (4) there is no other plain, speedy and adequate remedy in the course of law.32
The writ of continuing mandamus is a special civil action that may be availed of "to compel the
performance of an act specifically enjoined by law."33 The petition should mainly involve an
environmental and other related law, rule or regulation or a right therein. The RTC’s mistaken notion on
the need for a final judgment, decree or order is apparently based on the definition of the writ of
continuing mandamus under Section 4, Rule 1 of the Rules, to wit:
(c) Continuing mandamus is a writ issued by a court in an environmental case directing any agency or
instrumentality of the government or officer thereof to perform an act or series of acts decreed by final
judgment which shall remain effective until judgment is fully satisfied. (Emphasis ours)
The final court decree, order or decision erroneously alluded to by the RTC actually pertains to the
judgment or decree that a court would eventually render in an environmental case for continuing
mandamus and which judgment or decree shall subsequently become final.
Under the Rules, after the court has rendered a judgment in conformity with Rule 8, Section 7 and such
judgment has become final, the issuing court still retains jurisdiction over the case to ensure that the
government agency concerned is performing its tasks as mandated by law and to monitor the effective
performance of said tasks. It is only upon full satisfaction of the final judgment, order or decision that a
final return of the writ shall be made to the court and if the court finds that the judgment has been fully
implemented, the satisfaction of judgment shall be entered in the court docket.34 A writ of continuing
mandamus is, in essence, a command of continuing compliance with a final judgment as it "permits the
court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs
mandated under the court’s decision."35
The Court, likewise, cannot sustain the argument that the petitioners should have first filed a case with
the Panel of Arbitrators (Panel), which has jurisdiction over mining disputes under R.A. No. 7942.
Indeed, as pointed out by the respondents, the Panel has jurisdiction over mining disputes.36 But the
petition filed below does not involve a mining dispute. What was being protested are the alleged
negative environmental impact of the small-scale mining operation being conducted by Antones
Enterprises, Global Summit Mines Development Corporation and TR Ore in the Municipality of Matnog;
the authority of the Governor of Sorsogon to issue mining permits in favor of these entities; and the
perceived indifference of the DENR and local government officials over the issue. Resolution of these
matters does not entail the technical knowledge and expertise of the members of the Panel but requires
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 48
an exercise of judicial function. Thus, in Olympic Mines and Development Corp. v. Platinum Group Metals
Corporation,37 the Court stated –
Arbitration before the Panel of Arbitrators is proper only when there is a disagreement between the
parties as to some provisions of the contract between them, which needs the interpretation and the
application of that particular knowledge and expertise possessed by members of that Panel. It is not
proper when one of the parties repudiates the existence or validity of such contract or agreement on the
ground of fraud or oppression as in this case. The validity of the contract cannot be subject of arbitration
proceedings. Allegations of fraud and duress in the execution of a contract are matters within the
jurisdiction of the ordinary courts of law. These questions are legal in nature and require the application
and interpretation of laws and jurisprudence which is necessarily a judicial function.38 (Emphasis supplied
in the former and ours in the latter)
Consequently, resort to the Panel would be completely useless and unnecessary.
The Court also finds that the RTC erred in ruling that the petition is infirm for failure to attach judicial
affidavits. As previously stated, Rule 8 requires that the petition should be verified, contain supporting
evidence and must be accompanied by a sworn certification of non-forum shopping. There is nothing in
Rule 8 that compels the inclusion of judicial affidavits, albeit not prohibited. It is only if the evidence of
the petitioner would consist of testimony of witnesses that it would be the time that judicial affidavits
(affidavits of witnesses in the question and answer form) must be attached to the petition/complaint.39
Finally, failure to furnish a copy of the petition to the respondents is not a fatal defect such that the case
should be dismissed. The RTC could have just required the petitioners to furnish a copy of the petition to
the respondents. It should be remembered that "courts are not enslaved by technicalities, and they have
the prerogative to relax compliance with procedural rules of even the most mandatory character,
mindful of the duty to reconcile both the need to speedily put an end to litigation and the parties’ right
to an opportunity to be heard."40
WHEREFORE, the petition is GRANTED. The Order dated September 16, 2011 and Resolution dated
October 18, 2011 issued by the Regional Trial Court of Sorsogon, Branch 53, dismissing Civil Case No.
2011-8338 are NULLIFIED AND SET ASIDE. The Executive Judge of the Regional Trial Court of Sorsogon is
DIRECTED to transfer the case to the Regional Trial Court of Irosin, Branch 55, for further proceedings
with dispatch. Petitioner Maricris D. Dolot is also ORDERED to furnish the respondents with a copy of the
petition and its annexes within ten (10) days from receipt of this Decision and to submit its Compliance
with the RTC of Irosin.
SO ORDERED.

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 49

G.R. No. 184769               October 5, 2010
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A. SAPITULA, Petitioners,
vs.
ROSARIO GOPEZ LIM, Respondent.
DECISION
CARPIO MORALES, J.:
The Court is once again confronted with an opportunity to define the evolving metes and bounds of the
writ of habeas data. May an employee invoke the remedies available under such writ where an employer
decides to transfer her workplace on the basis of copies of an anonymous letter posted therein ─
imputing to her disloyalty to the company and calling for her to leave, which imputation it investigated
but fails to inform her of the details thereof?
Rosario G. Lim (respondent), also known as Cherry Lim, is an administrative clerk at the Manila Electric
Company (MERALCO).
On June 4, 2008, an anonymous letter was posted at the door of the Metering Office of the
Administration building of MERALCO Plaridel, Bulacan Sector, at which respondent is assigned,
denouncing respondent. The letter reads:
Cherry Lim:
MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON NAMAN AY GUSTO MONG
PALAMON ANG BUONG KUMPANYA SA MGA BUWAYA NG GOBYERNO. KAPAL NG MUKHA MO,
LUMAYAS KA RITO, WALANG UTANG NA LOOB….1
Copies of the letter were also inserted in the lockers of MERALCO linesmen. Informed about it,
respondent reported the matter on June 5, 2008 to the Plaridel Station of the Philippine National Police.2
By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto, Head of MERALCO’s Human Resource
Staffing, directed the transfer of respondent to MERALCO’s Alabang Sector in Muntinlupa as "A/F OTMS
Clerk," effective July 18, 2008 in light of the receipt of "… reports that there were accusations and threats
directed against [her] from unknown individuals and which could possibly compromise [her] safety and
security."
Respondent, by letter of July 10, 2008 addressed to petitioner Ruben A. Sapitula, Vice-President and
Head of MERALCO’s Human Resource Administration, appealed her transfer and requested for a dialogue
so she could voice her concerns and misgivings on the matter, claiming that the "punitive" nature of the
transfer amounted to a denial of due process. Citing the grueling travel from her residence in Pampanga
to Alabang and back entails, and violation of the provisions on job security of their Collective Bargaining
Agreement (CBA), respondent expressed her thoughts on the alleged threats to her security in this wise:
xxxx
I feel that it would have been better . . . if you could have intimated to me the nature of the alleged
accusations and threats so that at least I could have found out if these are credible or even serious. But
as you stated, these came from unknown individuals and the way they were handled, it appears that the
veracity of these accusations and threats to be [sic] highly suspicious, doubtful or are just mere jokes if
they existed at all.
Assuming for the sake of argument only, that the alleged threats exist as the management apparently
believe, then my transfer to an unfamiliar place and environment which will make me a "sitting duck" so
to speak, seems to betray the real intent of management which is contrary to its expressed concern on
my security and safety . . . Thus, it made me think twice on the rationale for management’s initiated
transfer. Reflecting further, it appears to me that instead of the management supposedly extending favor
to me, the net result and effect of management action would be a punitive one.4 (emphasis and
underscoring supplied)
Respondent thus requested for the deferment of the implementation of her transfer pending resolution
of the issues she raised.
No response to her request having been received, respondent filed a petition5 for the issuance of a writ
of habeas data against petitioners before the Regional Trial Court (RTC) of Bulacan, docketed as SP. Proc.
No. 213-M-2008.
By respondent’s allegation, petitioners’ unlawful act and omission consisting of their continued failure
and refusal to provide her with details or information about the alleged report which MERALCO
purportedly received concerning threats to her safety and security amount to a violation of her right to
privacy in life, liberty and security, correctible by habeas data. Respondent thus prayed for the issuance
of a writ commanding petitioners to file a written return containing the following:
a) a full disclosure of the data or information about respondent in relation to the report
purportedly received by petitioners on the alleged threat to her safety and security; the nature
of such data and the purpose for its collection;
b) the measures taken by petitioners to ensure the confidentiality of such data or information;
and
c) the currency and accuracy of such data or information obtained.
Additionally, respondent prayed for the issuance of a Temporary Restraining Order (TRO) enjoining
petitioners from effecting her transfer to the MERALCO Alabang Sector.
By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC directed petitioners to file their verified
written return. And by Order of September 5, 2008, the trial court granted respondent’s application for a
TRO.
Petitioners moved for the dismissal of the petition and recall of the TRO on the grounds that, inter alia,
resort to a petition for writ of habeas data was not in order; and the RTC lacked jurisdiction over the case
which properly belongs to the National Labor Relations Commission (NLRC).7
By Decision8 of September 22, 2008, the trial court granted the prayers of respondent including the
issuance of a writ of preliminary injunction directing petitioners to desist from implementing
respondent’s transfer until such time that petitioners comply with the disclosures required.
The trial court justified its ruling by declaring that, inter alia, recourse to a writ of habeas data should
extend not only to victims of extra-legal killings and political activists but also to ordinary citizens, like
respondent whose rights to life and security are jeopardized by petitioners’ refusal to provide her with
information or data on the reported threats to her person.
Hence, the present petition for review under Rule 45 of 1997 Rules of Civil Procedure and the Rule on the
Writ of Habeas Data9 contending that 1) the RTC lacked jurisdiction over the case and cannot restrain
MERALCO’s prerogative as employer to transfer the place of work of its employees, and 2) the issuance
of the writ is outside the parameters expressly set forth in the Rule on the Writ of Habeas
Data.101avvphi1
Maintaining that the RTC has no jurisdiction over what they contend is clearly a labor dispute, petitioners
argue that "although ingeniously crafted as a petition for habeas data, respondent is essentially
questioning the transfer of her place of work by her employer"11 and the terms and conditions of her
employment which arise from an employer-employee relationship over which the NLRC and the Labor
Arbiters under Article 217 of the Labor Code have jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain the implementation of the
Memorandum transferring respondent’s place of work which is purely a management prerogative, and
that OCA-Circular No. 79-200312 expressly prohibits the issuance of TROs or injunctive writs in labor-
related cases.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 50
Petitioners go on to point out that the Rule on the Writ of Habeas Data directs the issuance of the writ
only against public officials or employees, or private individuals or entities engaged in the gathering,
collecting or storing of data or information regarding an aggrieved party’s person, family or home; and
that MERALCO (or its officers) is clearly not engaged in such activities.
The petition is impressed with merit.
Respondent’s plea that she be spared from complying with MERALCO’s Memorandum directing her
reassignment to the Alabang Sector, under the guise of a quest for information or data allegedly in
possession of petitioners, does not fall within the province of a writ of habeas data.
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee or of a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of the aggrieved party.
(emphasis and underscoring supplied)
The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy,
honor, information, and freedom of information of an individual. It is meant to provide a forum to
enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional
guarantees of a person’s right to life, liberty and security against abuse in this age of information
technology.
It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack
of effective and available remedies, to address the extraordinary rise in the number of killings and
enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or
security as a remedy independently from those provided under prevailing Rules.13
Castillo v. Cruz14 underscores the emphasis laid down in Tapuz v. del Rosario15 that the writs of amparo
and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds
invoked in support of the petitions therefor are vague or doubtful.16 Employment constitutes a property
right under the context of the due process clause of the Constitution.17 It is evident that respondent’s
reservations on the real reasons for her transfer - a legitimate concern respecting the terms and
conditions of one’s employment - are what prompted her to adopt the extraordinary remedy of habeas
data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor Arbiters.
In another vein, there is no showing from the facts presented that petitioners committed any
unjustifiable or unlawful violation of respondent’s right to privacy vis-a-vis the right to life, liberty or
security. To argue that petitioners’ refusal to disclose the contents of reports allegedly received on the
threats to respondent’s safety amounts to a violation of her right to privacy is at best speculative.
Respondent in fact trivializes these threats and accusations from unknown individuals in her earlier-
quoted portion of her July 10, 2008 letter as "highly suspicious, doubtful or are just mere jokes if they
existed at all."18 And she even suspects that her transfer to another place of work "betray[s] the real
intent of management]" and could be a "punitive move." Her posture unwittingly concedes that the issue
is labor-related.
WHEREFORE, the petition is GRANTED. The assailed September 22, 2008 Decision of the Bulacan RTC,
Branch 7 in SP. Proc. No. 213-M-2008 is hereby REVERSED and SET ASIDE. SP. Proc. No. 213-M-2008 is,
accordingly, DISMISSED.
No costs.
SO ORDERED.

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 51

 G.R. No. 203254, October 08, 2014
DR. JOY MARGATE LEE, Petitioner, v. P/SUPT. NERI A. ILAGAN, Respondent.
DECISION
PERLAS-BERNABE, J.:
1 2
Before the Court is a petition for review on certiorari  assailing the Decision  dated August 30, 2012 of
the Regional Trial Court of Quezon City, Branch 224 (RTC) in SP No. 12-71527, which extended the
privilege of the writ of habeas data in favor of respondent Police Superintendent Neri A. Ilagan (Ilagan).
The Facts
In his Petition for Issuance of the Writ of Habeas Data3 dated June 22, 2012, Ilagan alleged that he and
petitioner Dr. Joy Margate Lee (Lee) were former common law partners. Sometime in July 2011, he
visited Lee at the latter’s condominium, rested for a while and thereafter,proceeded to his office. Upon
arrival, Ilagan noticed that his digital camera was missing.4 On August 23, 2011, Lee confronted Ilagan at
the latter’s office regarding a purported sex video (subject video) she discovered from the aforesaid
camera involving Ilagan and another woman.  Ilagan denied the video and demanded Lee to return the
camera, but to no avail.5  During the confrontation, Ilagan allegedly slammed Lee’s head against a wall
inside his office and walked away.6Subsequently, Lee utilized the said video as evidence in filing various
complaints against Ilagan, namely: (a) a criminal complaint for violation of Republic Act No.
9262,7otherwise known as the “Anti-Violence Against Women and Their Children Act of 2004,” before
the Office of the City Prosecutor of Makati; and (b) an administrative complaint for grave misconduct
before the National Police Commission (NAPOLCOM).8  Ilagan claimed that Lee’s acts of reproducing the
subject video and threatening to distribute the same to the upper echelons of the NAPOLCOM and
uploading it to the internet violated not only his right to life, liberty, security, and privacy but also that of
the other woman, and thus, the issuance of a writ of habeas data in his favor is warranted.9
Finding the petition prima facie meritorious, the RTC issued a Writ of Habeas Data10 dated June 25, 2012,
directing Lee to appear before the court a quo, and to produce Ilagan’s digital camera, as well as the
negative and/or original of the subject video and copies thereof, and to file a verified written return
within five (5) working days from date of receipt thereof.
In her Verified Return11 dated July 2, 2012, Lee admitted that she indeed kept the memory card of the
digital camera and reproduced the aforesaid video but averred that she only did so to utilize the same as
evidence in the cases she filed against Ilagan. She also admitted that her relationship with Ilagan started
sometime in 2003 and ended under disturbing circumstances in August 2011, and that she only
happened to discover the subject video when Ilagan left his camera in her condominium. Accordingly,
Lee contended that Ilagan’s petition for the issuance of the writ of habeas data should be dismissed
because: (a) its filing was only aimed at suppressing the evidence against Ilagan in the cases she filed;
and (b) she is not engaged in the gathering, collecting, or storing of data regarding the person of Ilagan.12
The RTC Ruling
In a Decision13 dated August 30, 2012, the RTC granted the privilege of the writ of habeas data in Ilagan’s
favor, and accordingly, ordered the implementing officer to turn-over copies of the subject video to him,
and enjoined Lee from further reproducing the same.14
The RTC did not give credence to Lee’s defense that she is not engaged in the gathering, collecting or
storing of data regarding the person of Ilagan, finding that her acts of reproducing the subject video and
showing it to other people, i.e., the NAPOLCOM officers, violated the latter’s right to privacy in life and
caused him to suffer humiliation and mental anguish. In this relation, the RTC opined that Lee’s use of the
subject video as evidence in the various cases she filed against Ilagan is not enough justification for its
reproduction. Nevertheless, the RTC clarified that it is only ruling on the return of the aforesaid video and
not on its admissibility before other tribunals.15
Dissatisfied, Lee filed this petition.
The Issue Before the Court
The essential issue for the Court’s resolution is whether or not the RTC correctly extended the privilege
of the writ of habeas data in favor of Ilagan.
The Court’s Ruling
The petition is meritorious.
A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data (Habeas Data  Rule), was conceived as a
response, given the lack of effective and available remedies, to address the extraordinary rise in the
number of killings and enforced disappearances.16 It was conceptualized as a judicial remedy enforcing
the right to privacy, most especially the right to informational privacy of individuals,17 which is defined
as “the right to control the collection, maintenance, use, and dissemination of data about oneself.”18
As defined in Section 1 of the Habeas Data Rule, the writ of  habeas data now stands as “a remedy
available to any person whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual or entity engaged in
the gathering, collecting or storing of data or information regarding the person, family, home, and
correspondence of the aggrieved party.”  Thus, in order to support a petition for the issuance of such
writ, Section 6 of the Habeas Data Rule essentially requires that the petition sufficiently alleges, among
others, “[t]he manner the right to privacy is violated or threatened and how it affects the right to life,
liberty or security of the aggrieved party.” In other words, the petition must adequately show that there
exists a nexus between the right to privacy on the one hand, and the right to life, liberty or security on
the other .19 Corollarily, the allegations in the petition must be supported by substantial
evidence showing an actual or threatened violation of the right to privacy in life, liberty or security of the
victim.20 In this relation, it bears pointing out that the writ of habeas data will not issue to protect purely
property or commercial concerns nor when the grounds invoked in support of the petitions therefor are
vague and doubtful.21
In this case, the Court finds that Ilagan was not able to sufficiently allege that his right to privacy in life,
liberty or security was or would be violated through the supposed reproduction and threatened
dissemination of the subject sex video. While Ilagan purports a privacy interest in the suppression of this
video – which he fears would somehow find its way to Quiapo or be uploaded in the internet for public
consumption – he failed to explain the connection between such interest and any violation of his right to
life, liberty or security. Indeed, courts cannot speculate or contrive versions of possible transgressions. As
the rules and existing jurisprudence on the matter evoke, alleging and eventually proving the nexus
between one’s privacy right to the cogent rights to life, liberty or security are crucial in habeas
data cases, so much so that a failure on either account certainly renders a  habeas data petition
dismissible, as in this case.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 52
In fact, even discounting the insufficiency of the allegations, the petition would equally be dismissible
due to the inadequacy of the evidence presented. As the records show, all that Ilagan submitted in
support of his petition was his self-serving testimony which hardly meets the substantial evidence
requirement as prescribed by the Habeas Data Rule. This is because nothing therein would indicate that
Lee actually proceeded to commit any overt act towards the end of violating Ilagan’s right to privacy in
life, liberty or security. Nor would anything on record even lead a reasonable mind to conclude22 that Lee
was going to use the subject video in order to achieve unlawful ends – say for instance, to spread it to
the public so as to ruin Ilagan’s reputation.  Contrastingly, Lee even made it clear in her testimony that
the only reason why she reproduced the subject video was to legitimately utilize the same as evidence in
the criminal and administrative cases that she filed against Ilagan.23  Hence, due to the insufficiency of
the allegations as well as the glaring absence of substantial evidence, the Court finds it proper to reverse
the RTC Decision and dismiss the habeas data petition.

WHEREFORE, the petition is GRANTED. The Decision dated August 30, 2012 of the Regional Trial Court of
Quezon City, Branch 224 in SP No. 12-71527is hereby REVERSED and SET ASIDE. Accordingly, the Petition
for Issuance of the Writ of Habeas Data filed by respondent P/Supt. Neri A. Ilagan is DISMISSED for lack
of merit.

SO ORDERED.

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 53

G.R. No. 206510               September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S.
INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan,
HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A
Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno,
JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN A.
GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity as
Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the
President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON
JESUS P. P AJE, Secretary, Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE
LUIS M. ALANO, Philippine Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL
RODOLFO D. ISO RENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of
Armed Forces of the Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces.
Pacific and Balikatan 2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the
Rules of Procedure for Environmental Cases (Rules), involving violations of environmental laws and
regulations in relation to the grounding of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which
means "long reef exposed at low tide." Tubbataha is composed of two huge coral atolls - the north atoll
and the south atoll - and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of
the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote island
municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by
President Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150
kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global
center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as one of the Philippines' oldest ecosystems,
containing excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare
protected marine park is also an important habitat for internationally threatened and endangered
marine species. UNESCO cited Tubbataha's outstanding universal value as an important and significant
natural habitat for in situ conservation of biological diversity; an example representing significant on-
going ecological and biological processes; and an area of exceptional natural beauty and aesthetic
importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha
Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of the globally
significant economic, biological, sociocultural, educational and scientific values of the Tubbataha Reefs
into perpetuity for the enjoyment of present and future generations." Under the "no-take" policy, entry
into the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or
fined, including fishing, gathering, destroying and disturbing the resources within the TRNP. The law
likewise created the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the
US Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter and exit the
territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic
Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1âwphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No cine
was injured in the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the
incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a
meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the
grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the United States will
provide appropriate compensation for damage to the reef caused by the ship."6 By March 30, 2013, the
US Navy-led salvage team had finished removing the last piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective
sector/organization and others, including minors or generations yet unborn, filed the present petition
agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as
Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific
and Balikatan 2013 Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A Secretary Albert F.
Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of
National Defense), Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-
Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-
Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine
respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause
and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan,
Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful ecology. They
also seek a directive from this Court for the institution of civil, administrative and criminal suits for acts
committed in violation of environmental laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to the reef (Section 20); and destroying and disturbing
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 54
resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting Forces
Agreement (VFA) which they want this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court: 1.
Immediately issue upon the filing of this petition a Temporary Environmental Protection Order (TEPO)
and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all operations
over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an additional
buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the
absence of clear guidelines, duties, and liability schemes for breaches of those duties, and
require Respondents to assume responsibility for prior and future environmental damage in
general, and environmental damage under the Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and indigenous communities near or around the TRNP
but away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of the
Court;
3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v.
Romulo, "to forthwith negotiate with the United States representatives for the appropriate
agreement on [environmental guidelines and environmental accountability] under Philippine
authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal
proceedings against erring officers and individuals to the full extent of the law, and to make
such proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction
over erring U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of all
meritorious claims for damages caused to the Tubbataha Reef on terms and conditions no less
severe than those applicable to other States, and damages for personal injury or death, if such
had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the
collection and production of evidence, including seizure and delivery of objects connected with
the offenses related to the grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify each other of the
disposition of all cases, wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post
salvage plan or plans, including cleanup plans covering the damaged area of the Tubbataha Reef
absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the
Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust
Fund defined under Section 17 of RA 10067 as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding
of the Guardian in light of Respondents' experience in the Port Royale grounding in 2009, among
other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the name of
transparency and accountability such environmental damage assessment, valuation, and
valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide scientific and technical support to
the TPAMB;
m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces Agreement and
the Mutual Defense Treaty to consider whether their provisions allow for the exercise of erga
omnes rights to a balanced and healthful ecology and for damages which follow from any
violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the
damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the
Visiting Forces Agreement unconstitutional for violating equal protection and/or for violating
the preemptory norm of nondiscrimination incorporated as part of the law of the land under
Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation measures and such other reliefs as
are just and equitable under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion
for early resolution and motion to proceed ex parte against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and ocular inspection and
production orders, respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or
writ of Kalikasan have become fait accompli as the salvage operations on the USS Guardian were already
completed; (2) the petition is defective in form and substance; (3) the petition improperly raises issues
involving the VFA between the Republic of the Philippines and the United States of America; and ( 4) the
determination of the extent of responsibility of the US Government as regards the damage to the
Tubbataha Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present
petition.
Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it is "a
party's personal and substantial interest in a case where he has sustained or will sustain direct injury as a
result" of the act being challenged, and "calls for more than just a generalized grievance."11 However, the
rule on standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject
matter of the controversy is of transcendental importance, of overreaching significance to society, or of
paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a
balanced and healthful ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law." We declared that the right to a balanced and healthful ecology
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 55
need not be written in the Constitution for it is assumed, like other civil and polittcal rights guaranteed in
the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance
with intergenerational implications.1âwphi1 Such right carries with it the correlative duty to refrain from
impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not
only do ordinary citizens have legal standing to sue for the enforcement of environmental rights, they
can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be
based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of
nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to
the end that their exploration, development and utilization be equitably accessible to the present a:: well
as future generations. Needless to say, every generation has a responsibility to the next to preserve that
rhythm and harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little differently,
the minors' assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to
come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet
unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The
provision on citizen suits in the Rules "collapses the traditional rule on personal and direct interest, on
the principle that humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more fundamental question of whether this
Court has jurisdiction over the US respondents who did not submit any pleading or manifestation in this
case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability
of the State,17 is expressly provided in Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as
follows:
The rule that a state may not be sued without its consent, now · expressed in Article XVI, Section 3, of the
1987 Constitution, is one of the generally accepted principles of international law that we have adopted
as part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by Justice
Holmes that ''there can be no legal right against the authority which makes the law on which the right
depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical reasons for the enforcement
of the doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the
added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign
equals and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a
celebrated case, "unduly vex the peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable
to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. The rule is that if the judgment against such officials will require the state itself to perform
an affirmative act to satisfy the same,. such as the appropriation of the amount needed to pay the
damages awarded against them, the suit must be regarded as against the state itself although it has not
been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state may move
to dismiss the comp.taint on the ground that it has been filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states
from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign
from suit and, with the emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its sovereign capacity. If the
acts giving rise to a suit arc those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by
the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is
believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim -par in parem, non habet imperium
-that all states are soverr~ign equals and cannot assert jurisdiction over one another. The implication, in
broad terms, is that if the judgment against an official would rec 1uire the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being against the state itself, although it has not been
formally impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an
immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is,
rather, an immunity from the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino
employed at Clark Air Base who was arrested following a buy-bust operation conducted by two officers
of the US Air Force, and was eventually dismissed from his employment when he was charged in court
for violation of R.A. No. 6425. In a complaint for damages filed by the said employee against the military
officers, the latter moved to dismiss the case on the ground that the suit was against the US Government
which had not given its consent. The RTC denied the motion but on a petition for certiorari and
prohibition filed before this Court, we reversed the RTC and dismissed the complaint. We held that
petitioners US military officers were acting in the exercise of their official functions when they conducted
the buy-bust operation against the complainant and thereafter testified against him at his trial. It follows
that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the courts of another
State without the former's consent or waiver has evolved into a restrictive doctrine which distinguishes
sovereign and governmental acts (Jure imperil") from private, commercial and proprietary acts (Jure
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 56
gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts Jure imperii.
The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:
It is a different matter where the public official is made to account in his capacity as such for acts contrary
to law and injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the
Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal
acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an
action against the officials or officers by one whose rights have been invaded or violated by such acts, for
the protection of his rights, is not a suit against the State within the rule of immunity of the State from
suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the
director of a State department on the ground that, while claiming to act for the State, he violates or
invades the personal and property rights of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will
not apply and may not be invoked where the public official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the
government is removed the moment they are sued in their individual capacity. This situation usually
arises where the public official acts without authority or in excess of the powers vested in him. It is a
well-settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope
of his authority or jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued in their
official capacity as commanding officers of the US Navy who had control and supervision over the USS
Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they we:re performing official military duties. Considering
that the satisfaction of a judgment against said officials will require remedial actions and appropriation of
funds by the US government, the suit is deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents Swift,
Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of
the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused
damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that while historically, warships enjoy
sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail to comply with the rules and regulations of the coastal
State regarding passage through the latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-
standing policy the US considers itself bound by customary international rules on the "traditional uses of
the oceans" as codified in UNCLOS, as can be gleaned from previous declarations by former Presidents
Reagan and Clinton, and the US judiciary in the case of United States v. Royal Caribbean Cruise Lines,
Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law, regulating the relations of states with respect
to the uses of the oceans."28 The UNCLOS is a multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into
force on November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high seas (mare liberum).29 The freedom to use the world's
marine waters is one of the oldest customary principles of international law.30 The UNCLOS gives to the
coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also
gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is
located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air space
over the territorial sea as well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity
subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning passage
through the territorial sea and disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage through the territorial sea or with
the provisions of this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for non-commercial
purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in which the above provisions may apply. But what
if the offending warship is a non-party to the UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this
the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S.
delegation ultimately voted against and refrained from signing it due to concerns over deep seabed
mining technology transfer provisions contained in Part XI. In a remarkable, multilateral effort to induce
U.S. membership, the bulk of UNCLOS member states cooperated over the succeeding decade to revise
the objection.able provisions. The revisions satisfied the Clinton administration, which signed the revised
Part XI implementing agreement in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and
the Part XI implementing agreement to the Senate requesting its advice and consent. Despite consistent
support from President Clinton, each of his successors, and an ideologically diverse array of stakeholders,
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 57
the Senate has since withheld the consent required for the President to internationally bind the United
States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th
Congresses, its progress continues to be hamstrung by significant pockets of political ambivalence over
U.S. participation in international institutions. Most recently, 111 th Congress SFRC Chairman Senator
John Kerry included "voting out" UNCLOS for full Senate consideration among his highest priorities. This
did not occur, and no Senate action has been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983
that the US will "recognize the rights of the other , states in the waters off their coasts, as reflected in the
convention [UNCLOS], so long as the rights and freedom of the United States and others under
international law are recognized by such coastal states", and President Clinton's reiteration of the US
policy "to act in a manner consistent with its [UNCLOS] provisions relating to traditional uses of the
oceans and to encourage other countries to do likewise." Since Article 31 relates to the "traditional uses
of the oceans," and "if under its policy, the US 'recognize[s] the rights of the other states in the waters off
their coasts,"' Justice Carpio postulates that "there is more reason to expect it to recognize the rights of
other states in their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS
was centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI) which considers
the oceans and deep seabed commonly owned by mankind," pointing out that such "has nothing to do
with its [the US'] acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the
ratification of the UNCLOS, as shown by the following statement posted on its official website:
The Convention is in the national interest of the United States because it establishes stable maritime
zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit passage,
and archipelagic sea lanes passage rights; works against "jurisdictiomtl creep" by preventing coastal
nations from expanding their own maritime zones; and reaffirms sovereign immunity of warships,
auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by enhancing the ability
of the US to assert its sovereign rights over the resources of one of the largest continental shelves in the
world. Further, it is the Law of the Sea Convention that first established the concept of a maritime
Exclusive Economic Zone out to 200 nautical miles, and recognized the rights of coastal states to
conserve and manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that the
US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial
sea. We thus expect the US to bear "international responsibility" under Art. 31 in connection with the
USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine
that our long-time ally and trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to compensate the damage caused
by its warship while transiting our internal waters. Much less can we comprehend a Government
exercising leadership in international affairs, unwilling to comply with the UNCLOS directive for all
nations to cooperate in the global task to protect and preserve the marine environment as provided in
Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through
competent international organizations, in formulating and elaborating international rules, standards and
recommended practices and procedures consistent with this Convention, for the protection and
preservation of the marine environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the
said treaty upholds the immunity of warships from the jurisdiction of Coastal States while navigating
the.latter's territorial sea, the flag States shall be required to leave the territorial '::;ea immediately if
they flout the laws and regulations of the Coastal State, and they will be liable for damages caused by
their warships or any other government vessel operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke
federal statutes in the US under which agencies of the US have statutorily waived their immunity to any
action. Even under the common law tort claims, petitioners asseverate that the US respondents are liable
for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Philippines to promote "common security interests" between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of military personnel, and further defines the rights of
the United States and the Philippine government in the matter of criminal jurisdiction, movement of
vessel and aircraft, importation and exportation of equipment, materials and supplies.36 The invocation of
US federal tort laws and even common law is thus improper considering that it is the VF A which governs
disputes involving US military ships and crew navigating Philippine waters in pursuance of the objectives
of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to
special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case against a person charged with a
violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of kalikasan
shall not preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of criminal
jurisdiction provisions of the VF A to US personnel who may be found responsible for the grounding of
the USS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan. We
also find it unnecessary at this point to determine whether such waiver of State immunity is indeed
absolute. In the same vein, we cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including the collection of administrative
fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the criminal action
charging the same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of
Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court
shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting
the performance of a duty in violation of environmental laws resulting in environmental
destruction or damage;
(b) Directing the respondent public official, govemment agency, private person or entity to
protect, preserve, rehabilitate or restore the environment;
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 58
 (c) Directing the respondent public official, government agency, private person or entity to
monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to
make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology
or to the protection, preservation, rehabilitation or restoration of the environment, except the
award of damages to individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become moot in the
sense that the salvage operation sought to be enjoined or restrained had already been accomplished
when petitioners sought recourse from this Court. But insofar as the directives to Philippine respondents
to protect and rehabilitate the coral reef stn icture and marine habitat adversely affected by the
grounding incident are concerned, petitioners are entitled to these reliefs notwithstanding the
completion of the removal of the USS Guardian from the coral reef. However, we are mindful of the fact
that the US and Philippine governments both expressed readiness to negotiate and discuss the matter of
compensation for the damage caused by the USS Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the extent of the damage and appropriate
methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be
gleaned from the following provisions, mediation and settlement are available for the consideration of
the parties, and which dispute resolution methods are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the
parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or their
counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for purposes of
mediation. If not available, the court shall refer the case to the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of
referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial.
Before the scheduled date of continuance, the court may refer the case to the branch clerk of court for a
preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under
oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The
judge may issue a consent decree approving the agreement between the parties in accordance with law,
morals, public order and public policy to protect the right of the people to a balanced and healthful
ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle
in accordance with law at any stage of the proceedings before rendition of judgment. (Underscoring
supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port
Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four
days. After spending $6.5 million restoring the coral reef, the US government was reported to have paid
the State of Hawaii $8.5 million in settlement over coral reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate compensation for the damage
caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the formation
of a US interdisciplinary scientific team which will "initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in Tubbataha, based on assessments by Philippine-
based marine scientists." The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate Philippine government entities, non-
governmental organizations, and scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief
that may be obtained under a judgment rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which
shall include the protection, preservation or rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the environment, the costs of which shall be borne by the
violator, or to contribute to a special trust fund for that purpose subject to the control of the
court.1âwphi1
In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our
relations with another State in the context of common security interests under the VFA. It is settled that
"[t]he conduct of the foreign relations of our government is committed by the Constitution to the
executive and legislative-"the political" --departments of the government, and the propriety of what may
be done in the exercise of this political power is not subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of
the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred in
by the Philippine Senate and has been recognized as a treaty by the United States as attested and
certified by the duly authorized representative of the United States government. The VF A being a valid
and binding agreement, the parties are required as a matter of international law to abide by its terms
and provisions.42 The present petition under the Rules is not the proper remedy to assail the
constitutionality of its provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ
of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 59
G.R. No. 207257               February 3, 2015
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES (DENR), Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO
PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS,
GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON,
REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE
LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, Respondents.
x-----------------------x
G.R. No. 207276
REDONDO PENINSULA ENERGY, INC., Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO
PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS,
GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON,
REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE
LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, RAMON JESUS P. PAJE, in his
capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND
SUBIC BAY METROPOLITAN AUTHORITY, Respondents.
x-----------------------x
G.R. No. 207282
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. EMERENCIANA A. DE JESUS,
CLEMENTE G. BAUTISTA, JR., HON. RAFAEL V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO
PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS,
GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSA, RODOLFO SAMBAJON,
ET AL., Petitioners,
vs.
RAMON JESUS P. PAJE in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, SUBIC BAY METROPOLITAN AUTHORITY, AND REDONDO PENINSULA ENERGY,
INC., Respondents.
x-----------------------x
G.R. No. 207366
SUBIC BAY METROPOLITAN AUTHORITY, Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, HON. ROLEN C. PAULINO, HON EDUARDO PIANO, HON. JAMES DE LOS
REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANOGARCIA, NORAIDA
VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO LLORCA MAGDARAOG, RUBELHPERALTA, ALEX
CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A.
BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE·LATINAZO, EV ANGELINE Q. RODRIGUEZ, JOHN
CARLO DELOS REYES, HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT
OF ENVIRONMENT AND NATURAL RESOURCES AND REDONDO PENINSULA ENERGY, INC., Respondents.
DECISION
DEL CASTILLO, J.:
Before this Court are consolidated Petitions for Review on Certiorari1 assailing the Decision2 dated
January 30, 2013 and the Resolution3 dated May 22, 2013 of the Court of Appeals (CA) in CA-G.R. SP No.
00015, entitled "Hon. Teodoro A. Casiño, et al. v. Hon. Ramon Jesus P. Paje, et al."
Factual Antecedents
In February 2006, Subic Bay Metropolitan Authority· (SBMA), a government agency organized and
established under Republic Act No. (RA) 7227,4 and Taiwan Cogeneration Corporation (TCC) entered into
a Memorandum of Understanding (MOU) expressing their intention to build a power plant in Subic Bay
which would supply reliable and affordable power to Subic Bay Industrial Park (SBIP).5
On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC undertook to build and
operatea coal-fired power plant.6 In the said MOU, TCC identified 20 hectares of land at SitioNaglatore,
Mt. Redondo, Subic Bay Freeport Zone (SBFZ) as the suitable area for the project and another site of
approximately 10 hectares tobe used as an ash pond.7 TCC intends to lease the property from SBMA for a
term of 50 years with rent fixed at$3.50 per square meter, payable in 10 equal 5-year installments.8
On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Compliance Certificate (ECC) No.
EC-SBFZ-ECC-69-21-500 in favor of Taiwan Cogeneration International Corporation (TCIC), a subsidiary of
TCC,9 for the construction, installation,and operation of 2x150-MW Circulating Fluidized Bed (CFB) Coal-
Fired Thermal Power Plant at Sitio Naglatore.10
On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July 28, 2006 to Redondo
Peninsula Energy, Inc. (RP Energy),11 a corporation duly organized and existing under the laws of the
Philippines with the primary purpose of building, owning, and operating powerplants in the Philippines,
among others.12 Accordingly, an Addendum to the said MOU was executed by SBMA and RP Energy.13
RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Environmental Impact Statement (EIS) for
the proposed coal-fired power plant and to assist RP Energy in applying for the issuance ofan ECC from
the Department of Environment and Natural Resources (DENR).14 On August 27, 2008, the Sangguniang
Panglungsodof Olongapo City issued Resolution No. 131, Series of 2008, expressing the city government’s
objection to the coal-fired power plant as an energy source and urging the proponent to consider safer
alternative sources ofenergy for Subic Bay.15
On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr., issued an ECC for the
proposed 2x150-MW coal-fired power plant.16
Sometime thereafter, RP Energy decided to include additional components in its proposed coal-fired
power plant. Due to the changes in the project design, which involved the inclusion of a barge wharf,
seawater intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel
improvement, and a 230kV double-circuit transmission line,17 RP Energy requested the DENR
Environmental Management Bureau(DENR-EMB) to amend its ECC.18 In support of its request, RP Energy
submitted to the DENR-EMBan Environmental Performance Report and Management Plan (EPRMP),
which was prepared by GHD.19
On June 8, 2010, RP Energy and SBMA entered into a Lease and Development Agreement (LDA) over a
380,004.456-square meter parcel of land to be used for building and operating the coal-fired power
plant.20
On July 8, 2010, the DENR-EMBissued an amended ECC (first amendment) allowing the inclusion
ofadditional components, among others.21
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 60
Several months later, RP Energy again requested the DENR-EMB to amend the ECC.22 Instead of
constructing a 2x150-MW coal-fired power plant, as originally planned, it now sought toconstruct a
1x300-MWcoal-fired power plant.23 In support of its request, RP Energy submitted a Project Description
Report (PDR) to the DENR-EMB.24
On May 26, 2011, the DENR-EMB granted the request and further amended the ECC (second
amendment).25
On August 1, 2011, the Sangguniang Panglalawiganof Zambales issued Resolution No. 2011-149,
opposing the establishment of a coal-fired thermal power plant at SitioNaglatore, Brgy. Cawag, Subic,
Zambales.26
On August 11, 2011, the Liga ng mga Barangayof Olongapo City issued Resolution No. 12, Series of 2011,
expressing its strong objection to the coal-fired power plant as an energy source.27
On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon. Rafael V. Mariano, Hon.
Emerenciana A. De Jesus, Clemente G. Bautista, Jr., Hon. Rolen C. Paulino,Hon. Eduardo Piano, Hon.
James de los Reyes, Hon. Aquilino Y. Cortez, Jr., Hon. Sarah Lugerna Lipumano-Garcia, Noraida
Velarmino, Bianca Christine Gamboa Espinos, Charo Simons, Gregorio Llorca Magdaraog, Rubelh Peralta,
Alex Corpus Hermoso,Rodolfo Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy, Ofelia D.
Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and John Carlo delos Reyes (Casiño Group)
filed before this Court a Petition for Writ of Kalikasan against RP Energy, SBMA, and Hon. Ramon Jesus P.
Paje, in his capacity as Secretary of the DENR.28
On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of Kalikasan; and (2) refer the
case to the CA for hearing and reception of evidence and rendition of judgment.29 While the case was
pending, RP Energy applied for another amendment to its ECC (third amendment) and submitted another
EPRMP to the DENR-EMB, proposing the construction and operation of a 2x300-MW coal-fired power
plant.30
On September 11, 2012, the Petition for Writ of Kalikasanwas docketed as CA-G.R. SP No. 00015 and
raffled to the Fifteenth Division of the CA.31 In the Petition, the Casiño Group alleged, among others, that
the power plant project would cause grave environmental damage;32 that it would adversely affect the
health of the residents of the municipalities of Subic,Zambales, Morong, Hermosa, and the City of
Olongapo;33 that the ECC was issued and the LDA entered into without the prior approval of the
concerned sanggunians as required under Sections 26 and 27 of the Local Government Code (LGC);34 that
the LDA was entered into without securing a prior certification from the National Commission on
Indigenous Peoples (NCIP) as required under Section 59 of RA8371 or the Indigenous Peoples’ Rights Act
of 1997 (IPRA Law);35 that Section 8.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30) which
allowsamendments of ECCs is ultra viresbecause the DENR has no authority to decide on requests for
amendments of previously issued ECCs in the absence of a new EIS;36 and that due to the nullity of
Section 8.3 of DAO 2003-30, all amendments to RP Energy’s ECC are null and void.37
On October 29, 2012, the CA conducted a preliminary conference wherein the parties, with their
respective counsels, appeared except for Hon. Teodoro A. Casiño, Hon. Rafael V. Mariano, Hon.
Emerencia A. De Jesus, Clemente G. Bautista, Mario Esquillo, Elle Latinazo,Evangeline Q. Rodriguez, and
the SBMA.38 The matters taken up during the preliminary conference were embodied in the CA’s
Resolution dated November 5, 2012, to wit:
I. ISSUES
A. Petitioners (Casiño Group)
1. Whether x x x the DENR Environmental Compliance Certificate (‘ECC’ x x x) in favor of RP
Energy for a 2x150 MW Coal-Fired Thermal Power Plant Project (‘Power Plant,’ x x x ) and its
amendment to 1x300 MW Power Plant, and the Lease and Development Agreement between
SBMA and RP Energy complied with the Certification Precondition as required under Section 59
of Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 (‘IPRA Law,’ x x x);
2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 MW
Power Plant without prior consultation with and approval of the concerned local government
units (‘LGUs,’ x x x ), pursuant to Sections 26 and 27 of Republic Act No. 7160 or the Local
Government Code;
3. Whether x x x Section 8.3 of DENRAdministrative Order No. 2003-30 (‘DAO No. 2003-30,’ x x
x ) providing for the amendment of an ECC is null and void for being ultra vires; and
4. Whether x x x the amendment of RPEnergy’s ECC under Section 8.3 of DAO No. 2003-30 is null
and void.
B. Respondent RP Energy
1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;
1.1 Whether x x x the same is valid until annulled;
2. Whether x x x petitioners exhausted their administrative remedies with respect to the
amended ECC for the 1x300 MW Power Plant;
2.1 Whether x x x the instant Petition is proper;
3. Whether x x x RP Energycomplied with all the procedures/requirements for the issuance of
the DENR ECC and its amendment;
3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on
Indigenous Peoples is applicable in the instant case;
4. Whether x x x the LGU’s approval under Sections 26 and 27 of the Local Government Code is
necessaryfor the issuance of the DENR ECC and its amendments, and what constitutes LGU
approval;
5. Whether x x x there is a threatened or actual violation of environmental laws to justify the
Petition;
5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted
legal standards on thermal pollution of coastal waters, air pollution, water pollution,
and acid deposits on aquatic and terrestrial ecosystems; and
6. Whether x x x the instant Petition should be dismissed for failure to comply with the
requirements of properverification and certification of nonforum shopping with respect to some
petitioners.
C. Respondent DENR Secretary Paje
1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy requires
compliance with Section 59 of the IPRA Law, as well as Sections 26 and 27 of the Local
Government Code;
2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this proceeding;
and
3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.
II. ADMISSIONS/DENIALS
Petitioners, through Atty. Ridon, admittedall the allegations in RP Energy’s Verified Return, except the
following:
1. paragraphs 1.4 to 1.7;
2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37.
Petitioners made no specific denial withrespect to the allegations of DENR Secretary Paje’s Verified
Return. x x x
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 61
Respondent RP Energy proposed the following stipulations, which were all admitted by petitioners,
through Atty. Ridon, viz:
1. The 1x300 MW Power Plant is not yet operational;
2. At present, there is no environmental damage;
3. The 1x300 MW Power Plant project is situated within the Subic Special Economic Zone; and
4. Apart from the instant case, petitioners have not challenged the validity of Section 8.3 of DAO
No. 2003-30.
Public respondent DENR Secretary Paje did not propose any matter for stipulation.39
Thereafter, trial ensued.
The Casiño Group presented three witnesses, namely: (1) Raymond V. Palatino, a two-term
representativeof the KabataanPartylist in the House of Representatives;40 (2) Alex C. Hermoso, the
convenor of the Zambales-Olongapo City Civil Society Network,a director of the PREDA41 Foundation, and
a member of the Zambales Chapter of the Kaya NatinMovement and the Zambales Chapter of the People
Power Volunteers for Reform;42 and (3) Ramon Lacbain, the ViceGovernor of the Province of Zambales.43
RP Energy presented five witnesses,namely: (1) JunisseP. Mercado (Ms. Mercado), an employee of GHD
and the Project Directorof ongoing projects for RP Energy regarding the proposed power plant
project;44 (2) Juha Sarkki (Engr. Sarkki), a Master of Science degree holder inChemical Engineering;45 (3)
Henry K. Wong, a degree holder of Bachelor of Science Major in Mechanical Engineering from Worcester
Polytechnic Institute;46 (4) Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed Chemical Engineer, Sanitary
Engineer, and Environmental Planner in the Philippines;47 and (5) David C. Evangelista (Mr. Evangelista), a
Business Development Analyst working for RP Energy.48
SBMA, for its part, presented its Legal Department Manager, Atty. Von F. Rodriguez (Atty. Rodriguez).49
The DENR, however, presented no evidence.50
Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued in connection with RP
Energy’s application for the 2x300-MW coal-fired power plant.51
On November 15, 2012, the DENR-EMB granted RP Energy’s application for the third amendment to its
ECC, approving the construction and operation of a 2x300-MW coal-fired power plant, among others.52
Ruling of the Court of Appeals
On January 30, 2013, the CA rendereda Decision denying the privilege of the writ of kalikasanand the
application for an environment protection order due to the failure of the Casiño Group to prove that its
constitutional right to a balanced and healthful ecology was violated or threatened.53 The CA likewise
found no reason to nullify Section 8.3 ofDAO No. 2003-30. It said that the provision was not ultra vires,as
the express power of the Secretary of the DENR, the Director and Regional Directors of the EMB to issue
an ECC impliedly includes the incidental power to amend the same.54 In any case, the CA ruled that the
validity of the said section could not becollaterally attacked in a petition for a writ of kalikasan.55
Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008 for non-compliance with
Section 59 of the IPRA Law56 and Sections 26 and 27 of the LGC57 and for failure of Luis Miguel Aboitiz
(Mr. Aboitiz), Director of RP Energy, to affix his signature in the Sworn Statement of Full Responsibility,
which is an integral part of the ECC.58 Also declared invalid were the ECC first amendment dated July 8,
2010 and the ECC second amendment dated May 26, 2011 in view of the failure of RP Energy to comply
with the restrictions set forth in the ECC, which specifically require that "any expansion of the project
beyond the project description or any change in the activity x x x shall be subject to a new Environmental
Impact Assessment."59 However, as to the ECC third amendment dated November 15, 2012, the CA
decided not to rule on its validity since it was not raised as an issue during the preliminary conference.60
The CA also invalidated the LDA entered into by SBMA and RP Energy as it was issued without the prior
consultation and approval of all the sanggunians concerned as required under Sections 26 and 27 of the
LGC,61 and in violation of Section 59, Chapter VIII ofthe IPRA Law, which enjoins all departments and
other governmental agencies from granting any lease without a prior certification that the area affected
does not overlap with any ancestral domain.62 The CA noted that no CNO was secured from the NCIP
prior to the execution of the LDA,63 and that the CNO dated October 31, 2012 was secured during the
pendency of the case and was issued in connection with RP Energy’s application for a 2x300-MW
coalfired power plant.64
Thus, the CA disposed of the case in this wise:
WHEREFORE, premises considered, judgment is hereby rendered DENYING the privilege of the writ of
kalikasan and the application for an environmental protection order. The prayer to declare the nullity of
Section 8.3 of the DENR Administrative Order No. 2003-30 for being ultra vires is DENIED; and the
following are all declared INVALID:
1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-011-4021) dated 22
December 2008 issued in favor of respondent Redondo Peninsula Energy, Inc. by former
Secretary Jose L. Atienza, Jr. of the Department of Environment and Natural Resources;
2. The ECC first amendment dated 08 July 2010 and ECC second amendment dated 26 May
2011, both issued in favor ofrespondent Redondo Peninsula Energy, Inc. by OIC Director Atty.
Juan Miguel T. Cunaof the Department of Environment and Natural Resources, Environmental
Management Bureau; and
3. The Lease and Development Agreement dated 08 June 2010 entered into by respondents
Subic Bay Metropolitan Authority and Redondo Peninsula Energy, Inc. involving a parcel of land
consisting of ₱380,004.456 square meters.
SO ORDERED.65
The DENR and SBMA separately moved for reconsideration.66 RP Energy filed a Motion for Partial
Reconsideration,67 attaching thereto a signed Statement of Accountability.68 The Casiño Group, on the
other hand, filed Omnibus Motions for Clarification and Reconsideration.69
On May 22, 2013, the CAissued a Resolution70 denying the aforesaid motions for lack of merit. The CA
opined that the reliefs it granted in its Decision are allowed under Section 15, Rule 7 of the Rules of
Procedure for Environmental Cases as the reliefs enumerated therein are broad, comprehensive, and
nonexclusive.71 In fact, paragraph (e) of the saidprovision allows the granting of "such other reliefs" in
consonance with the objective, purpose, and intent of the Rules.72 SBMA’s contention that the stoppage
of a project for non-compliance with Section 59 of the IPRA Law may only be done by the indigenous
cultural communities or indigenous peoples was also brushed aside by the CA as the Casiño Group did
not file a case under the IPRA Law but a Petition for a Writ of Kalikasan, which is available to all natural or
juridical persons whose constitutional right to a balanced and healthful ecology is violated, or threatened
to be violated.73 As to RP Energy’s belated submission of a signed Statement of Accountability, the CA
gaveno weight and credenceto it as the belated submission of such document, long after the
presentation of evidence of the parties had been terminated, is not in accord with the rules of fair
play.74 Neither was the CA swayed by the argument that the omitted signature of Luis Miguel Aboitiz is a
mere formal defect, which does not affect the validity of the entire document.75 The dispositive portion
of the Resolution reads: WHEREFORE,premises considered, respondents Subic Bay Metropolitan
Authority’s Motion for Reconsideration dated 18 February 2013, Department of Environment and
Natural Resources Secretary Ramon Jesus P. Paje’s Motion for Reconsideration dated 19 February 2013,
and Redondo Peninsula Energy, Inc.’s Motion for Partial Reconsideration dated 22 February 2013, as well
as petitioners’ OmnibusMotions for Clarification and Reconsideration dated 25 February 2013,are all
DENIED for lack of merit.
SO ORDERED.76
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 62
Unsatisfied, the parties appealed to this Court.
The Casiño Group’s arguments
The Casiño Group, in essence, argues that it is entitled to a Writ of Kalikasan as it was able to prove that
the operation of the power plant would cause environmental damage and pollution, and that thiswould
adversely affect the residents of the provinces of Bataan and Zambales, particularly the municipalities of
Subic, Morong, Hermosa, and the City of Olongapo. It cites as basis RP Energy’s EIS, which allegedly
admits that acid rain may occur in the combustion of coal;77 that the incidence of asthma attacks among
residents in the vicinity of the project site may increasedue to exposure to suspended particles from
plant operations;78 and that increased sulfur oxides (SOx) and nitrogen oxides (NOx) emissions may occur
during plant operations.79 It also claims that when the SBMA conducted Social Acceptability Policy
Consultations with different stakeholders on the proposed power plant, the results indicated that the
overall persuasion of the participants was a clear aversion to the project due to environmental, health,
economic and socio-cultural concerns.80 Finally, it contends that the ECC third amendment should also be
nullified for failure to comply with the procedures and requirements for the issuance of the ECC.81
The DENR’s arguments
The DENR imputes error on the CAin invalidating the ECC and its amendments, arguing that the
determination of the validity of the ECC as well as its amendments is beyond the scope of a Petition for a
Writ of Kalikasan.82 And even if it is within the scope, there is no reason to invalidate the ECC and its
amendments as these were issued in accordance with DAO No. 2003-30.83 The DENR also insists that
contrary to the view of the CA, a new EIS was no longer necessary since the first EIS was still within the
validity period when the first amendment was requested, and that this is precisely the reason RP Energy
was only required to submit an EPRMP in support of its application for the first amendment.84 As to the
second amendment, the DENR-EMB only required RP Energy to submit documents to support the
proposed revision considering that the change in configuration of the power plant project, from
2x150MW to 1x300MW, was not substantial.85 Furthermore, the DENR argues that no permits, licenses,
and/or clearances from other government agencies are required in the processing and approval of the
ECC.86 Thus, non-compliance with Sections 26 and 27 of the LGC as well as Section 59 ofthe IPRA Law is
not a ground to invalidate the ECC and its amendments.87 The DENR further posits that the ECC is not a
concession, permit, or license but is a document certifying that the proponent has complied with all the
requirements of the EIS System and has committed to implement the approved Environmental
Management Plan.88 The DENR invokes substantial justice so that the belatedly submitted certified true
copy of the ECC containing the signature of Mr. Aboitiz on the Statement of Accountability may be
accepted and accorded weight and credence.89
SBMA’s arguments
For its part, SBMA asserts that since the CA did not issue a Writ of Kalikasan, it should not have
invalidated the LDA and that in doing so, the CA acted beyond its powers.90 SBMA likewise puts in issue
the legal capacity of the Casiño Group to impugn the validity of the LDA91 and its failure to exhaust
administrative remedies.92 In any case, SBMA contends that there is no legal basis to invalidate the LDA
as prior consultation under Sections 26 and 27 of the LGC is not required in this case considering that the
area is within the SBFZ.93 Under RA 7227, it is the SBMA which has exclusive jurisdiction over projects and
leases within the SBFZ and that in case of conflict between the LGC and RA 7227, it is the latter, a special
law, which must prevail.94 Moreover, the lack of prior certification from the NCIP is alsonot a ground to
invalidate a contract.95 If at all, the only effect of non-compliance with the said requirement under
Section 59 of the IPRA Law is the stoppage or suspension of the project.96 Besides, the subsequent
issuance of a CNO has cured any legal defect found in the LDA.97
RP Energy’s arguments
RP Energy questions the proprietyof the reliefs granted by the CA considering that it did not issue a writ
of kalikasanin favor of the Casiño Group.98 RP Energy is of the view that unless a writ of kalikasanis
issued, the CA has no power to grant the reliefs prayed for in the Petition.99 And even if it does, the
reliefs are limited to those enumerated in Section 15, Rule 7 of the Rules of Procedure for Environmental
Cases and that the phrase "such other reliefs" in paragraph (e) should be limited only to those of the
same class or general nature as the four other reliefs enumerated.100 As to the validity of the LDA, the
ECC and its amendments, the arguments of RP Energy are basically the same arguments interposed by
SBMA and the DENR. RP Energy maintains that the ECC and its amendments were obtained in
compliance with the DENR rules and regulations;101 that a CNO is not necessary in the execution of anLDA
and in the issuance of the ECC and its amendments;102 and that prior approval of the local governments,
which may be affected by the project, are not required because under RA 7227, the decision of the SBMA
shall prevail in matters affecting the Subic Special Economic Zone (SSEZ), except in matters involving
defense and security.103 RP Energy also raises the issue of non-exhaustion of administrative remedies on
the part of the Casiño Group.104 Preliminaries
This case affords us an opportunity to expound on the nature and scope of the writ of kalikasan. It
presents some interesting questions about law and justice in the context of environmental cases, which
we will tackle in the main body of this Decision.
But we shall first address some preliminary matters, in view of the manner by which the appellate court
disposed of this case.
The Rules on the Writ of Kalikasan,105 which is Part III of the Rules of Procedure for Environmental
Cases,106 was issued by the Court pursuant to its power to promulgate rules for the protection and
enforcement of constitutional rights,107 in particular, the individual’s rightto a balanced and healthful
ecology.108 Section 1 of Rule 7 provides:
Section 1. Nature of the writ.- The writ is a remedy available to a natural or juridical person, entity
authorized by law, people’s organization, nongovernmental organization, or any public interest group
accredited by or registered with any government agency, on behalf of persons whose constitutional right
to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity, involving environmental damage
of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or
provinces.
The writ is categorized as a special civil action and was, thus, conceptualized as an extraordinary
remedy,which aims to provide judicial relief from threatened or actual violation/s of the constitutional
right to a balanced and healthful ecology of a magnitude or degree of damage that transcends political
and territorial boundaries.109 It is intended "to provide a strongerdefense for environmental rights
through judicial efforts where institutional arrangements of enforcement, implementation and legislation
have fallen short"110 and seeks "to address the potentially exponential nature of large-scale ecological
threats."111
Under Section 1 of Rule 7, the following requisites must be present to avail of this extraordinary remedy:
(1) there is an actual or threatened violation of the constitutional right to a balanced and healthful
ecology; (2) the actual or threatened violation arises from an unlawful act or omission of a public official
or employee, or private individual or entity; and (3) the actual or threatened violation involves or will
lead to an environmental damage of such magnitude as to prejudice the life, health or property
ofinhabitants in two or more cities or provinces.
Expectedly, the Rules do not definethe exact nature or degree of environmental damage but only that it
must be sufficientlygrave, in terms of the territorial scope of such damage, so as tocall for the grant ofthis
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 63
extraordinary remedy. The gravity ofenvironmental damage sufficient to grant the writ is, thus, to be
decided on a case-to-case basis.
If the petitioner successfully proves the foregoing requisites, the court shall render judgment granting
the privilege of the writ of kalikasan. Otherwise, the petition shall be denied. If the petition is granted,
the court may grant the reliefs provided for under Section 15of Rule 7, to wit: Section 15. Judgment.-
Within sixty (60) daysfrom the time the petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting
the performance of a duty in violation of environmental laws resulting in environmental
destruction or damage;
(b) Directing the respondent public official, government agency, private person or entity to
protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to
monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to
make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology
or to the protection, preservation, rehabilitation or restoration of the environment, except the
award of damages to individual petitioners.
It must be noted, however,that the above enumerated reliefs are non-exhaustive. The reliefs that may be
granted under the writ are broad, comprehensive and non-exclusive.112
Prescinding from the above, the DENR, SBMA and RP Energy are one in arguing that the reliefs granted
by the appellate court, i.e.invalidating the ECC and its amendments, are improper because it had
deniedthe Petition for Writ of Kalikasanupon a finding that the Casiño Group failed to prove the alleged
environmental damage, actual or threatened, contemplated under the Rules.
Ordinarily, no reliefs could and should be granted. But the question may be asked, could not the
appellate court have granted the Petition for Writ of Kalikasanon the ground of the invalidity of the ECC
for failure to comply with certain laws and rules?
This question is the starting point for setting up the framework of analysis which should govern writ of
kalikasan cases.
In their Petition for Writ of Kalikasan,113 the Casiño Group’s allegations, relative to the actual or
threatened violation of the constitutional right to a balanced and healthful ecology, may be grouped into
two.
The first set of allegations deals withthe actual environmental damage that will occur if the power plant
project isimplemented. The Casiño Group claims that the construction and operation of the power plant
will result in (1) thermal pollution of coastal waters, (2) air pollution due to dust and combustion gases,
(3) water pollution from toxic coal combustion waste, and (4) acid deposition in aquatic and terrestrial
ecosystems, which will adversely affect the residents of the Provinces of Bataan and Zambales,
particularly the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo.
The second set of allegations deals with the failureto comply with certain laws and rules governing or
relating to the issuance ofan ECC and amendments thereto. The Casiño Group claims that the ECC was
issued in violation of (1) the DENR rules on the issuance and amendment of an ECC, particularly, DAO
2003-30 and the Revised Procedural Manual for DAO 2003-30 (Revised Manual), (2) Section 59 of the
IPRA Law,and (3) Sections 26 and 27 of the LGC. In addition, it claims that the LDA entered into between
SBMA and RP Energy violated Section 59 of the IPRA Law.
As to the first set of allegations, involving actual damage to the environment, it is not difficult to discern
that, if they are proven, then the Petition for Writ of Kalikasan could conceivably be granted.
However, as to the second set of allegations, a nuanced approach is warranted. The power of the courts
to nullify an ECC existed even prior to the promulgation of the Rules on the Writ of Kalikasanfor judicial
review of the acts of administrative agencies or bodies has long been recognized114 subject, of course, to
the doctrine of exhaustion of administrative remedies.115
But the issue presented before us is nota simple case of reviewing the acts of an administrative agency,
the DENR, which issued the ECC and its amendments. The challenge to the validity ofthe ECC was raised
in the context of a writ of kalikasancase. The question then is, can the validity of an ECC be challenged
viaa writ of kalikasan?
We answer in the affirmative subject to certain qualifications.
As earlier noted, the writ of kalikasanis principally predicated on an actual or threatened violation of the
constitutional right to a balanced and healthful ecology, which involves environmental damage of a
magnitude that transcends political and territorial boundaries. A party, therefore, who invokes the writ
based on alleged defects or irregularities in the issuance of an ECC must not only allege and prove such
defects or irregularities, but mustalso provide a causal link or, at least, a reasonable connection between
the defects or irregularities in the issuance of an ECC and the actual or threatened violation of the
constitutional right to a balanced and healthful ecology of the magnitude contemplated under the Rules.
Otherwise, the petition should be dismissed outright and the action re-filed before the proper forum
with due regard to the doctrine of exhaustion of administrative remedies. This must be so ifwe are to
preserve the noble and laudable purposes of the writ against those who seek to abuse it.
An example of a defect or an irregularity in the issuance of an ECC, which could conceivably warrant the
granting of the extraordinary remedy of the writ of kalikasan, is a case where there are serious and
substantial misrepresentations or fraud in the application for the ECC, which, if not immediately nullified,
would cause actual negative environmental impacts of the magnitude contemplated under the Rules,
because the government agenciesand LGUs, with the final authority to implement the project, may
subsequently rely on such substantially defective or fraudulent ECC in approving the implementation of
the project.
To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not sufficient to merely allege
such defects or irregularities, but to show a causal link or reasonable connection with the environmental
damage of the magnitude contemplated under the Rules. In the case at bar, no such causal link or
reasonable connection was shown or even attempted relative to the aforesaid second set of allegations.
It is a mere listing of the perceived defects or irregularities in the issuance of the ECC. This would
havebeen sufficient reason to disallow the resolution of such issues in a writ of kalikasan case.
However, inasmuch as this is the first time that we lay down this principle, we have liberally examined
the alleged defects or irregularities in the issuance of the ECC and find that there is only one group of
allegations, relative to the ECC, that can be reasonably connected to anenvironmental damageof the
magnitude contemplated under the Rules. This is withrespect to the allegation that there was no
environmental impact assessment relative to the first and second amendments to the subject ECC. If this
were true, then the implementation of the project can conceivably actually violate or threaten to violate
the right to a healthful and balanced ecology of the inhabitants near the vicinity of the power plant. Thus,
the resolution of such an issue could conceivably be resolved in a writ of kalikasan case provided that the
case does not violate, or is anexception to the doctrine of exhaustion of administrative remedies and
primary jurisdiction.116
As to the claims that the issuance of the ECC violated the IPRA Law and LGC and that the LDA, likewise,
violated the IPRA Law, we find the same not to be within the coverage of the writ of kalikasanbecause,
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 64
assuming there was non-compliance therewith, no reasonable connection can be made to an actual or
threatened violation of the right to a balanced and healthful ecology of the magnitude contemplated
under the Rules.
To elaborate, the alleged lackof approval of the concerned sanggunians over the subject project would
not lead toor is not reasonably connected with environmental damage but, rather, it is an affront to the
local autonomy of LGUs. Similarly, the alleged lack of a certificate precondition that the project site does
not overlap with an ancestral domain would not result inor is not reasonably connected with
environmental damage but, rather, it is an impairment of the right of Indigenous Cultural
Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains. These alleged violationscould be
the subject of appropriate remedies before the proper administrative bodies (like the NCIP) or a separate
action to compel compliance before the courts, as the case may be. However, the writ of kalikasan would
not be the appropriate remedy to address and resolve such issues.
Be that as it may, we shall resolve both the issues proper in a writ of kalikasan case and those which are
not, commingled as it were here, because of the exceptional character of this case. We take judicial
notice of the looming power crisis that our nation faces. Thus, the resolution of all the issues in this case
is of utmost urgency and necessity in order to finally determine the fate of the project center of this
controversy. If we were to resolve only the issues proper in a writ of kalikasancase and dismiss those not
proper therefor, that will leave such unresolved issues open to another round of protracted litigation. In
any case, we find the records sufficient to resolve all the issues presented herein. We also rule that, due
to the extreme urgency of the matter at hand, the present case is an exception to the doctrine of
exhaustion of administrative remedies.117 As we have often ruled, in exceptional cases, we can suspend
the rules of procedure in order to achieve substantial justice, and to address urgent and paramount State
interests vital to the life of our nation.
Issues
In view of the foregoing, we shall resolve the following issues:
1. Whether the Casiño Group was able to prove that the construction and operation of the
power plant will cause grave environmental damage.
1.1. The alleged thermal pollution of coastal waters, air pollution due to dust and
combustion gases, water pollution from toxic coal combustion waste, and acid
deposition to aquatic and terrestrial ecosystems that will becaused by the project.
1.2. The alleged negative environmental assessment of the project by experts in a
report generated during the social acceptability consultations.
1.3. The alleged admissions of grave environmental damage in the EIS itself of the
project.
2. Whether the ECC is invalid for lackof signature of Mr. Luis Miguel Aboitiz, as representative of
RP Energy, in the Statement of Accountability of the ECC.
3. Whether the first and second amendments to the ECC are invalid for failure to undergo a new
environmental impact assessment (EIA) because of the utilization of inappropriate EIA
documents.
4. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition
to the issuanceof an ECC and the lack of its prior issuance rendered the ECC invalid.
5. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition
to the consummation of the Lease and Development Agreement (LDA) between SBMA and
RPEnergy and the lack of its prior issuance rendered the LDA invalid.
6. Whether compliance with Section 27, in relation to Section 26, of the LGC (i.e., approval of
the concerned sanggunianrequirement) is necessary prior to the implementation of the power
plant project.
7. Whether the validity of the third amendment to the ECC can be resolved in this case.
Ruling
The parties to this case appealed from the decision of the appellate court pursuant to Section 16, Rule7
of the Rules of Procedure for Environmental Cases, viz:
Section 16. Appeal.- Within fifteen (15) days from the date of notice of the adverse judgment or denialof
motion for reconsideration, any party may appeal to the Supreme Court under Rule45 of the Rules of
Court. The appeal may raise questions of fact. (Emphasis supplied)
It is worth noting that the Rules on the Writ of Kalikasan allow the parties to raise, on appeal, questions
of fact— and, thus, constitutes an exception to Rule 45 of the Rules of Court— because ofthe
extraordinary nature of the circumstances surrounding the issuance of a writ of kalikasan.118 Thus, we
shall review both questions of law and fact in resolving the issues presented in this case.
We now rule on the above-mentioned issues in detail.
I.
Whether the Casiño Group was able to prove that the construction and operation of the power plant will
cause grave environmental damage.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that willbe caused by the
project.
As previously noted, the Casiño Group alleged that the construction and operation of the power plant
shall adversely affect the residents of the Provinces of Bataan and Zambales, particularly, the
Municipalities of Subic, Morong and Hermosa, and the City of Olongapo, as well as the sensitive
ecological balance of the area. Their claims of ecological damage may be summarized as follows:
1. Thermal pollution of coastal waters. Due to the discharge of heated water from the operation
of the plant, they claim that the temperature of the affected bodies of water will rise
significantly. This will have adverse effects on aquatic organisms. It will also cause the depletion
of oxygen in the water. RP Energy claims that there will beno more than a 3°C increase in water
temperature but the Casiño Group claims that a 1°C to 2°C rise can already affect the
metabolism and other biological functions of aquatic organisms such asmortality rate and
reproduction.
2. Air pollution due to dust and combustion gases. While the Casiño Group admits that
Circulating Fluidized Bed (CFB) Coal technology, which will be used in the power plant, is a clean
technology because it reduces the emission of toxic gases, it claims that volatile organic
compounds, specifically, polycyclic aromatic hydrocarbons (PAHs) will also be emitted under the
CFB. PAHs are categorized as pollutants with carcinogenic and mutagenic characteristics. Carbon
monoxide, a poisonous gas, and nitrous oxide, a lethal global warming gas, will also be
produced.
3. Water pollution from toxic coal combustion waste. The waste from coal combustion or the
residues from burning pose serious environmental risk because they are toxic and may cause
cancer and birth defects. Their release to nearby bodies of water will be a threatto the marine
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 65
 ecosystem of Subic Bay. The project is located in a flood-prone area and is near three prominent
seismic faults as identified by Philippine Institute of Volcanology and Seismology. The
construction of an ash pond in an area susceptible to flooding and earthquake also undermines
SBMA’s duty to prioritize the preservation of the water quality in Subic Bay.
4. Acid deposition in aquatic and terrestrial ecosystems. The power plant will release 1,888 tons
of nitrous oxides and 886 tons of sulfur dioxide per year. These oxides are responsible for acid
deposition. Acid deposition directly impacts aquatic ecosystems. It is toxic to fish and other
aquatic animals. It will also damage the forests near Subic Bay as well as the wildlife therein.
This will threaten the stability of the biological diversity of the Subic Bay Freeport which was
declared as one of the ten priority sites among the protected areas in the Philippines and the
Subic Watershed and Forest Reserve. This will also have an adverse effect on tourism.119
In its January 30, 2013 Decision, the appellate court ruled that the Casiño Group failed to prove the
above allegations.
We agree with the appellate court.
Indeed, the three witnesses presented by the Casiño Group are not experts on the CFB technology or on
environmental matters. These witnesses even admitted on cross-examination that theyare not
competent to testify on the environmental impact of the subject project. What is wanting in their
testimonies is their technical knowledgeof the project design/implementation or some other aspects of
the project, even those not requiring expertknowledge, vis-à-vis the significant negative environmental
impacts which the Casiño Group alleged will occur. Clearly, the Casiño Group failed to carry the onusof
proving the alleged significant negative environmental impacts of the project. In comparison, RP Energy
presented several experts to refute the allegations of the Casiño Group.
As aptly and extensively discussed by the appellate court:
Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and Lacbain, all of whom are not
experts on the CFB technology or even on environmental matters. Petitioners did not present any
witness from Morong or Hermosa. Palatino, a former freelance writer and now a Congressman
representing the Kabataan Partylist, with a degree of BS Education major in Social Studies, admitted that
he is not a technical expert. Hermoso, a Director of the PREDA foundation which is allegedly involved on
environmental concerns, and a member of Greenpeace, is not an expert on the matter subject of this
case. He is a graduate of BS Sociology and a practicing business director involved in social development
and social welfare services. Lacbain, incumbent ViceGovernor of the Province of Zambales, anaccounting
graduate with a Master in Public Administration, was a former BancoFilipino teller, entertainment
manager, disco manager, marketing manager and college instructor, and is also not an expert on the CFB
technology. Lacbain also admitted that he is neither a scientist nor an expert on matters of the
environment.
Petitioners cited various scientific studies or articles and websites culled from the internet. However, the
said scientific studiesand articles including the alleged Key Observations and Recommendations on the
EIS of the Proposed RPE Project by Rex Victor O. Cruz (Exhibit "DDDDD") attached to the Petition, were
not testified to by an expert witness, and are basically hearsay in nature and cannot be given probative
weight. The article purportedly written by Rex Victor O. Cruz was not even signed by the said author,
which fact was confirmed by Palatino. Petitioners’ witness, Lacbain, admitted that he did not personally
conduct any study on the environmental or health effects of a coal-firedpower plant, but only attended
seminars and conferences pertaining to climate change; and that the scientific studies mentioned in the
penultimate whereas clause of Resolution No. 2011-149 (Exhibit "AAAAA") of the Sangguniang
Panlalawiganof Zambales is based on what he read on the internet, seminars he attended and what he
heard from unnamed experts in the field of environmental protection.
In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was furnished by the concerned
residents the Key Observations and Recommendations on the EIS of Proposed RPE Project by Rex Victor
O. Cruz, and that he merely received and read the five (5) scientific studies and articles which challenge
the CFB technology. Palatino also testified that: he was only furnished by the petitioners copies of the
studies mentioned in his Judicial Affidavit and he did not participate in the execution, formulation or
preparation of any of the said documents; he does not personally know Rex Cruz or any of the authors of
the studies included in his Judicial Affidavit; he did not read other materials about coal-fired power
plants; he is not aware of the acceptable standards as far as the operation of a coal-fired power plant is
concerned; petitioner Velarmino was the one who furnished him copies of the documents in reference to
the MOU and some papers related to the case; petitioner Peralta was the one who e-mailed to him the
soft copy ofall the documents [letters (a) to (o) of his Judicial Affidavit], except the LGU Resolutions; and
he has never been at the actual Power Plant projectsite. It must be noted that petitioners Velarmino and
Peralta were never presented as witnesses in this case. In addition, Palatino did not identify the said
studies but simplyconfirmed that the said studies were attached to the Petition.
Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows of
his orher personal knowledge, that is, which are derived from the witness’ own perception.
Concomitantly, a witness may not testify on matters which he or she merely learned from others either
because said witness was told or read or heard those matters. Such testimony is considered hearsay and
may not be received as proof of the truth of what the witness has learned. This is known as the hearsay
rule. Hearsay is notlimited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements. There are several exceptions to the hearsay rule
under the Rules of Court, among which are learned treatises under Section 46 of Rule 130, viz:
"SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on a subjectof history, law,
science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes
judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise,
periodical or pamphlet is recognized in his profession or calling as expert in the subject."
The alleged scientific studies mentioned in the Petition cannot be classified as learned treatises. We
cannot take judicial notice of the same, and no witness expert in the subjectmatter of this case testified,
that the writers of the said scientific studies are recognized in their profession or calling as experts in the
subject.
In stark contrast, respondent RP Energy presented several witnesses on the CFB technology.
In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of Science, Major in Mechanical
Engineering from Worcester Polytechnic Institute; he is a Consulting Engineer of Steam Generators of
URS; he was formerly connected with Foster Wheeler where he held the positions of site commissioning
engineer, testing engineer, instrumentation and controls engineer, mechanical equipment department
manager, director of boiler performance and mechanical design engineering and pulverized coal product
director. He explained that: CFB stands for Circulating Fluidized Bed; it is a process by which fuel is fed to
the lower furnace where it is burned in an upward flow of combustion air; limestone, which is used as
sulfur absorbent, is also fed to the lower furnace along with the fuel; the mixture offuel, ash, and the
boiler bed sorbent material is carried to the upper part of the furnace and into a cyclone separator; the
heavier particles which generally consist of the remaining uncombusted fuel and absorbent material are
separated in the cyclone separator and are recirculated to the lower furnace to complete the combustion
of any unburned particles and to enhance SO2 capture by the sorbent; fly ash and flue gas exit the
cyclone and the fly ash is collected in the electrostatic precipitator; furnace temperature is maintained in
the range of 800° to 900° C by suitable heat absorbing surface; the fuel passes through a crusher that
reduces the size to an appropriate size prior to the introduction into the lower furnace along with the
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 66
limestone; the limestone is used as a SO2 sorbent which reacts with the sulfur oxides to form calcium
sulfate, an inert and stable material; air fans at the bottom of the furnace create sufficient velocity within
the steam generator to maintain a bed of fuel, ash, and limestone mixture; secondary air is also
introduced above the bed to facilitate circulation and complete combustion of the mixture; the
combustion process generates heat, which then heats the boiler feedwater flowing through boiler tube
bundles under pressure; the heat generated in the furnace circuit turns the water to saturated steam
which is further heated to superheated steam; this superheated steam leaves the CFB boiler and expands
through a steam turbine; the steam turbine is directly connected to a generator that turns and creates
electricity; after making its way through the steam turbine, the low-pressure steam is exhausted
downwards into a condenser; heat is removed from the steam, which cools and condenses into water
(condensate); the condensate is then pumped back through a train of feedwater heaters to gradually
increase its temperature beforethis water is introduced to the boiler to start the process all over again;
and CFB technology has advantagesover pulverized coal firing without backend cleanup systems, i.e.,
greater fuel flexibility, lower SO2 and NOx emissions. Moreover, Wong testified, inter alia, that: CFBs
have a wider range of flexibility so they can environmentally handle a wider range of fuel constituents,
mainly the constituent sulfur; and is capable of handling different types of coal within the range of the
different fuelconstituents; since CFB is the newer technology than the PC or stalker fire, it has better
environmental production; 50 percent ofthe electric generation in the United States is still produced by
coal combustion; and the CFB absorbs the sulfur dioxide before it is emitted; and there will be a lower
percentage of emissions than any other technology for the coal.
In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for Process Concept in FosterWheeler;
he was a Manager of Process Technology for Foster Wheeler from 1995 to 2007; and he holds a Master
of Science degree in Chemical Engineering.He explained that: CFB boilers will emit PAHs but only in
minimal amounts, while BFB will produce higher PAH emissions; PAH is a natural product of any
combustion process; even ordinary burning, such as cooking or driving automobiles, will have some
emissions that are not considered harmful; it is only when emissions are of a significant level that
damage may be caused; a CFB technology has minimal PAH emissions; the high combustion efficiency of
CFB technology, due to long residence time of particles inside the boiler, leads to minimal emissions of
PAH; other factors such as increase in the excess air ratio[,] decrease in Ca/S, as well as decrease in the
sulfur and chlorine contents of coal will likewise minimize PAH production; and CFB does not cause
emissions beyond scientificallyacceptable levels. He testified, inter alia, that: the CFB technology is used
worldwide; they have a 50% percent share of CFB market worldwide; and this will be the first CFB by
Foster Wheeler in the Philippines; Foster Wheeler manufactures and supplies different type[s] of boilers
including BFB, but CFB is always applied on burning coal, so they do not apply any BFB for coal firing; CFB
has features which have much better combustion efficiency, much lower emissions and it is more
effective as a boiler equipment; the longer the coal stays inthe combustion chamber, the better it is
burned; eight (8) seconds is already beyond adequate but it keeps a margin; in CFB technology,
combustion technology is uniform throughout the combustion chamber; high velocity is used in CFB
technology, that is vigorous mixing or turbulence; turbulence is needed to get contact between fuel and
combustion air; and an important feature of CFB is air distribution.
In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical Engineer, Sanitary Engineer and
Environmental Planner in the Philippines; he is also a chartered Professional Engineer inAustralia and a
member of the colleges of environmental engineers and chemical engineers of the Institution of
Engineers (Australia); he completed his Bachelor in Chemical Engineering in 1970, Master of
Environmental Engineering in 1972 and Doctor of Environmental Engineering in 1974; he also graduated
from the University of Sydney Law School with the degree of Master of Environmental Law in 2002 and
PhD in Law from Macquarie University in 2007. He explained in his Judicial Affidavit that: the impacts
identified and analyzed in the EIA process are all potential or likely impacts; there are a larger number of
EIA techniques for predicting the potential environmental impacts; it is important to note that all those
methods and techniques are only for predicting the potential environmental impacts, not the real
impacts; almost all environmental systems are non-linear and they are subject to chaotic behavior that
even the most sophisticated computer could not predict accurately; and the actual or real environmental
impact could only be established when the project is in actual operation. He testified, inter alia, that: the
higher the temperature the higher the nitrous oxide emitted; in CFB technology, the lower the
temperature, the lower is the nitrogen oxide; and it still has a nitrogen oxide but not as high as
conventional coal; the CFB is the boiler; from the boiler itself,different pollution control facilities are
going to be added; and for the overall plant with the pollution control facilities, the particulate matters,
nitrogen oxide and sulfur dioxide are under control. (Citations omitted)121
We also note that RP Energy controverted in detail the afore-summarized allegations of the Casiño Group
on the four areas of environmental damage that will allegedly occur upon the construction and operation
of the power plant:
1. On thermal pollution of coastal waters.
As to the extent of the expected rise in water temperature once the power plant is operational, Ms.
Mercado stated in her JudicialAffidavit thus:
Q: What was the result of the Thermal Plume Modeling that was conducted for RP Energy?
A: The thermal dispersion modeling results show that largest warming change (0.95°C above ambient) is
observed in the shallowest (5 m) discharge scenario. The warmest surface temperature change for the
deepest (30 m) scenario is 0.18°C. All the simulated scenarios comply with the DAO 90-35 limit for
temperature rise of 3°C within the defined 70 x 70 m mixing zone. The proposed power plant location is
near the mouth of Subic Bay, thus the tidal currents influence the behavior of thermal discharge plume.
Since the area is well-flushed, mixing and dilution of the thermal discharge is expected.
It also concluded that corals are less likely to be affected by the cooling water discharge as corals may
persist in shallow marine waterswith temperatures ranging from 18°C to 36°C. The predicted highest
temperature of 30.75°C, from the 0.95°C increase in ambient in the shallowest (5 m) discharge scenario,
is within this range.122
In the same vein, Dr. Ouano stated in his Judicial Affidavit:
Q: In page 41, paragraph 99 of the Petition, it was alleged that: "x x x a temperature change of 1°C to 2°C
canalready affect the metabolism and other biological functions of aquatic organisms such as mortality
rate and reproduction." What is your expert opinion, if any, on this matter alleged by the Petitioners?
A: Living organisms have proven time and again that they are very adaptable to changes in the
environment. Living organisms have been isolated in volcanic vents under the ocean living on the acidic
nutrient soup of sulfur and other minerals emitted by the volcano to sub-freezing temperature in
Antarctica. Asa general rule, metabolism and reproductive activity [increase] with temperature until a
maximum is reached after which [they decline]. For this reason, during winter, animals hibernate and
plants become dormant after shedding their leaves. It is on the onset of spring that animals breed and
plants bloom when the air and water are warmer. At the middle of autumn when the temperature drops
to single digit, whales, fish, birds and other living organisms, which are capable of migrating, move to the
other end of the globe where spring is just starting. In the processes of migration, those migratory
species have to cross the tropics where the temperature is not just one or two degrees warmer but 10 to
20 degrees warmer. When discussing the impact of 1 to 2 degrees temperature change and its impact on
the ecosystem, the most important factors to consider are – (1) Organism Type – specifically its tolerance
to temperature change (mammals have higher tolerance); (2) Base Temperature – it is the temperature
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 67
over the optimum temperature such that an increasewill result in the decline in number of the
organisms; (3) Mobility or Space for Migration (i.e., an aquarium with limited space or an open ocean
that the organism can move to a space more suited to [a] specific need, such as the migratory birds); and
(4) Ecosystem Complexity and Succession. The more complex the ecosystem the more stable it is as
succession and adaptation [are] more robust.
Normally, the natural variation in water temperature between early morning to late afternoon could be
several degrees (four to five degrees centigrade and up to ten degrees centigrade on seasonal basis).
Therefore, the less than one degree centigrade change predicted by the GHD modeling would have
minimal impact.123
On cross-examination, Dr. Ouano further explained—
ATTY. AZURA:
x x x When you say Organism Type – you mentioned that mammals have a higher tolerance for
temperature change?
DR. OUANO:
Yes.
ATTY. AZURA:
What about other types of organisms, Dr. Ouano? Fish for example?
DR. OUANO:
Well, mammals have high tolerance because mammals are warm[- ]blooded. Now, when it comes to
cold[-]blooded animals the tolerance is much lower. But again when you are considering x x x fish
[e]specially in open ocean you have to remember that nature by itself is x x x very brutal x x x where
there is always the prey-predator relationship. Now, most of the fish that we have in open sea [have]
already a very strong adaptability mechanism.And in fact, Kingman back in 1964 x x x studied the coal
reefaround the gulf of Oman where the temperature variation on day to day basis varied not by 1 degree
to 2 degrees but by almost 12 degrees centigrade. Now, in the Subic Bay area which when you’re looking
at it between daytime variation, early dawn when it is cold, the air is cold, the sea temperature, sea
water is quite cold. Then by 3:00 o’clock in the afternoon it starts to warm up. Sothe variation [in the]
Subic Bay area is around 2 to 4 degrees by natural variation from the sun as well as from the current that
goes around it. So when you are talking about what the report has said of around 1 degree change, the
total impact x x x on the fishes will be minimal. x x x
ATTY. AZURA:
x x x So, you said, Dr. Ouano, that fish, while they have a much lower tolerance for temperature
variation, are still very adaptable. What about other sea life, Dr. Ouano, for example, sea reptiles?
DR. OUANO:
That’s what I said. The most sensitive part of the marine ecology is physically the corals because corals
are non-migratory, they are fix[ed]. Second[ly] x x x corals are also highly dependent on sunlight
penetration. If they are exposed out of the sea, they die; if theyare so deep, they die. And that is why I
cited Kingman in his studies of coral adaptability [in] the sea ofOman where there was a very high
temperature variation, [they] survived.  
ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic Bay?
DR. OUANO:
Not in Subic Bay but I have reviewedthe temperature variation, natural temperature variation from the
solar side, the days side as well as the seasonal variation. There are two types of variation since
temperatures are very critical. One is the daily, which means from early morning to around 3:00 o’clock,
and the other one is seasonal variation because summer, December, January, February are the cold
months and then by April, May we are having warm temperature where the temperature goes around
32-33 degrees; Christmas time, it drops to around 18 to 20 degrees so it[']sa variation of around seasonal
variation of 14 degrees although some of the fish might even migrate and that is why I was trying to put
in corals because they are the ones that are really fix[ed]. They are not in a position to migrate in this
season.
ATTY. AZURA:
To clarify. You said that the most potentially sensitive part of the ecosystem would be the corals. DR.
OUANO:
Or threatened part because they are the ones [that] are not in a position to migrate.
ATTY AZURA:
In this case, Dr. Ouano, with respectto this project and the projected temperature change, will the corals
in Subic Bay be affected?
DR. OUANO:
As far as the outlet is concerned, they have established it outside the coral area. By the time it reaches
the coral area the temperature variation, as per the GHD study is very small, it[’]s almost negligible.
ATTY AZURA:
Specifically, Dr. Ouano, what does negligible mean, what level of variation are we talking about?
DR. OUANO:
If you are talking about a thermometer, you might be talking about, normally about .1 degrees
centigrade. That’sthe one that you could more or less ascertain. x x x
ATTY. AZURA:
Dr. Ouano, you mentioned in youranswer to the same question, Question 51, that there is a normal
variation in water temperature. In fact, you said there is a variation throughout the day, daily and also
throughout the year, seasonal. Just to clarify, Dr. Ouano. When the power plant causes the projected
temperature change of 1 degree to 2 degrees Celsius this will be in addition to existing variations? What I
mean, Dr. Ouano, just so I can understand, how will that work? How will the temperature change caused
by the power plant work with the existing variation? DR. OUANO:
There is something like what we call the zonal mixing. This is an area of approximately one or two
hectares where the pipe goes out, the hot water goes out. So that x x x, we have to accept x x x that
[throughout it] the zone will be a disturb[ed] zone. After that one or two hectares park the water
temperature is well mixed [so] that the temperature above the normal existing variation now practically
drops down to almost the normal level.124
2. On air pollution due todust and combustion gases.
To establish that the emissions from the operation of the power plant would be compliant with the
standards under the Clean Air Act,125 Ms. Mercado stated in her Judicial Affidavit thus:
271. Q: What was the result of the Air Dispersion Modeling that was conducted for RP Energy?
A: The Air Dispersion Modeling predicted that the Power Plant Project will produce the following
emissions,which [are] fully compliant with the standards set by DENR:
Predicted GLC126 for 1-hr National Ambient Air Quality
averaging period Guideline Values
SO2 45.79 µg/Nm3 340 µg/Nm3
NO2 100.8 µg/Nm3 260 µg/Nm3
CO 10 µg/Nm3 35 µg/Nm3
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 68
  Predicted GLC for 8-hr averaging period National Ambient Air Quality upset condition is still around .1 or 10% percent only of the Clean Air Act limit. So it’s still much lower
Guideline Values than the limit.
ATTY. AZURA:
CO 0.19 mg/ncm 10 µg/Nm3 But that would mean, would it not, Ms. Mercado, that in the event of upset conditions[,] emissionswould
increase in the Olongapo City Poblacion?
MS. MERCADO:
  Predicted GLC for 24-hr averaging period National Ambient Air Quality
Not emissions will increase. The emissions will be the same but the ground level concentration, the GLC,
Guideline Values
will be higher if you compare normal versus upset. But even if it[’]s under upset conditions, it is still only
SO2 17.11 µg/Nm3 180 µg/Nm3 around 10% percent of the Clean Air Act Limit.
xxxx
NO2 45.79 µg/Nm3 150 µg/Nm3 J. LEAGOGO:
So you are trying to impress upon this Court that even if the plant is in an upset condition, it will emit less
  Predicted GLC for 1-yr averaging period National Ambient Air Quality than what the national standards dictate?
Guideline Values MS. MERCADO:
Yes, Your Honor.128
SO2 6.12 µg/Nm3 80 µg/Nm3 With respect to the claims that the powerplant will release dangerous PAHs and CO, Engr. Sarrki stated in
his Judicial Affidavit thus:
NO2 No standard --- Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that Volatile Organic Compounds
CO No standard --- ("VOC") specifically Polycyclic Aromatic Hydrocarbon ("PAH") will be emitted even by CFB boilers. What
can you say about this?
272. Q: What other findings resulted from the Air Dispersion Modeling, if any?
A: Actually, the study cited by the Petitioners does not apply to the present case because it does not
A: It also established that the highest GLC to CleanAir Act Standards ratio among possible receptors was
refer to CFB technology. The study refers to a laboratory-scale tubular Bubbling Fluidized Bed ("BFB") test
located 1.6 km North NorthEast ("NNE") of the Power Plant Project. Further, this ratio was valued only at
rig and not a CFB. CFB boilers will emit PAHs but only in minimal amounts. Indeed, a BFB will produce
0.434 or less than half of the upper limit set out in the Clean Air Act. This means that the highest air
higher PAH emissions.
ambient quality disruption will happen only 1.6 km NNE of the Power Plant Project, and that such
xxxx
disruption would still be compliant with the standards imposed by the Clean Air Act.127
Q: Why can the study cited by Petitioners not apply in the present case?
The Casiño Group argued, however, that, as stated inthe EIS, during upset conditions, significant negative
A: The laboratory-scale BFB used in the study only has one (1) air injection point and does not replicate
environmental impact will result from the emissions. This claim was refuted by RP Energy’s witness
the staged-air combustion process of the CFB that RP Energy will use. Thisstaged-air process includes the
during cross-examination:
secondary air. Injecting secondary air into the system will lead to more complete combustion and inhibits
ATTY. AZURA:
PAH production. There is a study entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a Coal-
If I may refer you to another page of the same annex, Ms. Mercado, that’s page 202 of the same
Fired Pilot FBC System" byKunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley found in the Journal of
document, the August 2012. Fig. 2-78 appears to show, there’s a Table, Ms. Mercado, the first table, the
Hazardous Materials B84 (2001) where the findings are discussed.
one on top appears to show a comparison in normal and upset conditions. I noticed, Ms. Mercado, that
Also, the small-scale test rig utilized in the study does not simulate the process conditions
the black bars are much higher than the bars in normal condition. Can you state what this means?
(hydrodynamics, heat transfer characteristics, solid and gas mixing behavior, etc.) seen in a large scale
MS. MERCADO:
utility boiler, like those which would be utilized by the Power Plant Project.
It means there are more emissions that could potentially be released when it is under upset condition.
xxxx
ATTY. AZURA:
Q: Aside from residence time of particles and secondary air, what other factors, if any, reduce PAH
I also noticed, Ms. Mercado, at the bottom part of this chart there are Receptor IDs, R1, R2, R3 and so
production?
forth and on page 188 of this same document, Annex "9-Mercado," there is a list identifying these
A: Increase in the excess air ratio will also minimizePAH production. Furthermore, decrease in Calcium to
receptors, for example, Receptor 6, Your Honor, appears to have been located in Olongapo City,
Sulfur moral ratio ("Ca/S"), as well as decrease in the sulfur and chlorine contents of coal will likewise
Poblacion. Just so I can understand, Ms. Mercado, does that mean that if upset condition[s] were to
minimize PAH production. This is also based on the study entitled "Polycyclic Aromatic Hydrocarbon
occur, the Olongapo City Poblacion will be affected by the emissions? MS. MERCADO:
(PAH) Emissions from a Coal-Fired Pilot FBC System" by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T.
All it means is that there will be higher emissions and a higher ground concentration. But you might want
Riley.
to alsopay attention to the "y axis," it says there GLC/CAA [Ground Level Concentration/Clean Air Act
In RP Energy’s Power Plant Project, the projected coal to be utilized has low sulfur and chlorine contents
limit]. So it means that even under upset conditions… say for R6, the ground level concentration for
minimizing PAH production. Also, due to optimum conditions for the in-furnace SO2capture, the Ca/S will
be relatively low, decreasing PAH production.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 69
Q: In paragraph 104 of the Petition, it was alleged that "Carbon monoxide (CO), a poisonous, colorless
and odorless gas is also produced when there is partial oxidation or when there is not enough oxygen
(O2) to form carbon dioxide (CO2)." What can you say about this?
A: CFB technology reduces the CO emissions of the Power Plant Project to safe amounts. In fact, I
understand that the projected emissions level of the Power Plant Project compl[ies]with the
International Finance Corporation ("IFC") standards. Furthermore, characteristics of CFB technology such
as long residence time, uniform temperature and high turbulence provide an effective combustion
environment which results [in] lower and safer CO emissions.
Q: I have no further questions for youat the moment. Is there anything you wish to add to the foregoing?
A: Yes. PAH is a natural product of ANY combustion process. Even ordinary burning, such as cooking or
driving automobiles, will have some emissions that are not considered harmful. It is only when emissions
are of a significant level that damage may be caused.
Given that the Power Plant Project will utilize CFB technology, it will have minimal PAH emissions. The
high combustion efficiency of CFB technology, due to the long residence time of particles inside the
boiler, leads to the minimal emissions of PAH. Furthermore,other factors such as increase in the excess
air ratio, decrease in Ca/S, as well as decrease in the sulfur and chlorine contents of coal will likewise
minimize PAH production. CFB does not cause emissions beyond scientifically acceptable levels, and we
are confident it will not result in the damage speculated by the Petitioners.129
3. On water pollution from toxic coal combustion waste.
With regard to the claim that coal combustion waste produced by the plant will endanger the health of
the inhabitants nearby, Dr. Ouano stated in his Judicial Affidavit thus:
Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid coal combustion waste is highly
toxic and is said to cause birth defects and cancer risks among others x x x." What is your expert opinion,
if any, on this matter alleged by the Petitioners?
A: Coal is geologically compressed remains of living organisms that roamed the earth several million
years ago. In the process of compression, some of the minerals in the soil, rocks or mud, the geologic
media for compression, are also imparted into the compressed remains. If the compressing media of
mud, sediments and rocks contain high concentration of mercury, uranium, and other toxic substances,
the coal formed will likewise contain high concentration of those substances. If the compressing
materials have low concentration of those substances, then the coal formed will likewise have low
concentration of those substances. If the coal does not contain excessive quantities of toxic substances,
the solid residues are even used in agriculture to supply micronutrients and improve the potency of
fertilizers. It is used freely as a fill material in roads and other construction activities requiring large
volume of fill and as additive in cement manufacture. After all, diamonds that people love to hang
around their necks and keep close to the chest are nothing more than the result of special geologic
action, as those in volcanic pipes on coal.130
RP Energy further argued, a matter which the Casiño Group did not rebut or refute, that the waste
generated by the plant will be properly handled, to wit:
4.1.49 When coal is burned in the boiler furnace, two by-products are generated - bottom and
fly ash. Bottom ash consists oflarge and fused particles that fall to the bottom of the furnace and
mix with the bed media.Fly ash includes finegrained and powdery particles that are carried away
by flue gas into the electrostatic precipitator, which is then sifted and collected. These by-
products are non-hazardous materials. In fact, a coal power plant’s Fly Ash, Bottom Ash and
Boiler Slag have consequent beneficial uses which "generate significant environmental,
economic, and performance benefits." Thus, fly ash generated during the process will be sold
and transported to cement manufacturing facilities or other local and international industries.
4.1.50 RP Energy shall also install safety measures to insure that waste from burning of coal shall
be properly handled and stored.
4.1.51 Bottom ash will be continuously collected from the furnace and transferred through a
series of screw and chain conveyors and bucket elevator to the bottom ash silo. The collection
and handling system is enclosed to prevent dust generation. Discharge chutes will be installed at
the base of the bottom ash silo for unloading. Open trucks will be used to collect ash through
the discharge chutes. Bottom ash will be sold, and unsold ash will be stored in ash cells. A
portion of the bottom ash will be reused as bed materialthrough the installation of a bed media
regeneration system (or ash recycle). Recycled bottom ash will be sieved using a vibrating screen
and transported to a bed material surge bin for re-injection into the boiler.
4.1.52 Fly ash from the electrostatic precipitator is pneumatically removed from the collection
hopper using compressed air and transported in dry state to the fly ash silo. Two discharge
chutes will be installed at the base of the fly ash silo. Fly ash can either be dry-transferred
through a loading spout into an enclosed lorry or truck for selling, re-cycling, or wet-transferred
through a wet unloader into open dump trucks and transported to ash cells. Fly ash discharge
will operate in timed cycles, with an override function to achievecontinuous discharge if
required. Fly ash isolation valves in each branch line will prevent leakage and backflow into non-
operating lines.
4.1.53 Approximately 120,000m² will be required for the construction of the ash cell. Ash will be
stacked along the sloping hill, within a grid of excavations (i.e. cells) with a 5m embankment.
Excavated soils will be used for embankment construction and backfill. To prevent infiltration
[of] ash deposits into the groundwater, a clay layer with minimum depth of400mm will be laid at
the base of each cell. For every 1-m depth of ash deposit, a 10-cm soil backfill will be applied to
immobilize ash and prevent migration via wind. Ash cell walls will be lined with high-density
polyethylene to prevent seepage. This procedure and treatment method is in fact suitable for
disposal of toxic and hazardous wastes although fly ash is not classified as toxic and hazardous
materials.131
Anent the claims that the plant is susceptible to earthquake and landslides, Dr. Ouano testified thus:
J. LEAGOGO:
In terms of fault lines, did you study whether this project site is in any fault line?
DR. OUANO:
There are some fault linesand in fact, in the Philippines it is very difficult to find an area except Palawan
where there is no fault line within 20 to 30 [kilometers]. But then fault lines as well as earthquakes really
[depend] upon your engineering design. I mean, Sto. Tomas University has withstood all the potential
earthquakes we had in Manila[,] even sometimes it[’]s intensity 8 or so because the design for it back in
1600 they are already using what we call floating foundation. So if the engineering side for it[,]
technology is there to withstand the expected fault line [movement]. J. LEAGOGO:
What is the engineering side of the project? You said UST is floating.
DR. OUANO:
The foundation, that means to say you don’t break…
J. LEAGOGO:
Floating foundation. What about this, what kind of foundation?
DR. OUANO:
It will now depend on their engineering design, the type of equipment…
J. LEAGOGO:
No, but did you read it in their report?
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 70
DR. OUANO: It[’]s not there in their report because it will depend on the supplier, the equipment Because the acid concentration is so dilute[d] so that it is not going to cause acid rain.
supplier. J. LEAGOGO:
J. LEAGOGO: The acid concentration is so diluted that it will not cause acid rain?
So it[’]s not yet there? DR. OUANO:
DR. OUANO: Yes .
It[’]s not yet there in the site but it is also covered inour Building Code what are the intensities of J. LEAGOGO:
earthquakes expected of the different areas in the Philippines. What do you mean it[’]s so diluted? How will it be diluted?
J. LEAGOGO: DR. OUANO:
Have you checked our geo-hazard maps in the Philippines to check on this project site? Because it[’]s going to be mixed withthe air in the atmosphere; diluted in the air in the atmosphere. And
DR. OUANO: besides this 886 tons, this is not released in one go, it is released almost throughout the year.
Yes. It is included there in the EIA Report. J. LEAGOGO:
J. LEAGOGO: You also answered in Question No. 61, "acid raintakes place when the NO2 AND SO2 concentration are
It[’]s there? excessive." So whendo you consider it as excessive?
DR. OUANO: DR. OUANO:
It[’]s there.132 That is something when you are talking about acid…
4. On acid deposition in aquatic and terrestrial ecosystems. J. LEAGOGO:
Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit, thus: In terms of tons of nitrous oxide and tons of sulfur oxide, when do you consider it as excessive?
Q: In page 44, paragraph 114 of the Petition, it was alleged that "the coalfired power plant will release DR. OUANO:
1,888 tons of nitrous oxides (NOx) per year and 886 tons of sulfur dioxide (SO2) per year. These oxides It is in concentration not on tons weight, Your Honor.
are the precursors to the formation of sulfuric acid and nitric acid which are responsible for acid J. LEAGOGO:
deposition." Whatis your expert opinion on this matter alleged by the Petitioners? In concentration?
A: NO2 is found in the air, water and soil from natural processes such as lightning, bacterial activities and DR. OUANO:
geologic activities as well as from human activities such as power plants and fertilizer usage in In milligrams per cubic meter, milligrams per standard cubic meter.
agriculture. SO2 is also found in air, water and soil from bacterial, geologic and human activities. NO2 and J. LEAGOGO:
SO2 in the air are part of the natural nitrogen and sulfur cycle to widely redistribute and recycle those So being an expert, whatwill be the concentration of this kind of 1,888 tons of nitrous oxide? What will
essential chemicals for use by plants. Without the NO2 and SO2 in the air, plant and animal life would be be the concentration in terms of your…?
limited to small areas of this planet where nitrogen and sulfur are found in abundance. With intensive DR. OUANO:
agricultural practices, nitrogen and sulfur are added in the soil as fertilizers. If the concentration is in excess ofsomething like 8,000 micrograms per standard cubic meters, then
Acid rain takes place when the NO2 and SO2 concentration are excessive or beyond those values set in there isalready potential for acid rain.
the air quality standards. NO2 and SO2 in the air in concentrations lower than those set in the standards J. LEAGOGO:
have beneficial effect to the environment and agriculture and are commonly known as micronutrients.133 I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous oxide?
On clarificatory questions from the appellate court, the matter was further dissected thus: DR. OUANO:
J. LEAGOGO: Yes .
x x x The project will release 1,888 tons of nitrous oxide per year. And he said, yes; that witness J. LEAGOGO:
answered, yes, itwill produce 886 tons of sulfur dioxide per year. And he also answered yes, that these In terms of concentration, what will that be?
oxides are the precursors to the formation of sulfuric acid and nitric acid. Now my clarificatory question DR. OUANO:
is, with this kind of releases there will be acid rain? In terms of the GHD study that will result [in] 19 milligrams per standard cubic meters and the time when
DR. OUANO: acid rain will start [is when the concentration gets] around 8,000 milligrams per standard cubic meters.
No. So we have 19 compared to 8,000. So weare very, very safe.
J. LEAGOGO: J. LEAGOGO:
Why? What about SO2?
DR. OUANO: DR. OUANO:
Because it[’]s so dilute[d]. SO2, we are talking about ... youwon’t mind if I go to my codigo. For sulfur dioxide this acid rain most
J. LEAGOGO: likely will start at around 7,000 milligrams per standard cubic meter but then … sorry, it[’]s around 3,400
It will? micrograms per cubic meter. That is the concentration for sulfur dioxide, and in our plant it will be
DR. OUANO:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 71
around 45 micrograms per standard cubic meter. So the acid rain will start at 3,400 and the emission is
estimated here to result to concentration of 45.7 micrograms.
J. LEAGOGO:
That is what GHD said in their report.
DR. OUANO:
Yes. So that is the factor of x x x safety that we have.134
Apart from the foregoing evidence, wealso note that the above and other environmental concerns are
extensively addressed in RP Energy’s Environmental Management Plan or Program(EMP). The EMP is "a
section in the EIS that details the prevention, mitigation, compensation, contingency and monitoring
measures to enhance positive impacts and minimize negative impacts and risks of a proposed project or
undertaking."135 One of the conditions of the ECC is that RP Energy shall strictly comply with and
implement its approved EMP. The Casiño Group failed to contest, with proof, the adequacy of the
mitigating measures stated in the aforesaid EMP.
In upholding the evidence and arguments of RP Energy, relative to the lack of proof as to the alleged
significant environmental damage that will be caused by the project, the appellate court relied mainly on
the testimonies of experts, which we find to be in accord withjudicial precedents. Thus, we ruled in one
case:
Although courts are not ordinarily bound by testimonies of experts, they may place whatever weight
they choose upon such testimonies in accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering
the ability and character of the witness, his actions upon the witness stand, the weight and process of
the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he
testifies,the fact that he is a paid witness, the relative opportunities for study and observation of the
matters about which he testifies, and any other matters which serve to illuminate his statements. The
opinion of the expert may not be arbitrarily rejected; it isto be considered by the court in view of all the
facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may
be given controlling effects (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness
and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is
not reviewable inthe absence of an abuse of that discretion.136
Hence, we sustain the appellate court’s findings that the Casiño Group failed to establish the alleged
grave environmental damage which will be caused by the construction and operation of the power plant.
In another vein, we, likewise, agree with the observationsof the appellate court that the type of coal
which shall be used in the power plant has important implications as to the possible significant negative
environmental impacts of the subject project.137 However, there is no coal supply agreement, as of yet,
entered into by RP Energy with a third-party supplier. In accordance with the terms and conditions of the
ECC and in compliance with existing environmental laws and standards, RP Energy is obligated to make
use of the proper coal type that will not cause significant negative environmental impacts.
The alleged negative environmental
assessment of the project by experts in a
report generated during the social
acceptability consultations
The Casiño Group also relies heavily on a report on the social acceptability process of the power plant
project to bolster itsclaim that the project will cause grave environmental damage. We purposely discuss
this matter in this separate subsection for reasons which will be made clear shortly.
But first we shall present the pertinent contents of this report.
According to the Casiño Group, from December 7 to 9, 2011, the SBMA conducted social
acceptabilitypolicy consultations with different stakeholders on RP Energy’s proposed 600 MW coal plant
project at the Subic Bay Exhibition and Convention Center. The results thereof are contained in a
document prepared by SBMA entitled "Final Report: Social Acceptability Process for RP Energy, Inc.’s
600-MW Coal Plant Project" (Final Report). We notethat SBMA adopted the Final Report as a common
exhibit with the Casiño Group in the course of the proceedings before the appellate court.
The Final Report stated that there was a clear aversion to the concept of a coal-fired power plant from
the participants. Their concerns included environmental, health, economic and socio-cultural factors.
Pertinent to this case is the alleged assessment, contained in the Final Report, of the potential effects of
the project by three experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor of the University of the Philippines,
Los Baños and a forest ecology expert, (2) Dr. Visitacion Antonio, a toxicologist, who related information
as to public health; and (3) Andre Jon Uychiaco, a marine biologist.
The Final Report stated these experts’alleged views on the project, thus:
IV. EXPERTS’ OPINION
xxxx
The specialists shared the judgment that the conditions were not present to merit the operation of a
coal-fired power plant,and to pursue and carry out the project with confidence and assurance that the
natural assets and ecosystems within the Freeport area would not be unduly compromised, or that
irreversible damage would not occur and that the threats to the flora and fauna within the immediate
community and its surroundings would be adequately addressed. The three experts were also of the
same opinion that the proposed coal plant project would pose a wide range of negative impacts on the
environment, the ecosystems and human population within the impact zone.
The specialists likewise deemed the Environment Impact Assessment (EIA) conducted by RPEI to be
incomplete and limited in scope based on the following observations:
i. The assessment failed to include areas 10km. to 50km. from the operation site, although
according tothe panel, sulfur emissions could extend as far as 40-50 km.
ii. The EIA neglected to include other forests in the Freeport in its scope and that there were no
specific details on the protection of the endangered flora and endemic fauna in the area. Soil,
grassland, brush land, beach forests and home gardens were also apparently not included in the
study.
iii. The sampling methods used inthe study were limited and insufficient for effective long-term
monitoring of surface water, erosion control and terrestrial flora and fauna.
The specialists also discussed the potential effects of an operational coalfired power plant [on] its
environs and the community therein. Primary among these were the following:
i. Formation of acid rain, which would adversely affect the trees and vegetation in the area
which, in turn, would diminish forest cover. The acid rain would apparently worsen the acidity of
the soil in the Freeport.
ii. Warming and acidification of the seawater in the bay, resulting in the bio-accumulationof
contaminants and toxic materials which would eventually lead to the overall reduction of
marine productivity.
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy metals
suchas mercury and lead to the surrounding region, which would adversely affect the health of
the populace in the vicinity.
V. FINDINGS
Based on their analyses of the subject matter, the specialists recommended that the SBMA re-scrutinize
the coal-fired power plant project with the following goals in mind:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 72
 i. To ensure its coherence and compatibility to [the] SBMA mandate, vision, mission and
development plans, including its Protected Area Management Plan;
ii. To properly determine actual and potential costs and benefits;
iii. To effectively determine the impacts on environment and health; and
iv. To ensure a complete and comprehensive impacts zone study.
The specialists also urged the SBMA to conduct a Comprehensive Cost And Benefit Analysis Of The
Proposed Coal Plant Project Relative To Each Stakeholder Which Should Include The Environment As
Provider Of Numerous Environmental Goods And Services.
They also recommended an Integrated/Programmatic Environmental Impact Assessmentto accurately
determine the environmental status of the Freeport ecosystem as basis and reference in evaluating
future similar projects. The need for a more Comprehensive Monitoring System for the Environment and
Natural Resourceswas also reiterated by the panel.138
Of particular interest are the alleged key observations of Dr. Cruz on the EIS prepared by RP Energy
relative to the project:
Key Observations and Recommendations on the EIS of Proposed RPE Project
Rex Victor O. Cruz
Based on SBMA SAP on December 7-9, 2011
1. The baseline vegetation analysis was limited only within the project site and its immediate
vicinity. No vegetation analysis was done in the brushland areas in the peninsula which is likely
to be affected in the event acid rain forms due to emissions from the power plant.
2. The forest in the remaining forests inthe Freeport was not considered as impact zone as
indicated by the lack ofdescription of these forests and the potential impacts the project might
have on these forests. This appears to be a key omission in the EIS considering that these forests
are well within 40 to 50 km away from the site and that there are studies showing that the
impacts of sulphur emissions can extend as far as 40 to 50 km away from the source.
3. There are 39 endemic fauna and 1 endangered plant species (Molave) in the proposed project
site. There will be a need to make sure that these species are protected from being damaged
permanently in wholesale. Appropriate measures such as ex situconservation and translocation
if feasible must be implemented.
4. The Project site is largely in grassland interspersed with some trees. These plants if affected
by acid rain or by sulphur emissions may disappear and have consequences on the soil
properties and hydrological processes in the area. Accelerated soil erosion and increased
surface runoff and reduced infiltration of rainwater into the soil.
5. The rest of the peninsula is covered with brushland but were never included as part of the
impact zone.
6. There are home gardens along the coastal areas of the site planted to ornamental and
agricultural crops which are likely to be affected by acid rain.
7. There is also a beach forest dominated by aroma, talisai and agoho which will likely be
affectedalso by acid rain.
8. There are no Environmentally Critical Areas within the 1 km radius from the project site.
However, the OlongapoWatershed Forest Reserve, a protected area is approximately 10
kmsouthwest of the projectsite. Considering the prevailing wind movement in the area, this
forest reserve is likely to be affected by acid rain if it occurs from the emission of the power
plant. This forest reserve is however not included as partof the potential impact area.
9. Soil in the project site and the peninsula is thin and highly acidic and deficient in NPK with
moderate to severe erosion potential. The sparse vegetation cover in the vicinity of the
projectsite is likely a result of the highly acidic soil and the nutrient deficiency. Additional acidity
may result from acid rain that may form in the area which could further make it harder for the
plants to grow in the area that in turn could exacerbate the already severe erosion in the area.
10. There is a need to review the proposalto ensure that the proposed project is consistent with
the vision for the Freeport as enunciated in the SBMA Master Plan and the Protected Area
Management Plan. This will reinforce the validity and legitimacy of these plans as a legitimate
framework for screening potential locators in the Freeport. Itwill also reinforce the trust and
confidence of the stakeholders on the competence and authority of the SBMA that would
translate in stronger popular support to the programs implemented in the Freeport.
11. The EGF and Trust Fund (Table 5.13) should be made clear that the amounts are the
minimum amount and that adequate funds will be provided by the proponent as necessary
beyond the minimum amounts. Furthermore the basis for the amounts allocated for the items
(public liability and rehabilitation) in Trust Fund and in EGF (tree planting and landscaping,
artificial reef establishment) must be clarified. The specific damages and impacts that will be
covered by the TF and EGF must also be presented clearly at the outset to avoid protracted
negotiations in the event of actual impacts occurring in the future.
12. The monitoring plan for terrestrial flora and fauna is not clear on the frequency of
measurement. More importantly, the proposed method of measurement (sampling transect)
while adequate for estimating the diversity of indices for benchmarking is not sufficient for
long[-]term monitoring. Instead, long[-]term monitoringplots (at least 1 hectare in size) should
be established to monitor the long[-]term impacts of the project on terrestrial flora and fauna.
13. Since the proposed monitoring of terrestrial flora and fauna is limited to the vicinity of the
project site, it will be useful not only for mitigating and avoiding unnecessary adverse impacts
ofthe project but also for improving management decisions if long[-]term monitoring plots for
the remaining natural forests in the Freeport are established. These plots will also be useful for
the study of the dynamic interactions of terrestrial flora and fauna with climate change, farming
and other human activities and the resulting influences on soil, water, biodiversity, and other
vital ecosystem services in the Freeport.139
We agree with the appellate court that the alleged statements by these experts cannot be given weight
because they are hearsay evidence. None of these alleged experts testified before the appellate court to
confirm the pertinent contents of the Final Report. No reason appears in the records of this case as to
why the Casiño Group failed to present these expert witnesses.
We note, however, that these statements, on their face, especially the observations of Dr. Cruz, raise
serious objections to the environmental soundness of the project, specifically, the EIS thereof.It brings to
fore the question of whether the Court can, on its own, compel the testimonies of these alleged experts
in order to shed light on these matters in view of the rightat stake— not just damage to the environment
but the health, well-being and,ultimately, the livesof those who may be affected by the project.
The Rules of Procedure for Environmental Cases liberally provide the courts with means and methods to
obtain sufficient information in order to adequately protect orsafeguard the right to a healthful and
balanced ecology. In Section 6 (l)140 of Rule 3 (Pre-Trial), when there is a failure to settle, the judge shall,
among others, determine the necessity of engaging the services of a qualified expert as a friend of the
court (amicus curiae). While, in Section 12141 of Rule 7 (Writ of Kalikasan), a party may avail of discovery
measures: (1) ocular inspection and (2) production or inspection of documents or things. The liberality of
the Rules in gathering and even compelling information, specifically with regard to the Writ of Kalikasan,
is explained in this wise: [T]he writ of kalikasanwas refashioned as a tool to bridge the gap between
allegation and proof by providing a remedy for would-be environmental litigants to compel the
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 73
production of information within the custody of the government. The writ would effectively serve as a
remedy for the enforcement of the right to information about the environment. The scope of the fact-
finding power could be: (1) anything related to the issuance, grant of a government permit issued or
information controlled by the government or private entity and (2) [i]nformation contained in documents
such as environmental compliance certificate (ECC) and other government records. In addition, the [w]rit
may also be employed to compel the production of information, subject to constitutional limitations. This
function is analogous to a discovery measure, and may be availed of upon application for the writ.142
Clearly, in environmental cases, the power toappoint friends of the court in order to shed light on
matters requiring special technical expertise as well as the power to order ocular inspections and
production of documents or things evince the main thrust of, and the spirit behind, the Rules to allow the
court sufficient leeway in acquiring the necessary information to rule on the issues presented for its
resolution, to the end that the right toa healthful and balanced ecology may be adequately protected. To
draw a parallel, in the protection of the constitutional rights of an accused, when life or liberty isat stake,
the testimonies of witnesses may be compelled as an attribute of the Due Process Clause. Here, where
the right to a healthful and balanced ecology of a substantial magnitude is at stake, should we not tread
the path of caution and prudence by compelling the testimonies of these alleged experts?
After due consideration, we find that, based on the statements in the Final Report, there is no sufficiently
compelling reason to compel the testimonies of these alleged expert witnesses for the following reasons.
First, the statementsare not sufficiently specificto point to us a flaw (or flaws) in the study or
design/implementation (or some other aspect) of the project which provides a causal link or, at least, a
reasonable connection between the construction and operation ofthe project vis-à-vis potential grave
environmental damage. In particular, they do not explain why the Environmental Management Plan
(EMP) contained in the EIS of the project will notadequately address these concerns.
Second, some of the concerns raisedin the alleged statements, like acid rain, warming and acidification of
the seawater, and discharge of pollutants were, as previously discussed, addressed by the evidence
presented by RP Energy before the appellate court. Again, these alleged statements do not explain why
such concerns are not adequately covered by the EMP of RP Energy.
Third, the key observations of Dr. Cruz, while concededly assailing certain aspects of the EIS, do not
clearly and specifically establish how these omissions have led to the issuance of an ECC that will pose
significant negative environmental impacts once the project is constructed and becomes operational. The
recommendations stated therein would seem to suggest points for improvement in the operation and
monitoring of the project,but they do not clearly show why such recommendations are indispensable for
the project to comply with existing environmental laws and standards, or how non-compliance with such
recommendations will lead to an environmental damage of the magnitude contemplatedunder the writ
of kalikasan. Again, these statements do not state with sufficient particularity how the EMP in the EIS
failed to adequately address these concerns.
Fourth, because the reason for the non-presentation of the alleged expert witnesses does not appear on
record, we cannot assume that their testimonies are being unduly suppressed.
By ruling that we do not find a sufficiently compelling reason to compel the taking of the testimonies of
these alleged expert witnesses in relation to their serious objections to the power plant project, we do
not foreclose the possibility that their testimonies could later on be presented, in a proper case, to more
directly, specifically and sufficientlyassail the environmental soundness of the project and establish the
requisite magnitude of actualor threatened environmental damage, if indeed present. After all, their
sense ofcivic duty may well prevail upon them to voluntarily testify, if there are truly sufficient reasons
tostop the project, above and beyond their inadequate claims in the Final Report that the project should
not be pursued. As things now stand,however, we have insufficient bases to compel their testimonies for
the reasons already proffered.
The alleged admissions of grave
environmental damage in the EIS of the
project.
In their Omnibus Motions for Clarification and Reconsideration before the appellate court and Petition
for Review before thisCourt, the Casiño Group belatedly claims that the statements in the EIS prepared
by RPEnergy established the significant negative environmental impacts of the project. They argue in this
manner:
Acid Rain
35. According to RP Energy’s Environmental Impact Statement for its proposed 2 x 150 MW Coal-Fired
Thermal Power Plant Project, acid rain may occur in the combustion of coal, to wit – x x x x
During the operation phase, combustion of coal will result in emissions of particulates SOx and NOx. This
may contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels
of NO2 emissions may give rise to health problems for residents within the impact area.
xxxx
Asthma Attacks
36. The same EPRMP143 mentioned the incidence of asthma attacks [as a] result of power plant
operations, to wit –
xxxx
The incidence of asthma attacks among residents in the vicinity of the project site may increase due to
exposure to suspended particulates from plant operations.144
RP Energy, however, counters that the above portions of the EIS were quoted out of context. As to the
subject of acid rain, the EIS states in full:
Operation
During the operation phase, combustion of coal will result in emissions of particulates, SOx and NOx. This
may contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels
of NO2 emissions may give rise to health problems for residents within the impact area. Emissions may
also have an effect onvegetation (Section 4.1.4.2). However, the use of CFBC technology is a built-in
measure that results in reduced emission concentrations. SOx emissions will beminimised by the
inclusion of a desulfurisation process, whilst NOx emissions will be reduced as the coal is burned at a
temperature lower than that required to oxidise nitrogen.145 (Emphasis supplied)
As to the subject of asthma attacks, the EIS states in full:
The incidence of asthma attacks among residents in the vicinity of the project site may increase due to
exposureto suspended particulates from plant operations. Coal and ash particulates may also become
suspended and dispersed into the air during unloading and transport, depending on wind speed and
direction. However, effect on air quality due to windblown coal particulates will be insignificant as the
coal handling system will have enclosures (i.e. enclosed conveyors and coal dome) to eliminate the
exposure of coal to open air, and therefore greatly reduce the potential for particulates from being
carried away by wind (coalhandling systems, Section 3.4.3.3). In addition, the proposed process will
include an electrostaticprecipitator that will remove fly ash from the flue gas prior to its release through
the stacks, and so particulates emissions will be minimal.146 (Emphasis supplied)
We agree with RP Energy that, while the EIS discusses the subjects of acid rain and asthma attacks, it
goes on to state that there are mitigating measures that will be put in place to prevent these ill effects.
Quite clearly, the Casiño Group quoted piecemeal the EIS in sucha way as to mislead this Court as to its
true and full contents.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 74
 We deplore the way the Casiño Group has argued this point and we take this time to remind it that In sum, we agree with the appellate court that the Casiño Group failed to substantiate its claims thatthe
litigants should not trifle withcourt processes. Along the same lines, we note how the Casiño Group has construction and operation of the power plant will cause environmental damage of the magnitude
made serious allegations in its Petition for Writ of Kalikasanbut failed to substantiate the same in the contemplated under the writ of kalikasan. The evidence it presented is inadequate to establish the
course of the proceedings before the appellate court. In particular, during the preliminary conference of factual bases of its claims.
this case, the Casiño Group expressly abandoned its factual claims on the alleged grave environmental II.
damage that will be caused by the power plant (i.e., air, water and land pollution) and, instead, limited Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr. Aboitiz), as representative
itself to legal issues regarding the alleged non-compliance of RP Energy with certain laws and rules in the of RP Energy, in the Statement of Accountability of the ECC.
procurement of the ECC.147 We also note how the Casiño Group failed to comment on the subject The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to sign the Statement of
Petitions before this Court, which led this Court to eventually dispense with its comment.148 We must Accountability portion of the ECC.
1.0 SCREENING Screeningdetermines if a project is covered or not covered by the PEISS.154 If a project is covered, screening further We shall discuss the correctness ofthis ruling on both procedural and substantive grounds. Procedurally,
determines what document type the project should prepare to secure the needed approval, and what the rest of the we cannot fault the DENR for protesting the manner by which the appellate court resolved the issue of
requirements are in terms of EMB office of application, endorsing and decision authorities, duration of processing. the aforesaid lack of signature. We agree with the DENR that this issue was not among those raised by
2.0 SCOPING Scopingis a Proponent-driven multi-sectoral formal process of determining the focused Terms of Reference of the EIA the Casiño Group in its Petition for Writ of Kalikasan.149 What is more, this was not one of the triable
Study. Scoping identifies the most significant issues/impacts of a proposed project, and then, delimits the extent of issues specificallyset during the preliminary conference of this case.150
baseline information to those necessary to evaluate and mitigate the impacts. The need for and scope of an How then did the issue oflack of signature arise?
Environmental Risk Assessment (ERA) is also done during the scoping session. Scoping is done with the local A review of the voluminous records indicates that the matterof the lack of signature was discussed,
community through Public Scoping and with a third party EIA Review Committee (EIARC) through Technical Scoping,
both with the participation of the DENR-EMB. The process results in a signed Formal Scoping Checklist by the review developed or surfaced only inthe course of the hearings, specifically, on clarificatory questions from the
team, with final approval by the EMB Chief. appellate court, to wit:
J. LEAGOGO:
EIA STUDY and The EIA Studyinvolves a description of the proposed project and its alternatives, characterization of the project
3.0 REPORT environment, impact identification and prediction, evaluation of impact significance, impact mitigation, formulation I would also show to you your ECC, that’s page 622 of the rollo. I am showing to you this Environmental
PREPARATION of Environmental Management and Monitoring Plan, withcorresponding cost estimates and institutional support Compliance Certificate dated December 22, 2008 issued by Sec. Jose L. Atienza, Jr. of the DENR. This is
commitment. The study results are presented in an EIA Reportfor which an outline is prescribed by EMB for every your "Exhibit "18." Would you like to go over this? Are you familiar with this document?
major document type MS. MERCADO:
EIA REPORT Review of EIA Reportsnormally entails an EMB procedural screening for compliance with minimum requirements Yes, it[’]s my Annex "3," Your Honor.
4.0 REPORT specified during Scoping, followed by a substantive review of either composed third party experts commissioned by J. LEAGOGO:
and EMB as the EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB internal specialists, the Technical I would like to refer you to page 3 of the ECC dated December 22, 2008. Page 2 refers to the
EVALUATION Committee, for IEE-based applications. EMB evaluates the EIARC recommendations and the public’s inputs during
public consultations/hearings in the process of recommending a decision on the application. The EIARC Chair signs Environmental Compliance Certificate, ECC Ref. No. 0804-011-4021. That’s page 2 of the letter dated
EIARC recommendations including issues outside the mandate of the EMB. The entire EIA review and evaluation December 22, 2008. And on page 3, Dr. Julian Amador recommended approval and it was approved by
process is summarized in the Review Process Report (RPR) of the EMB, which includes a draft decision document. Sec. Atienza. You see that on page 3?
5.0 DECISION Decision Making involves evaluation of EIA recommendations and the draft decision document, resulting to the MS. MERCADO:
MAKING issuance of an ECC, CNC or Denial Letter. When approved, a covered project is issued its certificate of Environmental Yes, Your Honor.
Compliance Commitment (ECC) while an application of a non-covered project is issued a Certificate of Non-Coverage J. LEAGOGO:
(CNC). Endorsing and deciding authorities are designated by AO 155 42, and further detailed in this Manual for every Okay. On the same page, page 3, there’s a Statement of Accountability.
report type. Moreover, the Proponent signs a sworn statement of full responsibility on implementation of its
commitments prior to the release of the ECC. 156 The ECC is then transmitted to concerned LGUs and other GAs for MS. MERCADO:
integration into their decisionmaking process. The regulated part of EIA Review is limited to the processes within EMB Yes, Your Honor.
control. The timelines for the issuance of decision documents provided for in AO 42 and DAO 2003-30 are applicable J. LEAGOGO:
only from the time the EIA Report is accepted for substantive review to the time a decision is issued on the Luis, who is Luis Miguel Aboitiz?
application.
MS. MERCADO:
MONITORING. Monitoring, Validation and Evaluation/Audit stage assesses performance of the Proponent against the ECC and During that time he was the authorized representative of RP Energy,
6.0 itscommitments in the Environmental Management and Monitoring Plans to ensure actual impacts of the project are Your Honor.
VALIDATION, adequately prevented or mitigated.
and J. LEAGOGO:
EVALUATION/ Now, who is the authorized representative of RP Energy?
AUDIT MS. MERCADO:
express our disapproval over the way it has prosecuted itsclaims, bordering as it does on trifling with It would be Mr. Aaron Domingo, I believe.
court processes. We deem itproper, therefore, to admonishit to be more circumspect in how it J. LEAGOGO:
prosecutesits claims. Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 75
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, representing Redondo
Peninsula Energy with office address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full
responsibility in complying with all conditions in thisEnvironmental Compliance Certificate [ECC][.]" Will
you tell this Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who provided this, I
believe, to the lawyers. This copy was not signed because during….
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me that your
Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
That’s correct, Your Honor.151
We find this line of questioning inadequate to apprise the parties that the lack of signature would be a
key issue in this case; as in fact it became decisive in the eventual invalidation of the ECC by the appellate
court.
Concededly, a court has the power to suspend its rules of procedure in order to attain substantial justice
so that it has the discretion, in exceptional cases, to take into consideration matters not originally within
the scope of the issues raised in the pleadings or set during the preliminary conference, in order to
prevent a miscarriage of justice. In the case at bar, the importance of the signature cannot be seriously
doubted because it goes into the consent and commitment of the project proponent to comply with the
conditions of the ECC, which is vital to the protection of the right to a balanced and healthful ecology of
those who may be affected by the project. Nonetheless, the power of a court tosuspend its rules of
procedure in exceptional cases does not license it to foist a surprise on the parties in a given case. To
illustrate, in oral arguments before this Court, involving sufficiently important public interest cases, we
note that individual members of the Court, from time to time, point out matters that may not have been
specifically covered by the advisory (the advisory delineates the issues to be argued and decided).
However, a directive is given to the concerned parties to discuss the aforesaid matters in their
memoranda. Such a procedure ensures that, at the very least, the parties are apprised that the Court has
taken an interest in such matters and may adjudicate the case on the basis thereof. Thus, the parties are
given an opportunity to adequately argue the issue or meet the issue head-on. We, therefore, find that
the appellate court should have, at the very least, directed RP Energy and the DENR to discuss and
elaborate on the issue of lack of signature in the presentation of their evidence and memoranda,
beforemaking a definitive ruling that the lack thereof invalidated the ECC.This is in keeping with the basic
tenets of due process.
At any rate, we shall disregard the procedural defect and rule directly on whether the lack of signature
invalidated the ECC in the interest of substantial justice.
The laws governing the ECC, i.e., PresidentialDecree No. (PD) 1151 and PD 1586, do not specifically state
that the lack of signature in the Statement of Accountability has the effect of invalidating the ECC. Unlike
in wills or donations, where failure to comply withthe specific form prescribed by law leads to its
nullity,152 the applicable laws here are silentwith respect to the necessity of a signature in the Statement
of Accountability and the effect of the lack thereof. This is, of course, understandable because the
Statement of Accountability is a mere off-shoot of the rule-making powers of the DENR relative tothe
implementation of PD 1151 and PD 1586. To determine, therefore, the effect of the lack of signature, we
must look atthe significance thereof under the Environmental Impact Assessment (EIA) Rules of the DENR
and the surrounding circumstances of this case.
To place this issue in its proper context, a helpful overview of the stages of the EIA process, taken from
the Revised Manual, is reproduced below:
Figure 1-3 Overview of Stages of the Philippine EIA Process153
The signing of the Statement of Accountability takes placeat the Decision Making Stage. After a favorable
review of its ECC application, the project proponent, through its authorized representative, is made to
sign a sworn statement of full responsibility on the implementation ofits commitments prior to the
official release of the ECC.
The definition of the ECC in the Revised Manual highlights the importance of the signing of the Statement
of Accountability:
Environmental Compliance Certificate (ECC) - a certificate of Environmental Compliance Commitment to
which the Proponent conforms with, after DENR-EMB explains the ECC conditions, by signing the sworn
undertaking of full responsibility over implementation of specified measures which are necessary to
comply with existing environmental regulations or to operate within best environmental practices that
are not currently covered by existing laws. It is a document issued by the DENR/EMB after a positive
review of an ECC application, certifying that the Proponent has complied with all the requirements of the
EIS System and has committed to implement its approved Environmental Management Plan. The ECC
also provides guidance to other agencies and to LGUs on EIA findings and recommendations, which need
to be considered in their respective decision-making process.157 (Emphasis supplied)
As can be seen, the signing of the Statement of Accountabilityis an integral and significant component of
the EIA process and the ECC itself. The evident intention is to bind the project proponentto the ECC
conditions, which will ensure that the project will not cause significant negative environmental impacts
by the "implementation of specified measures which are necessary to comply with existing
environmental regulations or tooperate within best environmental practices that are not currently
covered by existing laws." Indeed, the EIA process would be a meaningless exercise if the project
proponent shall not be strictly bound to faithfully comply withthe conditions necessary toadequately
protect the right of the people to a healthful and balanced ecology.
Contrary to RP Energy’s position, we, thus, find that the signature of the project proponent’s
representative in the Statement of Accountability is necessary for the validity of the ECC. It is not, as RP
Energy would have it, a mere formality and its absence a mere formal defect.
The question then is, was the absence of the signature of Mr. Aboitiz, as representative of RP Energy, in
the Statement of Accountability sufficient ground to invalidate the ECC?
Viewed within the particular circumstances of this case, we answer in the negative.
While it is clear that the signing of the Statement of Accountability is necessary for the validity ofthe ECC,
we cannot close oureyes to the particular circumstances of this case. So often have we ruled that this
Court is not merely a court of law but a court of justice. We find that there are several circumstances
present in this case which militate against the invalidation of the ECC on this ground.
We explain.
First, the reason for the lack of signature was not adequately taken into consideration by the appellate
court. To reiterate, the matter surfaced during the hearing of this case on clarificatory questions by the
appellate court, viz:
J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, representing Redondo
Peninsula Energy with office address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full
responsibility in complying with all conditions in this Environmental Compliance Certificate [ECC][.]" Will
you tell this Court why this was not signed?
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 76
MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who provided this, I
believe, to the lawyers. This copy was not signed because during…
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me that your
Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
That’s correct, Your Honor.158 (Emphasis supplied)
Due to the inadequacy of the transcriptand the apparent lack of opportunity for the witness to explain
the lack of signature, we find that the witness’ testimony does not, by itself, indicate that there was a
deliberate or malicious intent not to sign the Statement of Accountability.
Second, as previously discussed, the concerned parties to this case, specifically, the DENR and RP Energy,
werenot properly apprised that the issue relative to the lack of signature would be decisive inthe
determination of the validity of the ECC. Consequently, the DENR and RPEnergy cannot be faulted for not
presenting proof during the course ofthe hearings to squarely tackle the issue of lack of signature.
Third, after the appellate court ruled in its January 30, 2013 Decision that the lack of signature
invalidated the ECC,RP Energy attached, to its Motion for Partial Reconsideration, a certified true copy of
the ECC, issued by the DENREMB, which bore the signature of Mr. Aboitiz. The certified true copy of the
ECC showed that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008.159
The authenticity and veracity of this certified true copy of the ECC was not controverted by the Casiño
Group in itscomment on RP Energy’s motion for partial reconsideration before the appellate court nor in
their petition before this Court. Thus, in accordance with the presumption of regularity in the
performance of official duties, it remains uncontroverted that the ECC on file with the DENR contains the
requisite signature of Mr. Aboitiz in the Statement of Accountability portion.
As previously noted, the DENR and RPEnergy were not properly apprised that the issue relative to the
lack ofsignature would be decisive in the determination of the validity of the ECC. As a result, we cannot
fault RP Energy for submitting the certified true copy of the ECC only after it learned that the appellate
court had invalidated the ECC on the ground of lack ofsignature in its January 30, 2013 Decision.
We note, however, that, as previously discussed, the certified true copy of the Statement of
Accountability was signed by Mr. Aboitiz on December 24, 2008 or two days after the ECC’s official
release on December 22, 2008. The aforediscussed rules under the Revised Manual, however, state that
the proponent shall sign the sworn statement of full responsibility on implementation of its
commitments priorto the release of the ECC. Itwould seem that the ECC was first issued, then it was
signed by Mr. Aboitiz, and thereafter, returned to the DENR to serve as its file copy. Admittedly, there is
lack of strict compliance with the rules although the signature ispresent. Be thatas it may, we find
nothing in the records to indicate that this was done with bad faith or inexcusable negligence because of
the inadequacy of the evidence and arguments presented, relative to the issue of lack of signature, in
view of the manner this issue arose in this case, as previously discussed. Absent such proof, we are not
prepared to rule that the procedure adopted by the DENR was done with bad faithor inexcusable
negligence but we remind the DENR to be more circumspect in following the rules it provided in the
Revised Manual. Thus, we rule that the signature requirement was substantially complied with pro hac
vice.
Fourth, we partly agree with the DENRthat the subsequent letter-requests for amendments to the ECC,
signed by Mr. Aboitiz on behalf of RP Energy, indicate its implied conformity to the ECC conditions. In
practical terms, if future litigation should occur due to violations of the ECC conditions, RP Energy would
be estopped from denying its consent and commitment to the ECC conditions even if there was no
signature in the Statement of Accountability. However, we note that the Statement of Accountability
precisely serves to obviate any doubt as to the consent and commitment of the project proponent to the
ECC conditions. At any rate, the aforesaid letter-requests do additionally indicate RP Energy’s conformity
to the ECC conditions and, thus, negate a pattern to maliciously evade accountability for the ECC
conditions or to intentionally create a "loophole" in the ECC to be exploited in a possible futurelitigation
over non-compliance with the ECC conditions.
In sum, we rule that the appellate court erred when it invalidated the ECC on the ground of lack of
signature of Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy of the ECC
submitted by RP Energy to the appellate court. While the signature is necessary for the validity of the
ECC, the particular circumstances of this case show that the DENR and RP Energy were not properly
apprised of the issue of lack ofsignature in order for them to present controverting evidence and
arguments on this point, as the matter only developed during the course of the proceedings upon
clarificatory questions from the appellate court. Consequently, RP Energy cannot be faulted for
submitting the certified true copy of the ECC only after it learned that the ECC had been invalidated on
the ground of lack of signature in the January 30, 2013 Decision of the appellate court.
The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of Accountability
portion, was issued by the DENR-EMB and remains uncontroverted. Itshowed that the Statement of
Accountability was signed by Mr. Aboitiz on December 24, 2008. Although the signing was done two days
after the official release of the ECC on December 22, 2008, absent sufficient proof, we are not prepared
to rule that the procedure adoptedby the DENR was done with bad faith or inexcusable negligence. Thus,
werule that the signature requirement was substantially complied with pro hac vice.
III.
Whether the first and second amendments to the ECC are invalid for failure to undergo a new
environmental impact assessment (EIA) because of the utilization of inappropriate EIA documents.
Upholding the arguments of the Casiño Group, the appellate court ruled that the first and second
amendments tothe ECC were invalid because the ECC contained an express restriction that any
expansion of the project beyond the project description shall be the subject of a new EIA. It found that
both amendments failed to comply with the appropriate EIA documentary requirements under DAO
2003-30 and the Revised Manual. In particular, it found that the Environmental Performance Report and
Management Plan (EPRMP) and Project Description Report (PDR), which RP Energy submitted tothe
DENR, relative to the application for the first and second amendments, respectively, were not the proper
EIA document type. Hence, the appellate court ruled that the aforesaid amendments were invalid.
Preliminarily, we must state that executive actions carry presumptive validity so that the burden of proof
is on the Casiño Group to show that the procedure adopted bythe DENR in granting the amendments to
the ECC were done with grave abuse of discretion. More so here because the administration of the EIA
process involves special technical skill or knowledge which the law has specifically vested in the DENR.
After our own examination of DAO 2003-30 and the Revised Manual as well as the voluminous EIA
documents of RP Energy appearing in the records of this case, we find that the appellate court made an
erroneous interpretation and application of the pertinent rules.
We explain.
As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this law recognized the right
ofthe people to a healthful environment.160 Pursuant thereto, in every action, project or undertaking,
which significantly affects the quality of the environment, all agencies and instrumentalities of the
national government, including government-owned or -controlled corporations, as well as private
corporations, firms, and entities were required to prepare, file and include a statement (i.e.,
Environmental Impact Statement or EIS) containing:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 77
 (a) the environmental impact of the proposed action, project or undertaking;
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are consistent
with the maintenance and enhancement of the longterm productivity of the same; and
(e) whenever a proposal involves the use of depletable or non-renewable resources, a finding
must be made that such use and commitment are warranted.161
To further strengthen and develop the EIS, PD1586 was promulgated, which established the Philippine
Environmental Impact Statement System (PEISS). The PEISS is "a systems-oriented and integrated
approach to the EIS system to ensure a rational balance between socio-economic development and
environmental protection for the benefit of present and future generations."162 The ECC requirement
ismandated under Section 4 thereof:
SECTION 4. Presidential Proclamation ofEnvironmentally Critical Areas and Projects. The President of the
Philippines may, on his own initiative or upon recommendation of the National Environmental Protection
Council, by proclamation declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation shall undertake or operate any such
declared environmentally critical project or area without first securing an Environmental Compliance
Certificate issued by the President or his dulyauthorized representative. x x x (Emphasis supplied)
The PEISS consists of the Environmental Impact Assessment (EIA) process, which is mandatory for private
orpublic projects thatmay significantly affect the quality of the environment. It involves evaluating and
predicting the likely impacts of the project on the environment, designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to protect the environment and
the community’s welfare.163
PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or procedure to determine
when a project is required to secure an ECC and when it is not. When an ECC is not required, the project
proponent procures a Certificate of Non-Coverage (CNC).164 As part of the EIA process, the project
proponent is required to submit certain studies or reports (i.e., EIA document type) to the DENR-EMB,
which willbe used in the review process in assessing the environmental impact of the project and the
adequacy of the corresponding environmental management plan or program to address such
environmental impact. This will then be part of the bases to grant or deny the application for an ECC or
CNC, as the case may be.
Table 1-4 of the Revised Manual summarizes the required EIA document type for each project category.
It classifies a project as belonging to group I, II, III, IV or V, where:
I- Environmentally Critical Projects (ECPs) in either Environmentally Critical Area (ECA) or Non-
Environmentally Critical Area (NECA),
II- Non-Environmentally Critical Projects (NECPs) in ECA,
III- NECPs in NECA,
IV- Co-located Projects, and
V- Unclassified Projects.
The aforesaid table then further classifies a project, as pertinent to this case, as belonging to category
A,B or C, where:
A- new;
B- existing projects for modification or re-start up; and
C- operating projects without an ECC.
Finally, the aforesaid table considers whether the project is single or co-located.165 After which, it states
the appropriateEIA document typeneeded for the application for an ECC or CNC, as the case may be.
The appropriate EIA document type vis-à-vis a particular project depends on the potential significant
environmental impact of the project. At the highest level would be an ECP, such as the subject project.
The hierarchy of EIA document type, based on comprehensiveness and detail of the study or report
contained therein, insofar as single projects are concerned, is as follows:
1. Environmental Impact Statement166 (EIS),
2. Initial Environmental Examination167 (IEE) Report,
3. Initial Environmental Examination168 (IEE) Checklist Report,
4. Environmental Performance Report and Management Plan169 (EPRMP), and
5. Project Description170 (PD) or Project Description Report (PDR).
Thus, in the course of RP Energy’s application for anECC, it was required by the DENR-EMB to submit an
EIS because the subject project is: an ECP, new and a single project.
The present controversy, however, revolves around, not an application for an ECC, but amendments
thereto.
RP Energy requested the subject first amendment to its ECC due to its desire to modify the project design
through the inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw
water collection system, drainage channel improvement and a 230-kV double transmission line. The
DENR-EMB determined that this was a major amendment and, thus, required RP Energy to submit an
EPRMP.
The Casiño Group argued, and the appellate court sustained, that an EPRMP is not the correct EIA
document type based on the definition of an EPRMP in DAO 2003-30 and the Revised Manual.
In DAO 2003-30, an EPRMP is defined as:
Environmental Performance Report and Management Plan (EPRMP) — documentation of the actual
cumulative environmental impacts and effectiveness of current measures for single projects that are
already operating but without ECC's, i.e., Category A-3. For Category B-3 projects, a checklist form of the
EPRMP would suffice;171 (Emphasis supplied)
Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required for "A-2: Existing and to
beexpanded (including undertakings that have stopped operations for more than 5 years and plan to re-
start with or without expansion) and A-3: Operating without ECC."
On the other hand, the Revised Manual delineates when an EPRMP is the proper EIA document type,
thus:
For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-
start operations, or for projects operating without an ECCbut applying to secure one to comply with PD
1586 regulations, the appropriate document is not an EIS but an EIA Report incorporating the project’s
environmental performance and its current Environmental Management Plan. This report isx x x anx x x
Environmental Performance Report and Management Plan (EPRMP) for single project applications x x
x172 (Emphasis supplied)
In its "Glossary," the Revised Manual defines an EPRMP as:
Environmental Performance Report and Management Plan (EPRMP) - documentation of the actual
cumulative environmental impacts and effectiveness of current measures for single projects that are
already operating but without ECCs.173 (Emphasis supplied)
Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for "Item I-B: Existing Projects
for Modification or Re-start up (subject to conditions in Annex 2-1c) and I-C: Operating without ECC."
From these definitions and tables, an EPRMP is, thus, the required EIA document type for an ECP-single
project which is:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 78
 1. Existing and to be expanded (including undertakings that have stopped operations for more 3. Extension of ECC validity component of the original project
than 5 years and plan to re-start with or without expansion); 4. Change in company name/ownership 3. Change/s in process flow or technology
2. Operating but without ECCs; 5. Decrease in land/project area or production 4. Addition of new product
3. Operating projects with previous ECCs but planning or applying for clearance to capacity 5. Integration of ECCs for similar or dissimilar but
modify/expand orre-start operations; and 6. Other amendments deemed contiguous projects (NOTE: ITEM#5 IS PROPONENT’S
4. Existing projects for modification or re-start up. "minor" at the discretion of the OPTION, NOT EMB’S)
It may be observed that, based from the above, DAO2003-30 and the Revised Manual appear to use the EMB CO/RO Director 6. Revision/Reformatting of ECC Conditions
terms "operating"and "existing" interchangeably. In the case at bar, the subject project has not yet been 7. Other amendments deemed "major" at the discretion
constructed although there have been horizontal clearing operations at the project site. of the EMB CO/RO Director
On its face, therefore, the theory of the Casiño Group, as sustained by the appellate court — that the
EPRMP is not the appropriate EIA document type— seems plausible because the subject project is not: 1 [Start] 1[Start]
(1) operating/existing with a previous ECC but planning or applying for modification or expansion, or (2)
Within three (3) years from ECC issuance (for Within three (3) years from ECC issuance (for projects
operating but without an ECC. Instead, the subject project is an unimplemented or a non-implemented,
projects not started)176 OR at any time during not started)177 OR at any time during project
hence,non-operating project with a previous ECC but planning for modification or expansion.
project implementation, the Proponent prepares implementation, the Proponent prepares and submits to
The error in the above theory lies in the failure to consider or trace the applicable provisions of DAO
and submits to the ECC-endorsing DENR-EMB the ECC-endorsing DENR-EMB office a LETTER-
2003-30 and the Revised Manual on amendments to an ECC.
office a LETTER-REQUEST for ECC amendment, REQUESTfor ECC amendments, including
The proper starting point in determining the validity of the subject first amendment, specifically, the
including data/information, reports or documents data/information, reports or documents to substantiate
propriety of the EIA document type (i.e., EPRMP) which RP Energy submitted in relation to its application
to substantiate the requested revisions. the requested revisions.
for the aforesaid amendment, must of necessity be the rules on amendments to an ECC.174 This is
principally found in Section 8.3,Article II of DAO 2003-03, viz: 2
8.3 Amending an ECC
Requirements for processing ECC amendments shall depend on the nature of the request but shall be For projects that have started implementation, EMB
focused on the information necessary to assess the environmental impact of such changes. 2 evaluates request based on Annex 2-1cfor various
8.3.1. Requests for minor changes to ECCs such as extension of deadlines for scenarios of project modification. Documentary
submission of post-ECC requirements shall be decided upon by the endorsing authority. requirements may range from a Letter-Request to an
8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding EPRMP to the EMB CO/RO while for those with
authority. Programmatic ECC, a PEPRMP may need to be
8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the submitted to the EMB CO to support the request. It is
amendment application shall not exceed thirty (30) working days; and for ECCs issued important to note that for operating projects, the
pursuant to an EIS, the processing shall not exceed sixty (60) working days. Provisions appropriate document is not an EIS but an EIA Report
on automatic approval related to prescribed timeframes under AO 42 shall also apply incorporating the project’s historical environmental
for the processing of applications to amend ECCs. (Emphasis supplied) performance and its current EMP, subject to specific
Implementing the afore-quoted section, the Revised Manual pertinently states in Section 2.2, paragraph documentary requirements detailed in Annex 2-1cfor
16: every modification scenario.
16) Application Process for ECC Amendments
Figure 2-4 presents how Proponents may request for minor or major changes in their ECCs. Annex 2-1c 3
provides a decision chart for the determination of requirements for project modifications, particularly for
delineating which application scenarios will require EPRMP (which will be subject to Figure 2-1 process)
or other support documentations (which will be subject to Figure 2-4 process). Figure 2-4, in turn, The ECC-endorsing EMB office assigns a Case For EPRMP/PEPRMP-based requests, EMB forms a
provides: Handler to evaluate the request Technical/Review Committee to evaluate the request.
Figure 2-4. Flowchart on Request for ECC Amendments175 For other requests, a Case Handler may solely undertake
Scenario 1: Request for Minor Amendments Scenario 2: Request for Major Amendments the evaluation. EMB CO and RO will process P/EPRMP
1. Typographical error 1. Expansion of project area w/in catchment described for PECC/ECC under Groups I and II respectively. (Go to
2. Extension of deadlines for submission of post- in EIA Figure 2-1)
ECC requirement/s 2. Increase in production capacity or auxiliary 3 4

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 79

 2. Expansion of land/project It is assumed the modification ECC Amendment /Environmental
area OUTSIDE catchment or proposal may have significant Performance Report and
ECC-endorsing Authority decides on the Letter- ECC-endorsing/issuing Authority (per Table 1-4) decides environment described in potential impacts due to absence Management Plan (EPRMP)
Request, based on CH recommendation on Letter Requests/EPRMP/PEPRMP/Other documents the original EIA Report of prior assessment as to how the
based on EMB CH and/or Tech/Review Committee project may affect the proposed
recommendations. expansion area

Maximum Processing Time to Issuance of Decision Max Processing Time to Issuance of Decision 3. Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter Request
auxiliary component of the covered project) threshold is with brief description of additional
EMB CO 7 workdays CO PEPRMP CO EPRMP RO RO original project which will assumed that impacts are not capacity or component
PEPRMP EPRMP eithernot entail exceedance significant;
of PDR (non-covered Modification scenario and decision
EMB RO 7 workdays 120 90 60 30
project) thresholds or EMP process are applicable to both
workdays workdays workdays workdays
& ERA can still address nonimplemented and operating
  Other document applications: max 30 workdays (EMB impacts & risks arising from projects issued ECCs
CO and RO) modification

  4. Increase in capacity or Exceedance of PDR (non-covered) ECC Amendment /Environmental

auxiliary component of the threshold is assumed that impacts Performance Report and
original project which will may be potentially significant, Management Plan (EPRMP)
either exceed PDR particularly if modification will
Noteworthy in the above, which is pertinent to the issue at hand, is that the amendment process
(noncovered project) result to a next higher level of
squarely applies to projects not started, such as the subject project, based on the phrase "[w]ithin three
thresholds, or EMP & ERA threshold range
(3) years from ECC issuance (for projects not started) x x x".
cannot address impacts and Modification scenario and decision
Annex 2-1c, in turn, provides a "Decision Chart for Determination of Requirements For Project
risks arising from process are applicable to both
Modification." We reproduce below the first three columns of Annex 2-1c, as are pertinent to the issue at
modification nonimplemented and operating
hand:
projects with or without issued
ANNEX 2-1c
ECCs
DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT MODIFICATION178
        Proposed Modifications to the         Analysis of Proposed Resulting Decision Document/Type 5. Change/s in process flow or EMP and ERA can still address ECC Amendment /Letter Request
Current Project     Modifications of EIA Report Required technology impacts & risks arising from with brief process description
modification
Operational projects, or those
which have stopped for ≤5 years EMP and ERA cannot address ECC Amendment /Environmental
and plan to re-start impacts & risks arising from Performance Report and
modification Management Plan (EPRMP)
For Groups I and II EISbased
Projects with an ECC applying for 6. Additional component or Activity is directly lessening or ECC Amendment /Letter Request
modification products which will mitigating the project’s impacts on with consolidated Project
enhance the environment the environment. However, to Description Report of new project
1. Expansion of land/project Since the modification will be in an ECC Amendment /Letter Request (e.g. due to compliance to ensure there is no component in component and integrated EMP
area w/in catchment or area already described and with brief description of activities new stringent the modification which fall under
environment described in evaluated in the original EIA in the additional area requirements) or lessen covered project types, EMB will
the original EIA Report Report, incremental impacts from impacts on the require disclosure of the
additional land development will environment (e.g. thru description of the components and
have been addressed in the utilization of waste into process with which the new
approved EMP new products) product will be developed.

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 80

7. Downgrade project size or No incremental adverse impacts; From ECC Amendment to Relief of 4. Addition of new product
area or other units of may result to lower project ECC Commitments (Conversion to 5. Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5 IS
measure of thresholds threshold or may result to non- CNC): /Letter-Request only PROPONENT’S OPTION, NOT EMB’S)
limits coverage 6. Revision/Reformatting of ECC Conditions
7. Other amendments deemed "major at the discretion of the EMB CO/RO Director
8. Conversion to new project Considered new application but New ECC /EIS The Casiño Group does not controvert this finding by the DENR-EMB and we find the same reasonably
type (e.g. bunker-fired plant with lesser data requirements supported by the evidence on record considering that, among others, the construction of a 230-kVdouble
to gas-fired) since most facilities are transmission line would result in major activities outside the project site which could have significant
established; environmental environmental impacts.
performance in the past will serve Consequently, the amendment was considered asfalling under Item#4 of Annex 2-1c, and, thus, the
as baseline; However, for appropriate EIA document typeis an EPRMP, viz:
operating projects, there may be 4. Increase in capacity or Exceedance of PDR (non-covered) ECC Amendment /Environmental
need to request for Relief from auxiliary component of the thresholds is assumed that Performance Report and
ECC Commitment prior to applying original project which will impacts may be potentially Management Plan (EPRMP)182
for new project type to ensure no either exceed PDR (non- significant, particularly if
balance of environmental covered project) thresholds, modification will result to a next
accountabilities from the current or EMP & ERA cannot address higher level of threshold range
project impacts and risks arising from Modification scenario and decision
9. Integration of ECCs for No physical change in project ECC Amendment /Letter Request modification process are applicable to both
similar or contiguous size/area; no change in with consolidated Project nonimplemented and operating
projects process/technology but improved Description Report and integrated projects with or without issued
(Note: Integration of ECCs is management of continuous EMP ECCs181
at the option of the projects by having an integrated Note that the Chart expressly states that, "[m]odification scenario and decision process are applicable to
Proponent to planning document in the form or both non-implementedand operating projects withor without ECCs."183 To recall, the subject project has
request/apply) an integrated ECC (ECC conditions not been constructed and is not yet operational, although horizontal clearing activities have already been
will be harmonized across undertaken at the project site. Thus, the subject project may be reasonably classified as a non-
projects; conditions relating to implemented project with an issued ECC, which falls under Item#4 and, hence, an EPRMP is the
requirements within other appropriate EIA document type.
agencies’ mandates will be This lengthy explanation brings us toa simple conclusion. The definitions in DAO 2003-30 and the Revised
deleted) Manual, stating that the EPRMP is applicable to (1) operating/existing projectswith a previous ECC but
planning or applying for modification or expansion, or (2) operating projects but without an ECC, were
10. Revision/ Reformatting of No physical change on the project ECC Amendment /Letter Request
not an exclusive list.
ECC Conditions but ECC conditions relating to only
The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly show that the EPRMP can,
requirements within other
likewise, be used as an appropriate EIA document type for a single, non-implemented project applying
agencies’ mandates will be deleted
for a major amendment to its ECC, involving an increase in capacity or auxiliary component, which will
We now apply these provisions to the case at bar. exceed PDR (non-covered project) thresholds, or result in the inability of the EMP and ERA to address the
To reiterate, the first amendment to the ECC was requested by RP Energy due to its planned change of impacts and risks arising from the modification, such as the subject project.
project design involving the inclusion of a barge wharf, seawater intake breakwater, subseadischarge That the proposed modifications in the subject project fall under this class or type of amendment was a
pipeline, raw water collection system, drainage channel improvement and a 230-kV double transmission determination made by the DENR-EMBand, absent a showing of grave abuse of discretion, the DENR-
line. The DENR-EMB determined179 that the proposed modifications involved a major amendment EMB’s findings are entitled to great respect because it is the administrative agency with the special
because it will result in anincrease in capacity or auxiliary component, as per Scenario 2,Item #2 of Figure competence or expertise to administer or implement the EIS System. The apparent confusion of the
2-4: Casiño Group and the appellate court is understandable. They had approached the issue with a legal
Scenario 2: Request for Major Amendments training mindset or background. As a general proposition, the definition of terms in a statute or rule is
1. Expansion of project area w/in catchment described in EIA controlling as to its nature and scope within the context of legal or judicial proceedings. Thus, since the
2. Increase in production capacity or auxiliary component of the original project180
3. Change/s in process flow or technology
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 81
procedure adopted by the DENR-EMB seemed to contradict or go beyond the definition of terms in the
relevant issuances, the Casiño Group and the appellate court concluded that the procedure was infirm.
However, a holistic reading of DAO2003-30 and the Revised Manual will show that such a legalistic
approach inits interpretation and application is unwarranted. This is primarily because the EIA process is
a system, not a set of rigid rules and definitions. In the EIA process, there is much room for flexibility in
the determination and use ofthe appropriate EIA document type as the foregoing discussion has
shown.184 To our mind, whatshould be controlling is the guiding principle set in DAO 2003-30 in the
evaluation of applications for amendments to ECCs, as stated in Section 8.3 thereof: "[r]equirements for
processing ECC amendments shall depend on the nature of the requestbut shall be focused on
theinformation necessary to assess the environmental impact of such changes."185
This brings us to the next logicalquestion, did the EPRMP provide the necessary information in order for
the DENR-EMB to assess the environmental impact of RP Energy’s request relative to the first
amendment?
We answer in the affirmative.
In the first place, the Casiño Group never attempted to prove that the subject EPRMP, submitted by RP
Energy to the DENR-EMB, was insufficient for purposes of evaluating the environmental impact of the
proposed modifications to the original project design. There is no claim that the data submitted were
falsified or misrepresented. Neither was there an attempt to subpoena the review process documents of
the DENR to establish thatthe grant of the amendment to the ECC was done with grave abuse of
discretion or to the grave prejudice of the right to a healthful environment of those who will beaffected
by the project. Instead, the Casiño Group relied solely on the definition of terms in DAO 2003-30 and the
Revised Manual, which approach, as previously discussed,was erroneous.
At any rate, we have examined the contents of the voluminous EPRMP submitted by RP Energy and
wefind therein substantial sections explaining the proposed changes as well as the adjustments that will
be made in the environmental management plan in order to address the potential environmental
impacts of the proposed modifications to the original project design. These are summarized in the
"Project Fact Sheet"186 of the EPRMP and extensively discussed in Section 4187 thereof. Absent any claim
or proof to the contrary, we have no bases to conclude that these data were insufficient to assess the
environmental impact of the proposed modifications. In accordance with the presumption of regularity in
the performance of official duties, the DENR-EMB must be deemed to have adequately assessed the
environmental impact of the proposed changes, before granting the request under the first amendment
to the subject ECC.
In sum, the Revised Manual permits the use of an EPRMP, as the appropriate EIA document type, for
major amendments to an ECC, even for an unimplemented or non-implementedproject with a previous
ECC, such as the subject project. Consequently, we find that the procedure adopted by the DENR, in
requiring RP Energy to submitan EPRMP in order to undertake the environmental impact assessment of
the planned modifications to the original project design, relative to the first amendment to the ECC,
suffers from no infirmity.
We apply the same framework of analysis in determining the propriety of a PDR, as the appropriate EIA
document type, relative to the second amendment to the subject ECC.
Again, the Casiño Group, as sustained by the appellate court, relied on the definitions of a PDR in DAO
2003-30 and the Revised Manual:
Project Description (PD) — document, which may also be a chapter in an EIS, that describes the nature,
configuration, use of raw materials and natural resources, production system, waste or pollution
generation and control and the activities of a proposed project. It includes a description of the use of
human resources as well as activity timelines, during the pre-construction, construction, operation and
abandonment phases. It is tobe used for reviewing co-located and single projects under Category C,
aswell as for Category D projects.188
xxxx
a) For new projects: x x x For non-covered projects in Groups II and III, a x x x Project Description Report
(PDR) is the appropriate document to secure a decision from DENR/EMB. The PDR is a "must"
requirement for environmental enhancement and mitigation projects in both ECAs (Group II) and NECAs
(Group III) to allow EMB to confirm the benign nature of proposed operations for eventual issuance of a
Certificate ofNon-Coverage (CNC). All other Group III (non-covered) projects do not need to submit PDRs
– application is at the option of the Proponent should it need a CNC for its own purposes, e.g. financing
pre-requisite. For Group V projects, a PDR is required to ensure new processes/technologies or any new
unlisted project does not pose harm to the environment. The Group V PDR is a basis for either issuance
of a CNC or classification of the project into its proper project group.
b) For operating projects with previous ECCs but planning or applying for clearance to modify/expand or
re-start operations, or for projects operating without an ECC but applying to secure oneto comply with
PD 1586 regulations, the appropriate document is not an EIS but an EIA Report incorporating the
project’s environmental performance and its current Environmental Management Plan. This report is
either an (6) Environmental Performance Report and Management Plan (EPRMP) for single project
applications or a (7) Programmatic EPRMP (PEPRMP) for co-located project applications. However, for
small project modifications, an updating of the project description or the Environmental Management
Plan with the use of the proponent’s historical performance and monitoring records may suffice.189
xxxx
Project Description (PD) - document, which may also be a chapter in an EIS, that describes the nature,
configuration, use of raw materials and natural resources, production system, waste or pollution
generation and control and the activities of a proposed project. It includes a description of the use of
human resources as well as activity timelines, during the pre-construction, construction, operation and
abandonment phases.190
We will no longer delve intothe details of these definitions. Suffice it to state, similar to the discussion on
the EPRMP, that if we go by the strict limits of these definitions, the PDR relative to the subject second
amendment would not fall squarely under any of the above.
However, again, these are not the only provisions governing the PDR in the Revised Manual.
After the favorable grant of the first amendment, RP Energy applied for another amendment to its ECC,
this time inconsideration of its plan to change the configuration of the project from 2 x 150 MWto 1 x
300 MW. In practical terms, this meant that the subject project will still produce 300 MW of electricity
but will now make use of only one boiler (instead of two) to achieve greater efficiency in the operations
of the plant. The DENR-EMB determined191 this amendment to be minor, under Scenario 1, Item#6 of
Figure 2-4:
Scenario 1: Request for Minor
Amendments
1. Typographical error
2. Extension of deadlines for submission of post-ECC requirement/s
3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or production capacity
6. Other amendments deemed "minor" at the discretion of the EMB CO/RO Director192
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 82
 — because (1) there is no increase in capacity; (2) it does not constitute any significant impact; and (3) its
EMP and ERA as specified in the submitted EPRMP remain the same.193 Relative to Annex 2-1c, the
requested amendment was, in turn, determinedto fall under Item#3:
3. Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter Request
auxiliary component of the covered project) thresholds is with brief description of additional
original project which will assumed that impacts are not capacity or component195
either not entail exceedance significant;
of PDR (non-covered project) Modification scenario and decision
thresholds or EMP & ERA can process are applicable to both
still address impacts & risks non-implemented and operating
arising from modification projects issued ECCs194
We make the same observation, as before, that the above applies to an unimplemented or non-
implemented project with a previous ECC, like the subject project. Although it may be noted thatthe
proposed modification does not squarely fall under Item#3, considering that, as previously
mentioned,there will be no increase in capacity relative to the second amendment, still, we find nothing
objectionable to this classification by the DENR-EMB, for it seems plain enough that this classification was
used because the modification was deemed too minor to require a detailed project study like an EIS or
EPRMP. Since this is the classification most relevant and closely related to the intended amendment,
following the basic precept that the greater includes the lesser, the DENR-EMB reasonably exercised its
discretion in merely requiring a letter request with a brief description of the modification.
As earlier noted, the PDR is the EIA document type with the least detail, and, thus, applicable to such
minor modifications. Thus, the DENR-EMB cannot be faulted for requiring RPEnergy to submit a PDR
relative to its application for the second amendment. Consequently, as before, we findthat the Revised
Manual supports the procedure adopted by the DENR-EMB in requiring RP Energy to submit a PDR in
order to assess the environmental impact of the planned modifications relative to the second
amendment.
In their Petition before this Court, the Casiño Group boldly asserts that "[t]here is nothing in the Project
Description Report that provides an environmental impact assessment of the effects of constructing and
operating a single 300-MW generating unit."196 However, to our dismay, as in their other serious
allegations in their Petition for Writ ofKalikasan, the same is, likewise, baseless. Apart from such a
sweeping claim, the Casiño Group has provided no evidence or argument to back up the same.
An examination of the PDR readily reveals that it contains the details of the proposed
modifications197 and an express finding that no significant environmental impact will be generated bysuch
modifications, as in fact it is expected that the operation of the power plant will become more efficient
as a result of the change from 2 x 150 MW to 1 x 300 MW configuration.198 Consequently, the PDR merely
reiterates the same mitigating measures that will presumably address the minor modifications to the
project design. Again, no evidence was presented to show substantial errors or misrepresentations in
these data or their inadequacy for providing the bases for the DENR-EMB to assess the environmental
impact of the proposed modifications under the second amendment.
In fine, absent proof to the contrary, bearing in mind that allegations are not proof, we sustain the
procedure adoptedby the DENR-EMB in requiring RP Energy to submit a PDR and, on the basis thereof,
approving the request for the second amendment.
In another vein, we note that the appellate court proceeded from the erroneous premise that the EIA is a
document, when it repeatedly stated that the amendments to the ECC require a new EIA, and not merely
an EPRMP or PDR. The appellate court relied on the provisoin the ECC, which stated that "[a]ny
expansion of the project beyond the project description or any change in the activity or transfer of
location shall besubject to a new Environmental Impact Assessment."199
However, as correctly pointed out by the DENR and RP Energy, the EIA is not a document but a process:
Environmental Impact Assessment (EIA) — processthat involves evaluating and predicting the likely
impacts of a project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to protect the environment and
the community's welfare.The process is undertaken by, among others, the project proponent and/orEIA
Consultant, EMB, a Review Committee, affected communities and other stakeholders.200 (Emphasis
supplied)
When the provisoin the ECC, therefore, states that a new EIA shall beconducted, this simply means that
the project proponent shall be required to submit such study or report, as warranted by the DENR Rules
and circumstances, which will sufficiently aid the DENR in making a new EIA and, thus, determine
whether to grant the proposed amendment (or project modification). Aswe have seen, consistent with
DAO 2003-30 and the Revised Manual, the DENR required RP Energy to submit an EPRMP and a PDR
relative to the latter’s request involving the first and second amendments, respectively, which led to the
new EIA of the project in compliance with the provisoof the ECC.
Verily, the various EIA documents, such as the EPRMP and PDR, are mere tools used by the DENR to
assess the environmental impact of a particular project. These documents are flexibly used by the DENR,
as the circumstances warrant, in order to adequately assess the impacts of a new project or
modifications thereto. Being the administrative agency entrusted with the determination of which EIA
document type applies to a particular application for an amendment to an ECC, falling as it does within
its particular technical expertise, wemust accord great respect to its determination, absent a showing of
grave abuse of discretion or patent illegality.
In sum, we find that the appellate court erred when it ruled that the first and second amendments to the
subject ECC wereinvalid for failure to comply with a new EIA and for violating DAO 2003-30 and the
Revised Manual. The appellate court failed to properly consider the applicable provisions in DAO 2003-30
and the Revised Manual on amendments to ECCs. Our examination of the provisions on amendments to
ECCs, as well as the EPRMP and PDR themselves, shows that the DENR reasonably exercised its discretion
in requiring an EPRMP and a PDR for the first and second amendments, respectively. Through these
documents, which the DENR reviewed, a new EIA was conducted relative to the proposed project
modifications. Hence, absent sufficient showing of grave abuse of discretion or patent illegality, relative
to both the procedure and substance of the amendment process, we uphold the validity of these
amendments.
IV.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a precondition to the
issuance of anECC and the lack of its prior issuance rendered the ECC invalid.
The appellate court ruled that the ECC issued in favor of RP Energy on December 22, 2008 is invalid
because the CNO covering the subject project was issued only on October 31, 2012 or almost fouryears
from the timeof issuance of the ECC. Thus, the ECC was issued in violation of Section 59 of the IPRA Law
and its implementing rules which require that a CNO be obtained prior to the issuance of a government
agency of, among others, a license or permit. In so ruling, the appellate court implicitly upheld the Casiño
Group’s argument that the ECC is a form of government license or permit pursuant to Section 4 of PD
1586 which requires all entities to securean ECC before (1) engaging in an environmentally critical project
or (2) implementing a project within an environmentally critical area.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 83
The DENR and RP Energy, however, argue that an ECC is not the license or permit contemplated under
Section 59 of the IPRA Law and its implementing rules as may be deduced from the definition, nature and
scope of an ECC under DAO 2003-03 and the Revised Manual. The DENR explains that the issuance of an
ECC does not exempt the project proponent from securing other permits and clearances as required
under existing laws, including the CNO, and that the final decision on whether a project will be
implemented lies with the concerned local government unit/s or the lead government agency which has
sectoral mandate to promote the government programwhere the project belongs.
We agree with the DENR and RP Energy.
Section 59, Chapter VIII of the IPRA Law provides:
SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be
strictly enjoined from issuing, renewing, or granting any concession,license or lease, or entering into any
production-sharing agreement, without prior certification from the NCIP that the area affected does not
overlap with any ancestral domain.Such certification shall only be issued after a field-based investigation
is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall
be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned:
Provided, further, That no department, government agency or government-owned or -controlled
corporation may issue new concession, license, lease, or production sharing agreement while there is a
pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or
suspend, in accordance with this Act, any project that has not satisfied the requirement of this
consultation process. (Emphasis supplied)
While Section 9, Part II, Rule VIII of National Commission on Indigenous Peoples (NCIP) Administrative
Order No. 01-98201 states:
SECTION 9. Certification Precondition Prior to Issuance of any Permits or Licenses. —
a. Need for Certification. No department of government or other agencies shall issue, renew or
grant anyconcession, license, lease, permit, or enter into any production sharing agreement
without a prior certification from the NCIP that the area affected does not overlap any ancestral
domain.
b. Procedure for Issuance ofCertification by NCIP.
1) The certification, above mentioned, shall be issued by the Ancestral Domain Office,
only after a field based investigation that such areas are not within any certified or
claimed ancestral domains.
2) The certification shall be issued only upon the free, prior, informed and written
consent of the ICCs/IPs who will be affected by the operation of such concessions,
licenses or leases or production-sharing agreements. A written consent for the issuance
of such certification shall be signed by at least a majority of the representatives of all
the households comprising the concerned ICCs/IPs. (Emphasis supplied)
As may be deduced from its subtitle, Section 59 requires as a precondition, relative to the issuance of any
concession, license, lease or agreement over natural resources, a certification issued by the NCIP that the
area subject thereof does not lie within any ancestral domain.202 This is in keeping with the State policy to
protect the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral
domains in order to ensure their economic, social and cultural well-being as well as to recognize the
applicability of customary laws governing property rights or relations in determining the ownership and
extent of such ancestral domain.203
The IPRA Law and its implementing rules do not define the terms "license" and "permit" so that resort to
their plain or ordinary meaning in relation to the intendment of the law is appropriate.
A "license" has been defined as "a governmental permission to perform a particular act (such as getting
married), conduct a particular business or occupation, operate machinery or vehicles after proving
capacity and ability to do so safely, or use property for a certain purpose"204 while a "permit" has been
defined as "a license or other document given by an authorized public official or agency (building
inspector, department ofmotor vehicles) to allow a person or business to perform certain acts."205
The evident intention of Section 59, in requiring the CNO prior to the issuance of a license or permit, is to
prevent the implementation of a project that may impair the right of ICCs/IPs to their ancestral domains.
The law seeks to ensure that a project willnot overlap with any ancestral domain prior to its
implementation and thereby pre-empt any potential encroachment of, and/or damage to the ancestral
domains of ICCs/IPs without their prior and informed consent.
With these considerationsin mind, we now look atthe definition, nature and scope of an ECC in order to
determine if it falls within the ambit of a "license" or "permit" to which the CNO requirement, under
Section 59 of the IPRA Law and its implementing rules, finds application. Section 4 of PD 1586 provides,
in part:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. — The President of
the Philippines may, on his own initiative or upon recommendation of the National Environmental
Protection Council, by proclamation declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation shall undertake or operate any
suchdeclared environmentally critical project or area without first securing an Environmental Compliance
Certificate issued by the President orhis duly authorized representative.For the proper management of
said critical project or area, the President may by his proclamation reorganize such government offices,
agencies, institutions, corporations or instrumentalities including the re-alignment of government
personnel, and their specific functionsand responsibilities. (Emphasis supplied)
While the above statutory provision reveals that the ECC is an indispensable requirement before (1) the
conduct of an environmentally critical project or (2) the implementation of a project inan
environmentally critical area, it does not follow that the ECC is the "license" or "permit" contemplated
under Section 59 of the IPRA Law and its implementing rules.
Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise:
SECTION 3. Definition of Terms. —
For the purpose of this Order, the following definitions shall be applied:
xxxx
d. Environmental Compliance Certificate (ECC) — document issued by the DENR/EMB after a positive
review of an ECC application, certifying that based on the representations of the proponent, the
proposed project or undertaking will not cause significant negative environmental impact. The ECC also
certifies that the proponent has complied with all the requirements of the EIS System and has committed
to implement its approved Environmental Management Plan. The ECC contains specific measures and
conditions that the project proponent has to undertake beforeand during the operation of a project, and
in some cases, during the project's abandonment phase to mitigate identified environmental impacts.
In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in part:
3) Purpose of the EIA Process
As a basic principle, EIA is used to enhance planning and guide decisionmaking. In this Manual, EIA is
primarily presented in the context of a requirement to integrate environmental concerns in the planning
process of projects at the feasibility stage. Through the EIA Process, adverse environmental impacts of
proposed actions are considerably reduced through a reiterative review process of project siting, design
and other alternatives, and the subsequent formulation of environmental management and monitoring
plans. A positive determination by the DENR-EMB results to the issuance of an Environmental
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 84
Compliance Commitment (ECC) document, to be conformed to by the Proponent and represents the
project’s Environmental Compliance Certificate. The release of the ECC allows the project to proceed to
the next stage of project planning, which is the acquisition of approvals from other government agencies
and LGUs, after which the project can start implementation.
xxxx
6) The EIA Process inRelation to Other Agencies’ Requirements It is inherent upon the EIA Process to
undertake a comprehensive and integrated approach in the review and evaluation of environment-
related concerns of government agencies (GAs), local government units (LGUs) and the general public.
The subsequent EIA findings shall provide guidance and recommendations to these entities as a basis for
their decision making process.
a) An Inter-agency MOA on EIS Streamlining was entered into in 1992 by 29 government
agencies wherein ECC of covered projects was agreed to be a prerequisite of all other
subsequent government approvals;
b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 reiterates in effect the intent of the
MOA and reinforces the role of the ECC/CNC as a guidance document to other agencies and
LGUs, as follows:
i) "No permits and/or clearances issued by other National Government Agencies and
Local Government Units shall be required in the processing of ECC or CNC applications.
ii) The findings and recommendations ofthe EIA shall be transmitted to relevant
government agencies for them to integrate in their decision making prior to the
issuance of clearances, permits and licenses under their mandates.
iii) The issuance of an ECC or CNC for a project under the EIS System does not exempt
the Proponent from securing other government permits and clearances as required by
other laws. The current practice of requiring various permits, clearancesand licenses
only constrains the EIA evaluation process and negates the purpose and function of the
EIA."
iv) Henceforth, all related previous instructions and other issuances shall be made
consistent with the Circular.
c) "Permits, licenses and clearances" are inclusive of other national and local government
approvals such as endorsements, resolutions, certifications, plans and programs, which have to
be cleared/approved or other government documents required within the respective mandates
and jurisdiction of these agencies/LGUs.
xxxx
f) The final decision whether a project will be implemented or not lies either with the LGUs who have
spatial jurisdiction over the project or with the lead government agency who has sectoral mandate to
promote the government program where the project belongs, e.g. DOE for energy projects; DENR-MGB
for mining projects.(Emphasis supplied)
As can be seen, the issuance of the ECC does not, by and of itself, authorize the implementation of the
project. Although it is indispensable before the covered project can be commenced, asper Section 4 of
PD 1586,the issuanceof the ECC does not, as of yet, result inthe implementation of the project. Rather,
the ECC is intended to, among others, provide guidance or act as a decision-making tool to other
government agencies and LGUs which have the final authority to grant licenses or permits, such as
building permits or licenses to operate, that will ultimately result in, or authorize the implementation of
the project or the conduct of specific activities.
As a consequence, we find that the CNO requirement under Section 59 of the IPRA Law is not required to
be obtained prior to the issuance of an ECC. As previously discussed, Section 59 aims to forestall the
implementation of a project that may impair the right of ICCs/IPs totheir ancestral domains, by ensuring
or verifying that a project will not overlap with any ancestral domain prior to its implementation.
However, because the issuance of an ECC does not result in the implementation of the project, there is
no necessity to secure a CNO prior to an ECC’s issuance as the goal orpurpose, which Section 59 seeks to
achieve, is, at the time of the issuance of an ECC, not yet applicable.
In sum, we find that the ECC is not the license or permit contemplated under Section 59 of the IPRA Law
and its implementing rules. Hence, there is no necessity to secure the CNO under Section 59 before an
ECC may be issued and the issuance of the subject ECC without first securing the aforesaid certification
does not render it invalid.
V.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a precondition to the
consummation of the Lease and Development Agreement (LDA) between SBMA and RP Energy and the
lack of its prior issuance rendered the LDA invalid.
We now turn to the applicability of Section 59 of the IPRA Law to the LDA entered into between the
SBMA and RP Energy on June 8, 2010. Similar to the ECC, the LDA was entered into prior to the issuance
ofthe CNO on October 31, 2012.
Before this Court, SBMA and RP Energy reiterate their arguments on why the CNO is no longer necessary
in the instant case, to wit:
1. Prior to entering into the LDA withRP Energy, SBMA entered into a lease agreement with
HHIC206 -Philippines, Inc. and a CNO was already issued therefor which, for all intents and
purposes, is applicable to the area leased by RP Energy being part of contiguous lots in Redondo
Peninsula.
2. The site of the power plant project is very distant from the boundaries of the lone area at the
Subic Bay Freeport Zone covered by an Aeta Community’s Certificate of Ancestral Domain Title
(CADT).
3. There was no indigenous community within the vicinity of the project area as stated in RP
Energy’s EIS.
4. The land where the project is located was subsequently classified as industrial by the SBMA.
5. The scoping/procedural screening checklist classified as "not relevant" the issue of indigenous
people.
6. Ms. Mercado, who was part of the team which prepared the EIS, testified that she visited the
project site ten or more times and did not see any Aeta communities there.
7. Mr. Evangelista testified that the project site used to be a firing range of the U.S. Armed
Forces which would make it impossible to be a settlement area of indigenous communities.
8. Atty. Rodriguez stated that the project site is not covered by a CADT and that from the start of
negotiations on the LDA, the SBMA Ecology Center verified with the NCIP that there was no
application for said area to be covered by a CADT.
RP Energy further argues that, in any case, as a matter of prudence, it secured a CNO from the NCIP. On
October 31, 2012, the NCIP issued the subject CNO over the project site, which should erase any doubt as
to whether it overlaps with an ancestral domain.
Upholding the arguments of the Casiño Group, the appellate court ruled that SBMA failed to comply with
the CNO requirement and, thus, the LDA entered into between SBMA and RP Energy is invalid. It rejected
the reasons given by SBMA and RP Energy, to wit:
1. RP Energy’s reliance on its own field investigation that no indigenous community was found
within the vicinity is unavailing because it was not the field investigation by the NCIP required by
the IPRA Law.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 85
 2. RP Energy acknowledged that Aetas were among the earliest settlers in the municipality
where the project will be built. Hence, it was not clearly shown that in 2008, at the time the LDA
was entered into, there were no indigenouscommunities in the project site.
3. SBMA’s representation that the project site is industrial relies on a letter dated March 5, 2008
and the scoping checklist, which are hearsay evidence.
4. The statements of Atty. Rodriguez have no probative value because he is not an officer of
SBMA Ecology Center oran officer of NCIP.
5. At the time the CNO was issued on October 31, 2012, and the field investigation relative
thereto was conducted by the NCIP, the project site no longer reflected the actual condition on
December 22, 2008 when the LDA was entered into because the households which occupied the
site had already been relocated by then.
6. SBMA, prior to entering into a lease agreement with HHIC, secured a CNO, but oddly did not
do the same with respect to the lease agreement with RP Energy, considering that both leases
cover lands located within the same peninsula. RP Energy appears to have been accorded a
different treatment.
7. The CNO issued in favor of HHIC cannot justify the lack of a CNO for the power plant project
because the two projects are situated in different locations: the HHIC project is located in Sitio
Agusuhin,while the power plant project is located in Sitio Naglatore.
While we agree with the appellate court that a CNO should have been secured prior to the
consummation of the LDA between SBMAand RP Energy, and not after, as was done here, we find that,
under the particular circumstances of this case, the subsequent and belated compliance withthe CNO
requirement does not invalidate the LDA.
For convenience, and as starting point of ouranalysis, we reproduce Section 59 of the IPRA Law below:
SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be
strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any
productionsharing agreement, without prior certification from the NCIP that the area affected does not
overlap with any ancestral domain.Such certification shall only be issued after a field-based investigation
is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall
be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned:
Provided, further, That no department, government agency or government-owned or -controlled
corporation may issue new concession, license, lease, or production sharing agreement while there is a
pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or
suspend, in accordance with this Act, any project that has not satisfied the requirement of this
consultation process. (Emphasis supplied)
The law is clear but its actual operation or application should not be interpreted beyond the bounds of
reason or practicality.
We explain.
Indeed, a CNO is required prior to the grant of a lease by all government agencies, including the SBMA.
Again, the evident intention is to prevent the impairment of the right of ICCs/IPs to their ancestral
domains. A lease, such as the LDA under consideration, would result in, among others, granting RP
Energy the right to the use and enjoyment of the project site to the exclusion of third parties.207 As such,
the lease could conceivably encroach on an ancestral domain if the CNO is not first obtained.
However, implicit in the operation of Section 59 is the practical reality that the concerned government
agency must make a preliminary determinationon whether or not to obtain the required certification in
the first place. To expound, a government agency, which wishes to lease part of its property located near
Padre Faura Street, Manila City could not, and should not be reasonably expected to obtain the CNO, as
it is obviously inapplicable to its planned lease. In contrast, a government agency, which intends to lease
a property in a valley or mountainous region, where indigenous communities are known to reside,
conduct hunting activities, perform rituals, or carry out some other activities, should be reasonably
expected to secure the CNO prior to consummating the planned lease with third persons.
Even if the indigenous community does not actuallyreside on the proposed lease site, the government
agency would still be required to obtain the CNO preciselyto rule out the possibility that the proposed
lease site encroaches upon an ancestral domain. The reason for this is that an ancestral domain does not
only cover the lands actually occupied by an indigenous community, but all areas where they have a
claim of ownership, through time immemorial use, such as hunting, burial or worship grounds and to
which they have traditional access for their subsistence and other traditional activities.208
The wording of the law itself seems to presuppose that if the concession, lease, license or production-
sharing agreement is over natural resources, then the CNO should be first obtained. This is because the
lastterm, "production-sharing agreement," normally refers to natural resources. But the problem arises
as to what should be considered "natural resources"; for a vacant lot, nearPadre Faura Street, or a forest
land, in Mt. Banahaw, could both beconsidered as "natural resources," depending on the restrictive or
expansive understanding of that term.
After due consideration, we find that the proper rule of action, for purposes of application of Section 59,
is that all government offices should undertake proper and reasonable diligence in making a preliminary
determination on whether to secure the CNO, bearing in mind the primordial State interest in protecting
the rights of ICCs/IPs to their ancestral domains. They should consider the nature and location of the
areas involved; the historical background of the aforesaid areas relative to the occupation, use or claim
of ownership by ICCs/IPs; the present and actual condition of the aforesaid areas likethe existence of
ICCs/IPs within the area itself or within nearby territories; and such other considerations that would help
determine whether a CNO should be first obtained prior to granting a concession, lease, license or
permit, or entering into a production-sharing agreement.
If there are circumstances that indicate that a claim of ownership by ICCs/IPs may be present or a claim
of ownership may be asserted in the future, no matter how remote, the proper and prudent course
ofaction is to obtain the CNO. In case of doubt, the doubt should be resolved in favor of securing the CNO
and, thus, the government agency is under obligation tosecure the aforesaid certification in order to
protect the interests and rights of ICCs/IPs to their ancestral domains. This must be so if we are to accord
the proper respect due to, and adequately safeguard the interests and rights of, our brothers and sisters
belonging to ICCs/IPs in consonance with the constitutional policy209 to promote and protect the rights of
ICCS/IPs as fleshed out in the IPRA Law and its implementing rules.
In the case at bar, we find, applying this rule of action, that the SBMA should have first secured a CNO
before entering into the LDA with RP Energy for the following reasons.
First, the Subic area is historicallyknown to be the home of our brothers and sisters belonging to the Aeta
communities. In particular, the EIS210 itself of RP Energy noted that Aeta communities originally
occupiedthe proposed project site of the power plant. Thus, even if we assume that, at the time of the
ocular inspection of the proposed project site in 2008, there were no Aeta communities seen thereat, as
claimed by RP Energy, the exercise of reasonable prudence should have moved SBMA and RP Energy to
secure a CNO in order to rule out the possibility that the project site may overlap with an ancestral
domain. This is especially so, in view of the observation previously made, that lack of actual occupation
by an indigenous community ofthe area does not necessarily mean that it is not a part of anancestral
domain because the latter encompasses areas that are not actually occupied by indigenouscommunities
but are used for other purposes like hunting, worship or burial grounds.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 86
Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with the NCIP that the project
site does not overlap with an ancestral domain. However, the person, who allegedly did the verification,
and the officer from the NCIP, who was contacted in this alleged verification, were not presented in
court. Assuming that this verification did take place and that the SBMA Ecology Center determined that
there is no pendingapplication for a CADT covering the project site and that the presently recognized
CADT of Aeta communities is too far away from the project site, it still does not follow that the CNO
under Section 59 should have been dispensed with. The acts of individual members ofa government
agency, who allegedly checked with the NCIP that the project site does not overlap with an ancestral
domain, cannot substitute for the CNO required by law. The reason is obvious. Such posture would
circumvent the noble and laudable purposes of the law in providing the CNO as the appropriate
mechanism in order to validly and officially determine whether a particular project site does not overlap
with an ancestral domain. It would open the doors to abuse because a government agency can easily
claim that it checked with the NCIP regarding any application for an ancestral domain over a proposed
project site while stopping short of securing a CNO. To reiterate, the legally mandated manner to verify if
a project site overlaps with an ancestral domain is the CNO,and not through personal verification by
members of a government agency with the NCIP.
Third, that the project site was formerlyused as the firing range of the U.S. Armed Forces does not
preclude the possibility that a present orfuture claim of ancestral domain may be made over the
aforesaid site. The concept of an ancestral domain indicates that, even if the use ofan area was
interrupted by the occupation of foreign forces, it may still be validly claimed to be an ancestral
domain.211
Fourth, that the project site was subsequently classified by the SBMA as forming part of an industrial
zone does not exempt it from the CNO requirement. The change in the classification of the land is not an
exception to the CNO requirement under the IPRA Law. Otherwise, government agencies can easily
defeat the rights of ICCs/IPs through the conversion of land use.
Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and purposes, be applicable to RP
Energy. However, ascorrectly ruled by the appellate court, the CNO issued to HHIC’s shipyard cannot be
extended to RP Energy’s project site because they involve two different locations although found within
the same land mass. The CNO issued in favor of HHIC clearly states that the findings in the CNO are
applicable only to the shipyard location of HHIC. Last, the steps taken by SBMA, in securing a CNO prior
to its lease agreement with HHIC, was the proper and prudent course of action that should have been
applied to the LDA with RP Energy. It does notmatter that HHIC itself asked for the CNO prior to entering
into a lease agreement with SBMA, as claimed by SBMA, while RP Energy did not make such a request
because, as we have discussed, SBMA had the obligation, given the surrounding circumstances, to secure
a CNO in order to rule out the possibility that the project site overlapped with an ancestral domain.
All in all, we find, applying the foregoing rule of action,that SBMA should have secured a CNO before
entering into the LDA with RP Energy. Considering that Section 59 is a prohibitory statutory provision, a
violation thereof would ordinarily result in the nullification of the contract.212 However, we rule that the
harsh consequences of such a ruling should not be applied to the case at bar.
The reason is that this is the first time that we lay down the foregoing rule of action so much so that it
would be inequitable to retroactively apply its effects with respect to the LDA entered into between
SBMA and RPEnergy. We also note that, under the particular circumstances of this case, there is no
showing that SBMA and RP Energy had a deliberate or ill intent to escape, defeat or circumvent the
mandate of Section 59 of the IPRA Law. On the contrary, they appear to have believed in good faith,
albeiterroneously, that a CNO was no longer needed because of the afore-discussed defenses they raised
herein. When the matter of lack of a CNO relative to the LDA was brought to their attention, through the
subject Petition for Writ ofKalikasan filed by the Casiño Group, RP Energy, with the endorsement of
SBMA, promptly undertook to secure the CNO, which was issued on October 31, 2012 and stated that
the project site does not overlap with any ancestral domain.213
Thus, absent proof to the contrary, weare not prepared to rule that SBMA and RP Energy acted inbad
faith or with inexcusable negligence, considering that the foregoing rule of action has not heretofore
been laiddown by this Court. As a result, we hold that the LDA should notbe invalidated due to equitable
considerations present here.
By so ruling, we clarify that we reject RP Energy’s claim that the belated submission of the CNO is an
"over compliance" on its part. Quite the contrary, as we have discussed, the CNO should have been first
secured given the surrounding circumstances of this case.
In the same vein, we reject SBMA’s argument thatthe belated application for, and submission of the CNO
cured whatever defect the LDA had. We have purposely avoided a ruling to the effect that a CNO secured
subsequent to the concession, lease, license, permit or production-sharing agreement will cure the
defect. Such a ruling would lead to abuse of the CNO requirement since the defect can be cured anyway
by a subsequent and belated application for a CNO. Government agencies and third parties, either
through deliberate intent or negligence, may view it as an excuse not to timely and promptly secure the
CNO, even when the circumstances warrant the application for a CNO under the aforediscussed rule of
action, tothe damage and prejudice of ICCs/IPs. Verily, once the concession, lease, license or permit is
issued, or the agreement is entered into without the requisite CNO, consequent damages will have
already occurred if it later turns out that the site overlaps with anancestral domain. This is so even if the
ICCs/IPs can have the project stopped upon discovery thatit overlapped with their ancestral domain
under the last proviso214 of Section 59. To prevent this evil, compliance with the CNO requirement should
be followed through the aforediscussed rule of action.
In sum, we rule that a CNO should have been secured prior to the consummation of the LDA between
SBMA and RP Energy. However, considering that this is the first time we lay down the rule of action
appropriate to the application of Section 59, we refrain from invalidating the LDA due to equitable
considerations.
VI.
Whether compliance with Section 27, inrelation to Section 26, of the LGC (i.e., approval of the concerned
sanggunianrequirement) is necessary prior to the implementation of the power plant project.
Sustaining the arguments ofthe Casiño Group, the appellate court ruled that the subject project cannot
beconstructed and operated until after the prior approval of the concerned sanggunianrequirement,
under Section 27 of the LGC, is complied with. Hence, the ECC and LDA could not be validly granted and
entered into without first complying with the aforesaid provision. It held that all the requisites for the
application of the aforesaid provision are present. As to the pertinent provisions of RA 7227 or "TheBases
Conversion and Development Act of 1992," which grants broad powers of administration to the SBMA
over the Subic Special Economic Zone(SSEZ), the appellate court ruled that RA 7227 contains a provision
recognizing the basic autonomy ofthe LGUs which joined the SSEZ. Thus, the LGC and RA 7227should be
harmonized whereby the concerned sanggunian’spower to approve under Section 27 must be respected.
The DENR impliedly agrees with the Casiño Group that compliance with Section 27 is still required but
without clearly elaborating its reasons therefor.
The SBMA and RP Energy, however, argue that the prior approval of the concerned
sanggunianrequirement, under Section 27, is inapplicable to the subject project because it is located
within the SSEZ. The LGC and RA 7227 cannot be harmonized because of the clear mandate of the SBMA
to govern and administer all investments and businesses within the SSEZ. Hence, RA 7227 should be
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 87
deemed as carving out an exception to the prior approval of the concerned sanggunianrequirement
insofar as the SSEZ is concerned.
We agree with the SBMA and RP Energy.
Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two requirements: (1) prior
consultations and (2) prior approval of the concerned sanggunian,viz:
SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. — It shall
be the duty of every national agency or government-owned or -controlled corporation authorizing or
involved in the planning and implementation of any project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local government units, non governmental
organizations, and other sectors concerned and explain the goals and objectives of the project or
program, its impact upon the peopleand the community in terms of environmental or ecological balance,
and the measures that will be undertaken to prevent or minimize the adverse effects thereof. (Emphasis
supplied)
SECTION 27. Prior Consultations Required. — No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas
where such projects are to be implemented shall not be evicted unless appropriate relocation sites have
been provided, in accordance with the provisions of the Constitution. (Emphasis supplied)
In the case at bar, the Casiño Group only questions the alleged lack of the prior approval of the
concerned sanggunians under Section 27 of the LGC. Thus, we shall limit our discussion to the resolution
of this issue. (Parenthetically, we note that prior consultations, as required by Section 26 of the LGC,
appear to have been complied with. This may begleaned from the EIS of RPEnergy which contains the
documentation of the extensive public consultations held, under the supervision of the DENR-EMB,
relative to the subject project, as required by the EIA process,215 as well as the socialacceptability policy
consultations conducted by the SBMA, which generated the document entitled "Final Report: Social
Acceptability Process for RP Energy, Inc.’s 600-MW Coal Plant Project," as noted and discussed in an
earlier subsection.216)
We also note that the Casiño Group argues that the approval of the concerned sanggunian requirement
was necessary prior to the issuance of the ECC and the consummation of the LDA; the absence of which
invalidated the ECC and LDA.
We shall no longer discuss at length whether the approval of the concerned sanggunian requirement
must be complied with prior to the issuance of an ECC. As discussed in an earlier subsection, the issuance
of an ECC does not, by itself, result in the implementation of the project. Hence, the purpose or goal of
Sections 26 and 27 of the LGC,like Section 59 of the IPRA Law, does not yet obtain and, thus, the ECC may
be issued evenwithout prior compliance with Sections 26 and 27 of the LGC.
We, thus, limit the discussion as to whether the approval of the concerned sanggunian requirement
should have been complied with prior to the consummation of the LDA, considering that the LDA is part
of the implementation of the subject project and already vests in RP Energy the right to the use and
enjoyment of the project site, asin fact horizontal clearing activities were already undertaken by RP
Energy at the project site by virtue of the LDA.
The prior approval of the concerned sanggunian requirement is an attribute and implementation of the
local autonomy granted to, and enjoyed by LGUs under the Constitution.217 The LGU has the duty to
protect its constituents and interests in the implementation of the project. Hence, the approval of the
concerned sanggunian is required by law to ensure thatlocal communities partake in the fruits of their
own backyard.218
For Section 27, in relation to Section 26, to apply, the following requisites must concur: (1) the planning
and implementation of the project or program is vested in a national agency or government-owned and-
controlled corporation, i.e., national programs and/or projects which are to be implemented in a
particular local community; and (2) the project or program may cause pollution, climatic change,
depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, extinction of animal
or plant species, or call for the eviction of a particular group of people residing in the locality where the
project will be implemented.219
In the case at bar, the two requisites are evidently present: (1) the planning and implementation of the
subject project involves the Department of Energy, DENR, and SBMA; and (2) the subject project may
cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or
forest cover, and extinction of animal or plant species,or call for the eviction of a particular group of
people residing in the locality where the project will be implemented. Hence, Section 27 of the LGC
should ordinarily apply.
It is not disputed that no approval was sought from the concerned sangguniansrelative to the subject
project.1a\^/phi1 Whatis more, the affected LGUs have expressed their strong oppositions to the project
through various sanggunian resolutions.220 However, it is also undisputed that the subject project is
located within the SSEZ and, thus, under the territorial jurisdiction of the SBMA pursuant to RA 7227.
Thus, we are tasked to determine the applicability of the prior approval of the concerned sanggunian
requirement, under Section 27 of the LGC, relative to a project within the territorial jurisdiction of the
SBMA under RA 7227.
RA 7227 was passed on March 13, 1992 in the aftermath of the Mount Pinatubo eruption and the closure
of the Subic Naval Base ofthe U.S. Armed Forces. It sought to revivethe affected areas by creating and
developing the SSEZ into a "self-sustaining industrial, commercial, financial and investment center to
generate employment opportunities in and around the zone and to attract and promote productive
foreign investments."221 The SSEZ covered the City of Olangapo and Municipality of Subic in the Province
ofZambales and the lands and its contiguous extensions occupied by the former U.S. Naval Base, which
traversed the territories of the Municipalities of Hermosa and Morong in the Province of Bataan. Under
Section 12 of RA 7227, the creation of the SSEZ was made subject to the concurrence by resolution of the
respective sanggunians of the City of Olongapo and the Municipalities of Subic, Morong and Hermosa,
viz:
SECTION 12. Subic Special Economic Zone. — Subject to the concurrence by resolution of the
sangguniang panlungsod of the City of Olongapo and the sangguniang bayanof the Municipalities of
Subic, Morong and Hermosa, there is hereby created a Special Economic and Free-port Zone consisting of
the City of Olongapo and the Municipality of Subic, Province of Zambales, the lands occupied by the Subic
Naval Base and its contiguous extensions as embraced, covered, and defined by the 1947 Military Bases
Agreement between the Philippines and the United States of America as amended, and within the
territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter
referred to as the Subic Special Economic Zone whose metes and bounds shall be delineated in a
proclamation to be issued by the President of the Philippines. Within thirty (30) days after the approval
of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special
Economic Zone to the office of the President. Thereafter, the President of the Philippines shall issue a
proclamation defining the metes and bounds of the Zone as provided herein.
Subsequently, the aforesaid sanggunians submitted their respective resolutions of concurrence and the
President issued Presidential Proclamation No. 532, Series of 1995, defining the metes and bounds of the
SSEZ.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 88
In Executive Secretary v. Southwing Heavy Industries, Inc.,222 we described the concept of SSEZ as a
Freeport:
The Freeport was designed to ensurefree flow or movement of goods and capital within a portion of the
Philippine territory in order to attract investors to invest their capital in a business climate with the least
governmental intervention. The concept ofthis zone was explained by Senator Guingona in this wise:
Senator Guingona. Mr. President, the special economic zone is successful in many places, particularly
Hong Kong, which is a free port. The difference between a special economic zone and an industrial estate
is simply expansive in the sense that the commercial activities, including the establishment of banks,
services, financial institutions, agro-industrial activities, maybe agriculture to a certain extent.
This delineates the activities that would have the least of government intervention, and the running of
the affairs of the special economic zone would be run principally by the investors themselves, similar toa
housing subdivision, where the subdivision owners elect their representatives to run the affairs of the
subdivision, toset the policies, to set the guidelines.
We would like to see Subic area converted into a little Hong Kong, Mr. President, where there is a hub of
free port and free entry, free duties and activities to a maximum spur generation of investment and jobs.
While the investor is reluctant to come in the Philippines, as a rule, because of red tape and perceived
delays, we envision this special economic zone to be an area where there will be minimum government
interference.
The initial outlay may not only come from the Government or the Authority as envisioned here, but from
them themselves, because they would be encouraged to invest not only for the land but also for the
buildings and factories. As long as they are convinced that in such an area they can do business and reap
reasonable profits, thenmany from other parts, both local and foreign, would invest, Mr.
President.223 (Emphasis in the original)
To achieve the above-mentioned purposes, the law created SBMA to administer the SSEZ. In the process,
SBMA was granted broad and enormous powers as provided for under Section 13(b) of RA 7227:
Sec. 13. The Subic Bay Metropolitan Authority. –
xxxx
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan
Authority, otherwise knownas the Subic Authority, shall have the following powers and function:
(1) To operate, administer, manage and develop the ship repair and ship building facility,
container port, oil storage and refueling facility and Cubi Air Base within the Subic Special
Economic and Free-port Zone as a free market in accordance with the policies set forth in
Section 12 of this Act;
(2) To accept any local or foreign investment, business or enterprise, subject only to
such rules and regulations to be promulgated by the Subic Authority in conformity with
the policies of the Conversion Authority without prejudice to the nationalization
requirements provided for in the Constitution;
(3) To undertake and regulate the establishment, operation and maintenance of
utilities, other services and infrastructure in the Subic Special Economic Zone including
shipping and related business, stevedoring and port terminal services or concessions,
incidental thereto and airport operations in coordination with the Civil Aeronautics
Board, and to fix just and reasonable rates, fares charges and other prices therefor;
(4) To construct, acquire, own, lease, operate and maintain on its own or through
contract, franchise, license permits bulk purchase from the private sector and build-
operate transfer scheme or joint-venture the required utilities and infrastructurein
coordination with local government units and appropriate government agencies
concerned and inconformity with existing applicable laws therefor;
(5) To adopt, alter and use a corporate seal; to contract, lease, sell, dispose, acquire
and own properties; to sue and be sued in order to carry out its duties and functions as
provided for in this Act and to exercise the power of eminent domain for public use and
public purpose;
(6) Within the limitation provided by law, to raise and/or borrow the necessary funds
from local and international financial institutions and to issue bonds, promissory notes
and other securities for that purpose and to secure the same by guarantee, pledge,
mortgage deed of trust, or assignment of its properties held by the Subic Authority for
the purpose of financing its projects and programs within the framework and limitation
of this Act;
(7) To operate directly or indirectly or license tourism related activities subject to
priorities and standards set by the Subic Authority including games and amusements,
except horse racing, dog racing and casino gambling which shall continue to be licensed
by the Philippine Amusement and Gaming Corporation (PAGCOR) upon
recommendation of the Conversion Authority; to maintain and preserve the forested
areas as a national park;
(8) To authorize the establishment ofappropriate educational and medical institutions;
(9) To protect, maintain and develop the virgin forests within the baselands, which will
be proclaimed as a national park and subject to a permanent total log ban, and for this
purpose, the rules and regulations of the Department of Environment and Natural
Resources and other government agencies directly involved in the above functions shall
be implemented by the Subic Authority;
(10) To adopt and implement measures and standards for environmental pollution
control of all areas within its territory, including but not limited to all bodies of water
and to enforce the same. For which purpose the Subic Authority shall create an Ecology
Center; and
(11) To exercise such powers as may be essential, necessary or incidental to the powers
granted to it hereunder as well as to carry out the policies and objectives of this Act.
(Emphasis supplied) The Implementing Rules of RA 7227 further provide:
Sec. 11. Responsibilities of the SBMA. Other than the powers and functions prescribed in Section 10 of
these Rules, the SBMA shall have the following responsibilities:
(a) The SBMA shall exercise authority and jurisdiction over all economic activity within the SBF224
xxxx
(f) Consistent with the Constitution, the SBMA shall have the following powers to enforce the law and
these Rules in the SBF:
xxxx
(8) to issue, alter, modify, suspend or revoke for cause, any permit, certificate, license, visa or privilege
allowed under the Act or these Rules;
xxxx
(11) to promulgate such other rules, regulations and circulars as may be necessary, proper or incidental
to carry out the policies and objectives of the Act, these Rules, as well as the powers and duties of the
SBMA thereunder.225
As can be seen, the SBMA was given broad administrative powers over the SSEZ and these necessarily
include the power to approve or disapprove the subject project, which is within its territorial jurisdiction.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 89
But, as previously discussed, the LGC grants the concerned sangguniansthe power to approve and
disapprove this same project. The SBMA asserts that its approval of the project prevails over the
apparent disapproval of the concerned sanggunians. There is, therefore, a real clash between the powers
granted under these two laws.
Which shall prevail?
Section 12 of RA 7227 provides:
Sec. 12. Subic Special Economic Zone. x x x
The abovementioned zone shall be subjected to the following policies:
(a) Within the framework and subject to the mandate and limitations of the Constitution and the
pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall bedeveloped
into a self-sustaining, industrial, commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive foreign investments;
xxxx
(i) Except as herein provided, the local government units comprising the Subic Special Economic Zone
shall retain their basic autonomy and identity. The cities shall be governed by their respective charters
and the municipalities shall operate and function in accordance with Republic Act No. 7160, otherwise
known as the Local Government Code of 1991. (Emphasis supplied)
This section sets out the basic policies underlying the creation of the SSEZ. Indeed, as noted by the
appellate court, Section 12(i) expressly recognizes the basic autonomy and identity of the
LGUscomprising the SSEZ. However, the clause "[e]xcept as herein provided" unambiguously provides
that the LGUs do not retain their basic autonomy and identitywhen it comes to matters specified by the
law as falling under the powers, functions and prerogatives of the SBMA.
In the case at bar, we find that the power to approve or disapprove projects within the SSEZ is one such
power over which the SBMA’s authority prevails over the LGU’s autonomy. Hence, there isno need for
the SBMA to secure the approval of the concerned sangguniansprior to the implementation of the
subject project.
This interpretation is based on the broad grant of powers to the SBMA over all administrative matters
relating to the SSEZ under Section 13 of RA 7227, as afore-discussed. Equally important, under Section
14, other than those involving defense and security, the SBMA’s decision prevails in case of conflict
between the SBMA and the LGUs in all matters concerning the SSEZ, viz.:
Sec. 14. Relationship with the Conversion Authority and the Local Government Units.
(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the
Subic Authority shall exercise administrative powers, rule-making and disbursement of funds
over the Subic Special Economic Zonein conformity with the oversight function of the
Conversion Authority.
(b) In case of conflict between the Subic Authority and the local government units concerned on
matters affecting the Subic Special Economic Zone other than defense and security, the decision
of the SubicAuthority shall prevail. (Emphasis supplied)
Clearly, the subject project does not involve defense or security, but rather business and investment to
further the development of the SSEZ. Such is in line with the objective of RA 7227 to develop the SSEZ
into a self-sustaining industrial, commercial, financial and investment center. Hence, the decision of the
SBMA would prevail over the apparent objections of the concerned sanggunians of the LGUs.
Significantly, the legislative deliberations on RA 7227, likewise, support and confirm the foregoing
interpretation. As earlier noted, Section 13 b(4) of RA 7227 provides:
Sec. 13. The Subic Bay Metropolitan Authority. –
xxxx
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan
Authority, otherwise knownas the Subic Authority, shall have the following powers and function: x x x x
(4) To construct, acquire, own, lease, operate and maintain on its own or through contract, franchise,
license permits bulk purchase from the private sector and build-operate transfer scheme or joint-venture
the required utilities and infrastructure in coordination with local government units and appropriate
government agencies concerned and in conformity with existing applicable laws therefor;
In the Senate, during the period of amendments, when the provision which would eventually become the
afore-quoted Section 13 b(4) of RA 7227 was under consideration, the following exchanges took place:
Senator Laurel. Mr. President.
The President. Senator Laurel is recognized.
Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the provision to the effect that the
Authoritywill have the following functions: "to construct, acquire, own, etcetera," that is all right.
My motion is that we amend this particular line, starting from the word "structures", by deleting the
words that follow on line 31, which states: "in coordination with local government unitsand", and
substitute the following in place of those words: "SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF
THE AFFECTED LOCAL GOVERNMENT UNITS AND IN COORDINATION WITH."
So, this paragraph will read, as follows: "to construct, own, lease, operate, and maintain on its own or
through contract, franchise, license permits, bulk purchase from the private sector and build-operate-
transfer scheme or joint venture the required utilities and infrastructure SUBJECT TO THE APPROVAL OF
THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND IN coordination with appropriate
government agencies concerned and in conformity with existing applicable laws therefor."
The President. What does the Sponsor say?
Senator Shahani. I believe this would cripple the Authority. I would like to remind our Colleagues that in
the Board of Directors, the representatives of the local government units that agree to join with the
Subic Special Economic Zone will be members of the Board so that they will have a say, Mr. President.
But if we say "subject," that is a very strong word. It really means that they will be the ones to determine
the policy.
So, I am afraid that I cannot accept this amendment, Mr. President.
Senator Laurel. May I respond or react, Mr. President.
The President. Yes.
Senator Laurel. The Constitution is there,very categorical inthe promotion and encouragement of local
autonomy, and mandating Congress to enact the necessary Local Government Code with emphasis on
local autonomy.
We have now Section 27 of the new Local Government Code which actually provides that for every
projectin any local government territory, the conformity or concurrence of the Sanggunian of every such
local government unit shall be secured in the form of resolution—the consent of the Sanggunian.
The President. Well, both sides have already been heard. There is the Laurel amendment that would
make the power of the Subic Bay Metropolitan Authority to construct, acquire, own, lease, operate and
maintain on its own or through contract, franchise, license, permits, bulk purchases from private sector,
buildoperate-and-transfer scheme, or joint venture, the required utilities and infrastructure, subject to
approval by the appropriate Sanggunian of the local government concerned.
This amendment to the amendment has been rejected by the Sponsor. So, we are voting now on this
amendment.
As many as are in favor of the Laurel amendment, say Aye. (Few Senators: Aye.)
Those who are against the said amendment, say Nay. (Several Senators: Nay.)
Senator Laurel. Mr. President, may I ask for a nominal voting.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 90
The President. A nominal voting should beupon the request of one-fifth of the Members of the House, LGUs in the decision-making process of the SBMA are matters outside the scope of the power of judicial
but we can accommodate the Gentleman by asking for a division of the House. Therefore, those in favor review. We can only interpret and apply the law as we find it.
of the Laurel amendment, please raise their right hands. (Few Senators raised their right hands.) In sum, we find that the implementation of the project is not subject to the prior approval of the
Senator Laurel. I was asking, Mr. President, for a nominal voting. The President. A nominal voting can be concerned sanggunians, under Section 27 of the LGC, and the SBMA’s decision to approve the project
had only upon motion ofone-fifth of the Members of the Body. Senator Laurel. That is correct, Mr. prevails over the apparent objections of the concerned sangguniansof the LGUs, by virtue ofthe clear
President. But this issuch an important issue being presented to us, because this question is related to provisions of RA 7227. Thus, there was no infirmity when the LDA was entered into between SBMA and
the other important issue, which is: May an elected public official of a particular government unit, such RP Energy despite the lack of approval of the concerned sanggunians. VII.
as a town or municipality, participate as a member of the Board of Directors of this particular zone. Whether the validity of the third amendment to the ECC can be resolved by the Court.
The President. The ruling of the Chair stands. The division of the House is hereby directed. The Casiño Group argues that the validity of the third amendment should have been resolved by the
As many as are infavor of the Laurel amendment, please raised (sic) their right hands. (Few Senators appellate court because it is covered by the broad issues set during the preliminary conference.
raised their right hands.) RP Energy counters that this issue cannot be resolved because it was expressly excluded during the
As many as are against the said amendment, please do likewise. (Several Senators raised their right preliminary conference.
hands.) The appellate court sustained the position of RP Energy and ruled that this issue was not included in the
The amendment is lost.226 (Emphasis supplied) preliminary conference so that it cannot be resolved without violating the right todue process of RP
Indubitably, the legislature rejected the attempts to engraft Section 27’s prior approval of the concerned Energy.
sanggunian requirement under the LGC into RA 7227. Hence, the clear intent was to do awaywith the We agree with the appellate court.
approval requirement of the concerned sangguniansrelative to the power ofthe SBMA to approve or Indeed, the issue of the validity of the third amendment to the ECC was not part of the issues set during
disapprove a project within the SSEZ. the preliminary conference, as it appears at that time that the application for the third amendment was
The power to create the SSEZ is expressly recognized in Section 117 of the LGC, viz.: still ongoing. The following clarificatory questions during the aforesaid conference confirm this, viz.:
TITLE VIII. J. LEAGOGO:
Autonomous Special Economic Zones So what are you questioning in your Petition?
SECTION 117. Establishment of Autonomous Special Economic Zones. — The establishment by law of ATTY. RIDON:
autonomous special economic zones in selected areas of the country shall be subject to concurrence by We are questioning the validity of the amendment, Your Honor.
the local government units included therein. J. LEAGOGO:
When the concerned sanggunians opted to join the SSEZ, they were, thus, fully aware that this would Which amendment?
lead to some diminution of their local autonomy in order to gain the benefits and privileges of being a ATTY. RIDON:
part of the SSEZ. From 2 x 150 to 1 x 300, Your Honor.
Further, the point of Senator Shahani that the representation of the concerned LGUs in the Board of J. LEAGOGO:
Directors will compensate for the diminution of their local autonomy and allow them to be represented Your Petition does not involve the 2 x 300 which is still pending with the DENR. Because you still have
in the decision-making of the SBMA is not lost on us. This is expressly provided for in Section 13(c) of RA remedies there, you can make your noise there, you can question it to your heart[’]s content because it is
7227, viz: still pending
SECTION 13. The Subic Bay Metropolitan Authority. — xxxx
xxxx J. LEAGOGO:
(c) Board of Directors. — The powers of the Subic Authority shall be vested in and exercised by a Board of Atty. Ridon, I go back to my question. We’re not yet talking of the legal points here. I’m just talking of
Directors, hereinafter referred to as the Board, which shall be composed of fifteen (15) members, to wit: what are you questioning. You are questioning the 1 x 300?
(1) Representatives of the local government units that concur to join the Subic Special Economic ATTY. RIDON:
Zone; Yes, Your Honor.
(2) Two (2) representatives from the National Government; J. LEAGOGO:
(3) Five (5) representatives from the private sector coming from the present naval stations, Because it was 2 x 150 and then 1 x 300?
public works center, ship repair facility, naval supply depot and naval air station; and ATTY. RIDON:
(4) The remaining balance to complete the Board shall be composed of representatives from the Yes, Your Honor.
business and investment sectors. (Emphasis supplied) J. LEAGOGO:
SBMA’s undisputed claim is that, during the board meeting when the subject project was approved, Up to that point?
exceptfor one, all the representatives of the concerned LGUs were present and voted to approve the ATTY. RIDON:
subject project.227 Verily, the wisdom of the law creating the SSEZ; the wisdom of the choice of the Yes, Your Honor.
concerned LGUs to join the SSEZ; and the wisdom ofthe mechanism of representation of the concerned J. LEAGOGO:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 91
Because there is no amended ECC yet for the 2 x 300 or 600. That’s clear enough for all of us.
ATTY. RIDON:
Yes, Your Honor.228
Given the invocation of the right to due process by RP Energy, we must sustain the appellate court’s
finding that the issue as to the validity of the third amendment cannot be adjudicated in this case.
Refutation of the Partial Dissent.
Justice Leonen partially dissents from the foregoing disposition on the following grounds:
(a) Environmental cases, such asa petition for a writ of kalikasan, should not, in general,be
litigated viaa representative, citizen or class suit because of the danger of misrepresenting the
interests— and thus, barring future action due to res judicata— of those not actually present in
the prosecution of the case, either because they do not yet exist, like the unborn generations, or
because the parties bringing suit do not accurately represent the interests ofthe group they
represent or the class to which they belong. As an exception, such representative, citizen or
class suit may be allowed subject to certain conditions; and
(b) The amendments to the ECC, granted by the DENR in favor of RP Energy, are void for failure
to submit a new EIS in support of the applications for these amendments to the subject ECC, and
a petition for writ of kalikasanis not the proper remedy to raise a defect inthe ECC.
We disagree.
A.
Justice Leonen’s proposition that environmental cases should not, in general, be litigated via a
representative, citizen or class suit is both novel and ground-breaking. However, it isinappropriate to
resolve such an important issue in this case, in view of the requisites for the exercise of our power of
judicial review, because the matter was not raised by the parties so that the issue was not squarely
tackled and fully ventilated. The proposition will entail, as Justice Leonen explains, an abandonment or,
at least, a modification of our ruling in the landmark case of Oposa v. Factoran.229 It will also require an
amendment or a modification of Section 5 (on citizen suits), Rule 2 ofthe Rules of Procedure for
Environmental Cases. Hence, it is more appropriate to await a case where such issues and arguments are
properly raisedby the parties for the consideration of the Court.
B.
Justice Leonen reasons that the amendments to the subject ECC are void because the applications
therefor were unsupported by anEIS, as required by PD 1151 and PD 1586. The claim is made that an EIS
is required by law, even if the amendment to the ECC is minor, because an EIS is necessary to determine
the environmental impact of the proposed modifications to the original project design. The DENR rules,
therefore, which permit the modification of the original project design without the requisite EIS, are void
for violating PD 1151 and PD 1586.
We disagree.
Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in every action, project or
undertaking that significantly affects the quality of the environment, viz:
SECTION 4. Environmental Impact Statements. — Pursuant to the above enunciated policies and goals, all
agencies and instrumentalities of the national government, including government-owned or -controlled
corporations, as well as private corporations, firms and entities shall prepare, file and include in every
action, projector undertaking which significantly affects the quality of the environmenta detailed
statement on —
(a) the environmental impact of the proposed action, project or undertaking;
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are consistent
with the maintenance and enhancement of the long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding
must be made that such use and commitment are warranted.
Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction
over, or special expertise on, the subject matter involved shall comment on the draft environmental
impact statement made by the lead agency within thirty (30) days from receipt of the same. (Emphasis
supplied)
As earlier stated, the EIS was subsequently developed and strengthened through PD 1586 which
established the Philippine Environmental Impact Statement System. Sections 4 and 5 of PD 1586 provide:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects.1avvphi1 The
President of the Philippines may, on his own initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the
country as environmentally critical. No person, partnership or corporation shall undertake or operate any
such declared environmentally critical project or area without first securing an Environmental
Compliance Certificate issued by the President or his duly authorized representative. For the proper
management of said critical project or area, the President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of
government personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or
water use pattern for said critical project(s) or area(s); (b) establish ambient environmental quality
standards; (c) develop a program of environmental enhancement or protective measures against
calamituous factors such as earthquake, floods, water erosion and others, and (d) perform such other
functions as may be directed by the President from time to time.
SECTION 5. Environmentally Non-Critical Projects. — All other projects, undertakings and areas not
declared by the President as environmentally critical shall be considered as non-critical and shall not be
required to submit an environmental impact statement. The National Environmental Protection Council,
thru the Ministry of Human Settlements may however require non-critical projects and undertakings to
provide additional environmental safeguards as it may deem necessary. (Emphasis supplied)
These laws were, in turn, implemented by DAO 2003-30 and the Revised Manual.
As correctly noted by Justice Leonen,Presidential Proclamation No. 2146 was subsequently issued which,
among others, classified fossil-fueled power plants as environmentally critical projects.
In conformity with the above-quoted laws and their implementing issuances, the subject project, a coal
power plant, was classified by the DENR as an environmentally critical project, new and single. Hence, RP
Energy was required to submit an EIS in support of its application for an ECC. RP Energy thereafter
complied with the EIS requirement and the DENR, after review, evaluation and compliance with the
other steps provided in its rules, issued an ECC in favor of RP Energy. As can be seen, the EIS requirement
was duly complied with.
Anent Justice Leonen’s argument thatthe subsequent amendments to the ECC were void for failure to
prepare and submit a new EIS relative to these amendments, it is important to note thatPD 1586 does
not state the procedure to be followed when there is an application for an amendment to a previously
issued ECC. There is nothing in PD 1586 which expressly requires an EIS for an amendment to an ECC.
In footnote 174 of the ponencia, it is stated:
Parenthetically, we must mention that the validity of the rules providing for amendments to the ECC was
challenged by the Casiño Group on the ground that it is ultra vires before the appellate court. It argued
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 92
that the laws governing the ECC do not expressly permit the amendment of an ECC. However, the
appellate court correctly ruled that the validity of the rules cannot be collaterally attacked. Besides,the
power of the DENR to issue rules on amendments of an ECC is sanctioned under the doctrine of
necessary implication. Considering that the greater power todeny or grant an ECC is vested by law in the
President or his authorized representative, the DENR, there is no obstacle to the exercise of the lesser or
implied power to amend the ECC for justifiable reasons. This issue was no longer raised before this Court
and, thus, we no longertackle the same here.
Because PD 1586 did not expressly provide the procedure to be followed in case of an application for an
amendment toa previously issued ECC, the DENR exercised its discretion, pursuant to its delegated
authority to implement this law, in issuing DAO 2003-30 and the Revised Manual.
Justice Leonen’s argument effectively challenges the validity of the provisions in DAO 2003-30 and the
Revised Manual relative to amendments to an ECC for being contrary to PD 1151 and 1586.
We disagree.
First, to repeat, there is nothing in PD 1586 which expressly requires an EIS for an amendment to an ECC.
Second, as earlier noted, the proposition would constitute a collateral attack on the validity of DAO 2003-
30 and the Revised Manual, which is not allowed under the premises. The Casiño Group itself has
abandoned this claim before this Court so that the issue is not properly before this Court for its
resolution.
Third, assuming that a collateral attack on the validity of DAO 2003-30 and the Revised Manual can be
allowed in this case, the rules on amendments appear to be reasonable, absent a showing of grave abuse
of discretion or patent illegality.
Essentially, the rules take into consideration the nature of the amendment in determining the proper
Environmental Impact Assessment (EIA) document type that the project proponent will submit in support
of its application for an amendment to its previously issued ECC. A minor amendment will require a less
detailed EIA document type, like a Project Description Report (PDR), while a major amendment will
require a more detailed EIA document type, like an Environmental Performance Report and Management
Plan (EPRMP) or even an EIS.230
The rules appear to be based on the premise that it would be unduly burden some or impractical to
require a project proponent to submit a detailed EIA document type, like an EIS, for amendments that,
upon preliminary evaluation by the DENR, will not cause significant environmental impact. In particular,
as applied to the subject project, the DENR effectively determined that it is impractical to requireRP
Energy to, in a manner of speaking, start from scratch by submitting a new EIS in support of its
application for the first amendment to its previously issued ECC, considering that the existing EIS may be
supplemented by an EPRMP to adequately evaluate the environmental impact of the proposed
modifications under the first amendment. The same reasoning may be applied to the PDR relative to the
second amendment. As previously discussed, the Casiño Group failed to provethat the EPRMP and PDR
were inadequate to assess the environmental impact of the planned modifications under the first and
second amendments, respectively. On the contrary, the EPRMP and PDR appeared to contain the details
of the planned modifications and the corresponding adjustments to bemade in the environmental
management plan or mitigating measures inorder to address the potential impacts of these planned
modifications. Hence, absent sufficient proof, there is no basis to conclude that the procedure adopted
by the DENR was done with grave abuse of discretion.
Justice Leonen’s proposition would effectively impose a stringent requirement of an EIS for each and
every proposed amendment to an ECC, no matter how minor the amendment may be. While this
requirement would seem ideal, in order to ensure that the environmental impact of the proposed
amendment is fully taken into consideration, the pertinent laws do not, however, expressly require that
such a procedure be followed.As already discussed, the DENR appear to have reasonably issued DAO
2003-30 and the Revised Manualrelative to the amendment process of an ECC, by balancing practicality
vis-à-vis the need for sufficient information in determining the environmental impact of the proposed
amendment to an ECC. In fine, the Court cannot invalidate the rules which appear to be reasonable,
absent a showing of grave abuse of discretion or patent illegality.
We next tackle Justice Leonen’s argument that a petition for certiorari,and not a writ of kalikasan,is the
proper remedy to question a defect in an ECC.
In general, the proper procedure to question a defectin an ECC is to follow the appeal process provided
in DAO 2003-30 and the Revised Manual. After complying with the proper administrative appeal process,
recourse may be made to the courts in accordance with the doctrine of exhaustion of administrative
remedies. However, as earlier discussed, in exceptional cases, a writ of kalikasan may be availed of to
challenge defects in the ECC providedthat (1) the defects are causally linked or reasonably connected to
an environmental damage of the nature and magnitudecontemplated under the Rules on Writ of
Kalikasan, and (2) the case does not violate, or falls under an exception to, the doctrine of exhaustion of
administrative remedies and/or primary jurisdiction.
As previously discussed, in the case at bar, only the allegation with respect to the lack of an EIA relative
to the first and second amendments to the subject ECC may be reasonably connected to such an
environmental damage. Further, given the extreme urgency of resolving the issue due to the looming
power crisis, this case may be considered as falling under an exception to the doctrine of exhaustion of
administrative remedies. Thus, the aforesaid issue may be conceivably resolved in a writ of kalikasan
case.
More importantly, we have expressly ruled that this case is an exceptional case due to the looming
power crisis, so that the rules of procedure may be suspended in order to address issues which,
ordinarily, the Court would not consider proper in a writ of kalikasan case. Hence, all issues, including
those not proper in a writ of kalikasan case, were resolved here in order to forestall another round of
protracted litigation relative to the implementation of the subject project.
Conclusion
We now summarize our findings:
1. The appellate court correctly ruled that the Casiño Group failed to substantiate its claims
thatthe construction and operation of the power plant will cause environmental damage of the
magnitude contemplated under the writ of kalikasan. On the other hand, RP Energy presented
evidenceto establish that the subject project will not cause grave environmental damage,
through its Environmental Management Plan, which will ensure thatthe project will operate
within the limits of existing environmental laws and standards;
2. The appellate court erred when it invalidated the ECC on the ground of lack of signature of
Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy of the ECC submitted by
RP Energy to the appellate court. While the signature is necessary for the validity of the ECC, the
particular circumstances of this case show that the DENR and RP Energy were not properly
apprised of the issue of lack of signature in order for them to present controverting evidence
and arguments on this point, as the issue only arose during the course of the proceedings upon
clarificatory questions from the appellate court. Consequently, RP Energy cannot be faulted for
submitting the certified true copy of the ECC only after it learned that the ECC had been
invalidatedon the ground of lack of signature in the January 30, 2013 Decision of the appellate
court. The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement
of Accountability portion, was issued by the DENR-EMB, and remains uncontroverted. It showed
that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008. Because
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 93
the signing was done after the official release of the ECC on December 22, 2008, wenote that 2.1. The January 30, 2013 Decision and May 22, 2013 Resolution of the Court
the DENR did not strictly follow its rules, which require that the signing of the Statement of of Appeals in CA-G.R. SP No. 00015 are reversed and set aside;
Accountability should be done before the official release of the ECC. However, considering that 2.2. The Petition for Writ of Kalikasan, docketed as CA-G.R. SP No. 00015, is
the issue was not adequately argued norwas evidence presented before the appellate court on denied for insufficiency of evidence;
the circumstances at the time of signing, there is insufficient basis to conclude that the 2.3. The validity of the December 22, 2008 Environmental Compliance
procedure adoptedby the DENR was tainted with bad faith or inexcusable negligence. We Certificate, as well as the July 8, 2010 first amendment and the May 26, 2011
remind the DENR, however, to be more circumspect in following its rules. Thus, we rule that the second amendment thereto, issued by the Department of Environment and
signature requirement was substantially complied with pro hac vice. Natural Resources in favor of Redondo Peninsula Energy, Inc., are upheld; and
3. The appellate court erred when it ruled that the first and second amendments to the ECC 2.4. The validity of the June 8, 2010 Lease and Development Agreement
were invalid for failure to comply with a new EIA and for violating DAO 2003-30 and the Revised between Subic Bay Metropolitan Authority and Redondo Peninsula Energy,
Manual. It failed to properly consider the applicable provisions in DAO 2003-30 and the Revised Inc. is upheld.
Manual for amendment to ECCs. Our own examination of the provisions on amendments to SO ORDERED.
ECCs in DAO 2003-30 and the Revised Manual, as wellas the EPRMP and PDR themselves, shows
that the DENR reasonably exercised its discretion in requiring an EPRMP and a PDR for the first
and second amendments, respectively. Through these documents, which the DENR reviewed, a
new EIA was conducted relative to the proposed project modifications. Hence, absent sufficient
showing of grave abuse of discretion or patent illegality, relative to both the procedure and
substance of the amendment process, we uphold the validity of these amendments;
4. The appellate court erred when it invalidated the ECC for failure to comply with Section 59 of
the IPRA Law.1âwphi1 The ECC is not the license or permit contemplated under Section 59 of
the IPRA Law and its implementing rules. Hence, there is no necessity to secure the CNO under
Section 59 before an ECC may be issued, and the issuance of the subject ECC without first
securing the aforesaid certification does not render it invalid;
5. The appellate court erred when it invalidated the LDA between SBMA and RP Energy for
failure to comply withSection 59 of the IPRA Law. While we find that a CNO should have been
secured prior to the consummation of the LDA between SBMA and RP Energy, considering that
this is the first time we lay down the rule of action appropriate to the application of Section 59,
we refrain from invalidating the LDA for reasons of equity;
6. The appellate court erred when it ruled that compliance with Section 27, in relation to Section
26, of the LGC (i.e., approval of the concerned sanggunian requirement) is necessary prior to
issuance of the subjectECC. The issuance of an ECC does not, by itself, result inthe
implementation of the project. Hence, there is no necessity to secure prior compliance with the
approval of the concerned sanggunian requirement, and the issuance of the subject ECC without
first complying with the aforesaid requirement does not render it invalid. The appellate court
also erred when it ruled that compliance with the aforesaid requirement is necessary prior to
the consummation of the LDA. By virtue of the clear provisions of RA 7227, the project is not
subject to the aforesaid requirement and the SBMA’s decision to approve the project prevails
over the apparent objections of the concerned sanggunians. Thus, the LDA entered into
between SBMA and RP Energy suffers from no infirmity despite the lack of approval of the
concerned sanggunians; and
7. The appellate court correctly ruled thatthe issue as to the validity of the third amendment to
the ECC cannot be resolved in this case because it was not one of the issues set during the
preliminary conference, and would, thus, violate RP Energy’s right to due process. WHEREFORE,
the Court resolves to:
1. DENY the Petition in G.R. No. 207282; and
2. GRANT the Petitions in G.R.Nos. 207257, 207366 and 207276:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 94
G.R. No. 180771               April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g., TOOTHED WHALES,
DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in and Represented herein by Human
Beings Gloria Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the
Lesser Life-Forms and as Responsible Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), SECRETARY
JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and Natural Resources
(DENR), LEONARDO R. SIBBALUCA, DENR Regional Director-Region VII and in his capacity as
Chairperson of the Tañon Strait Protected Seascape Management Board, Bureau of Fisheries and
Aquatic Resources (BFAR), DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region
VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL, RAMON
YANONG, FRANCISCO LABID, in their personal capacity and as representatives of the SUBSISTENCE
FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR
FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY
AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), JOSE L.
ATIENZA, in his capacity as Secretary of the Department of Environment and Natural Resources
(DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional Director-Region VII and as
Chairperson of the Tañon Strait Protected Seascape Management Board, ALAN ARRANGUEZ, in his
capacity as Director - Environmental Management Bureau-Region VII, DOE Regional Director for Region
VIII1 ANTONIO LABIOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC., Respondents.
CONCURRING OPINION
"Until one has loved an animal,
a part of one 's soul remains unawakened."
Anatole France
LEONEN, J.:
I concur in the result, with the following additional reasons.
I ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all
In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their personal
capacity, alleging that they stand to benefit or be injured from the judgment on the issues. The human
petitioners implead themselves in a representative capacity "as legal guardians of the lesser life-forms
and as responsible stewards of God's Creations."1 They use Oposa v. Factoran, Jr.2 as basis for their claim,
asserting their right to enforce international and domestic environmental laws enacted for their benefit
under the concept of stipulation pour autrui.3 As the representatives of Resident Marine Mammals, the
human petitioners assert that they have the obligation to build awareness among the affected residents
of Tañon Strait as well as to protect the environment, especially in light of the government's failure, as
primary steward, to do its duty under the doctrine of public trust.4
Resident Marine Mammals and the human petitioners also assert that through this case, this court will
have the opportunity to lower the threshold for locus standi as an exercise of "epistolary jurisdiction."5
The zeal of the human petitioners to pursue their desire to protect the environment and to continue to
define environmental rights in the context of actual cases is commendable. However, the space for legal
creativity usually required for advocacy of issues of the public interest is not so unlimited that it should
be allowed to undermine the other values protected by current substantive and procedural laws. Even
rules of procedure as currently formulated set the balance between competing interests. We cannot
abandon these rules when the necessity is not clearly and convincingly presented.
The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for
animals through their allegation that they can speak for them. Obviously, we are asked to accept the
premises that (a) they were chosen by the Resident Marine Mammals of Tañon Strait; (b) they were
chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were able
to communicate with them; and (d) they received clear consent from their animal principals that they
would wish to use human legal institutions to pursue their interests. Alternatively, they ask us to
acknowledge through judicial notice that the interests that they, the human petitioners, assert are
identical to what the Resident Marine Mammals would assert had they been humans and the legal
strategies that they invoked are the strategies that they agree with.
In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.
Fundamental judicial doctrines that may significantly change substantive and procedural law cannot be
founded on feigned representation.
Instead, I agree that the human petitioners should only speak for themselves and already have legal
standing to sue with respect to the issue raised in their pleading. The rules on standing have already been
liberalized to take into consideration the difficulties in the assertion of environmental rights. When
standing becomes too liberal, this can be the occasion for abuse.
II
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:
SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action.
The Rules provide that parties may only be natural or juridical persons or entities that may be authorized
by statute to be parties in a civil action.
Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every
natural person and is lost only through death. Capacity to act, which is the power to do acts with legal
effect, is acquired and may be lost.
Article 40 further defines natural persons in the following manner:
purposes that are favorable to it, provided it be born later with the conditions specified 'in the following
article.
Article 44, on the other hand, enumerates the concept of a juridical person:
ARTICLE 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created by law;
their personality begins as soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose to which the law
grants a juridical personality, separate and distinct from that of each shareholder, partner or
member.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 95
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine Mammals or
animals. This we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:
SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by
law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest. (2a)6
A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another party's
act or omission has caused a direct injury, making his or her interest both material and based on an
enforceable legal right.8
Representatives as parties, on the other hand, are parties acting in representation of the real party in
interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:
SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real party in interest. A representative may be a trustee of an
express rust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without
joining the principal except when the contract involves things belonging to the principal.(3a)9
The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or
actually benefit or suffer from the judgment, but instead brings a case in favor of an identified real party
in interest.10 The representative is an outsider to the cause of action. Second, the rule provides a list of
who may be considered as "representatives." It is not an exhaustive list, but the rule limits the coverage
only to those authorized by law or the Rules of Court.11
These requirements should apply even in cases involving the environment, which means that for the
Petition of the human petitioners to prosper, they must show that (a) the Resident Marine Mammals are
real parties in interest; and (b) that the human petitioners are authorized by law or the Rules to act in a
representative capacity.
The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Tañon Strait."12 While relatively new in Philippine jurisdiction, the issue of
whether animals have legal standing before courts has been the subject of academic discourse in light of
the emergence of animal and environmental rights.
In the United States, anim4l rights advocates have managed to establish a system which Hogan explains
as the "guardianship model for nonhuman animals":13
Despite Animal Lovers, there exists a well-established system by which nonhuman animals may obtain
judicial review to enforce their statutory rights and protections: guardianships. With court approval,
animal advocacy organizations may bring suit on behalf of nonhuman animals in the same way court-
appointed guardians bring suit on behalf of mentally-challenged humans who possess an enforceable
right but lack the ability to enforce it themselves.
In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural Objects,
Christopher D. Stone asserts that the environment should possess the right to seek judicial redress even
though it is incapable of representing itself. While asserting the rights of
speechless entities such as the environment or nonhuman animals certainly poses legitimate challenges -
such as identifying the proper spokesman -the American legal system is already well-equipped with a
reliable mechanism by which nonhumans may obtain standing via a judicially established guardianship.
Stone notes that other speechless - and nonhuman - entities such as corporations, states, estates, and
municipalities have standing to bring suit on their own behalf. There is little reason to fear abuses under
this regime as procedures for removal and substitution, avoiding conflicts of interest, and termination of
a guardianship are well established.
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The court
indicated that AL VA might have obtained standing in its own right if it had an established history of
dedication to the cause of the humane treatment of animals. It noted that the Fund for Animals had
standing and indicated that another more well-known advocacy organization might have had standing as
well. The court further concluded that an organization's standing is more than a derivative of its history,
but history is a relevant consideration where organizations are not well-established prior to commencing
legal action. ALVA was not the proper plaintiff because it could not identify previous activities
demonstrating its recognized activism for and commitment to the dispute independent of its desire to
pursue legal action. The court's analysis suggests that a qualified organization with a demonstrated
commitment to a cause could indeed bring suit on behalf of the speechless in the form of a court-
sanctioned guardianship.
This Comment advocates a shift in contemporary standing doctrine to empower non-profit organizations
with an established history of dedication to the cause and relevant expertise to serve as official guardians
ad !item on behalf of nonhuman animals interests. The American legal system has numerous
mechanisms for representing the rights and interests of nonhumans; any challenges inherent in
extending these pre-existing mechanisms to nonhuman animals are minimal compared to an interest in
the proper administration of justice. To adequately protect the statutory rights of nonhuman animals,
the legal system must recognize those statutory rights independent of humans and provide a viable
means of enforcement. Moreover, the idea of a guardianship for speechless plaintiffs is not new and has
been urged on behalf of the natural environment. 'Such a model is even more compelling as applied to
nonhuman animals, because they are sentient beings with the ability to feel pain and exercise rational
thought. Thus, animals are qualitatively different from other legally protected nonhumans and therefore
have interests deserving direct legal protection.
Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the integrity
of the federal statutes designed to protect them, essentially rendering them meaningless. Sensing that
laws protecting nonhuman animals would be difficult to enforce, Congress provided for citizen suit
provisions: the most well-known example is found in the Endangered Species Act (ESA). Such provisions
are evidence of legislative intent to encourage civic participation on behalf of nonhuman animals. Our
law of standing should reflect this intent and its implication that humans are suitable representatives of
the natural environment, which includes nonhuman animals.14 (Emphasis supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals are considered as similarly
situated as individuals who have enforceable rights but, for a legitimate reason (e.g., cognitive disability),
are unable to bring suit for themselves. They are also similar to entities that by their very nature are
incapable of speaking for themselves (e.g., corporations, states, and others).
In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having
standing to sue and, therefore, may be properly represented as real parties in interest. The same cannot
be said about animals.
Animals play an important role in households, communities, and the environment. While we, as humans,
may feel the need to nurture and protect them, we cannot go as far as saying we represent their best
interests and can, therefore, speak for them before the courts. As humans, we cannot be so arrogant as
to argue that we know the suffering of animals and that we know what remedy they need in the face of
an injury.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 96
Even in Hogan's discussion, she points out that in a case before the United States District Court for the
Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court held that an
emotional response to what humans perceive to be an injury inflicted on an animal is not within the
"zone-of-interest" protected by law.16 Such sympathy cannot stand independent of or as a substitute for
an actual injury suffered by the claimant.17 The ability to represent animals was further limited in that
case by the need to prove "genuine dedication" to asserting and protecting animal rights:
What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing doctrine
further required ALVA to differentiate its genuine dedication to the humane treatment of animals from
the general disdain for animal cruelty shared by the public at large. In doing so, the court found ALVA 's
asserted organizational injury to be abstract and thus relegated ALVA to the ranks of the "concerned
bystander. "
....
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The court
indicated that ALVA might have obtained standing in its own right if it had an established history of
dedication to the cause of the humane treatment of animals. It noted that the Fund for Animals had
standing and indicated that another more well-known advocacy organization might have had standing as
well. The court further concluded that an organization's standing is more than a derivative of its history,
but history is a relevant consideration where organizations are not well-established prior to commencing
legal action. ALVA was not the proper plaintiff because it could not identify previous activities
demonstrating its recognized activism for and commitment to the dispute independent of its desire to
pursue legal action. The court's analysis suggests that a qualified organization with a demonstrated
commitment to a cause could indeed bring suit on behalf of the speechless in the form of a court-
sanctioned guardianship.18 (Emphasis supplied, citation omitted)
What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for Environmental Cases.
A citizen suit allows any Filipino to act as a representative of a party who has enforceable rights under
environmental laws before Philippine courts, and is defined in Section 5: .
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations yet
unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a
citizen suit, the court shall issue an order which shall contain a brief description of the cause of action
and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the
case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper
of a general circulation in the Philippines or furnish all affected barangays copies of said order.
There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let alone
present that they would wish to use our court system, which is designed to ensure that humans seriously
carry their responsibility including ensuring a viable ecology for themselves, which of course includes
compassion for all living things.
Our rules on standing are sufficient and need not be further relaxed.
In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have given to
the rule on standing. While representatives are not required to establish direct injury on their part, they
should only be allowed to represent after complying with the following: [I]t is imperative for them to
indicate with certainty the injured parties on whose behalf they bring the suit. Furthermore, the interest
of those they represent must be based upon concrete legal rights. It is not sufficient to draw out a
perceived interest from a general, nebulous idea of a potential "injury."20
I reiterate my position in Arigo v. Swift and in Paje v. Casiño21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran22 for environmental cases. In Arigo, I opined that
procedural liberality, especially in cases brought by representatives, should be used with great caution:
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to call attention to environmental concerns
in light of emerging international legal principles. While "intergenerational responsibility" is a noble
principle, it should not be used to obtain judgments that would preclude future generations from making
their own assessment based on their actual concerns. The present generation must restrain itself from
assuming that it can speak best for those who will exist at a different time, under a different set of
circumstances. In essence, the unbridled resort to representative suit will inevitably result in preventing
future generations from protecting their own rights and pursuing their own interests and decisions. It
reduces the autonomy of our children and our children 's children. Even before they are born, we again
restricted their ability to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be allowed
only when a) there is a clear legal basis for the representative suit; b) there are actual concerns based
squarely upon an existing legal right; c) there is no possibility of any countervailing interests existing
within the population represented or those that are yet to be born; and d) there is an absolute necessity
for such standing because there is a threat of catastrophe so imminent that an immediate protective
measure is necessary. Better still, in the light of its costs and risks, we abandon the precedent all
together.23 (Emphasis in the original)
Similarly, in Paje:
A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or she
who invokes the court's jurisdiction must be the "owner of the right sought to be enforced." In other
words, he or she must have a cause of action. An action may be dismissed on the ground of lack of cause
of action if the person who instituted it is not the real party in interest.24 The term "interest" under the
Rules of Court must refer to a material interest that is not merely a curiosity about or an "interest in the
question involved." The interest must be present and substantial. It is not a mere expectancy or a future,
contingent interest.
A person who is not a real party in interest may institute an action if he or she is suing as representative
of a .real party in interest. When an action is prosecuted or defended by a representative, that
representative is not and does not become the real party in interest. The person represented is deemed
the real party in interest. The representative remains to be a third party to the action instituted on behalf
of another.
....
To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an identified
party whose right has been violated, resulting in some form of damage, and (b) the representative
authorized by law or the Rules of Court to represent the victim."
The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit under this
rule allows any Filipino citizen to file an action for the enforcement of environmental law on behalf of
minors or generations yet unborn. It is essentially a representative suit that allows persons who are not
real parties in interest to institute actions on behalf of the real party in interest.
The expansion of what constitutes "real party in interest" to include minors and generations yet unborn
is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the capacity of minors
(represented by their parents) to file a class suit on behalf of succeeding generations based on the
concept of intergenerational responsibility to ensure the future generation's access to and enjoyment of
[the] country's natural resources.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 97
To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:
First, they run the risk of foreclosing arguments of others who are unable to take part in the suit, putting
into. question its representativeness. Second, varying interests may potentially result in arguments that
are bordering on political issues, the resolutions of which do not fall upon this court. Third, automatically
allowing a class or citizen's suit on behalf of minors and generations yet unborn may result in the
oversimplification of what may be a complex issue, especially in light of the impossibility of determining
future generation's true interests on the matter.
In citizen's suits, persons who may have no interest in the case may file suits for others. Uninterested
persons will argue for the persons they represent, and the court will decide based on their evidence and
arguments. Any decision by the court will be binding upon the beneficiaries, which in this case are the
minors and the future generations. The court's decision will be res judicata upon them and conclusive
upon the issues presented.25
The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its potential to
diminish the value of legitimate environmental rights. Extending the application of "real party in interest"
to the Resident Marine Mammals, or animals in general, through a judicial pronouncement will
potentially result in allowing petitions based on mere concern rather than an actual enforcement of a
right. It is impossible for animals to tell humans what their concerns are. At best, humans can only
surmise the extent of injury inflicted, if there be any. Petitions invoking a right and seeking legal redress
before this court cannot be a product of guesswork, and representatives have the responsibility to
ensure that they bring "reasonably cogent, rational, scientific, well-founded arguments"26 on behalf of
those they represent.
Creative approaches to fundamental problems should be welcome. However, they should be considered
carefully so that no unintended or unwarranted consequences should follow. I concur with the approach
of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as it carefully narrows down
the doctrine in terms of standing. Resident Marine Mammals and the human petitioners have no legal
standing to file any kind of petition.
However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk Development
Center,. Engarcial, Yanong, and Labid, have standing both as real parties in interest and as
representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and Pinamungahan, Cebu,
and their families, and the present and future generations of Filipinos whose rights are similarly affected.
The activities undertaken under Service Contract 46 (SC-46) directly affected their source of livelihood,
primarily felt through the significant reduction of their fish harvest.27 The actual, direct, and material
damage they suffered, which has potential long-term effects transcending generations, is a proper
subject of a legal suit.
III
In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners, most
especially when the implied petitioner was a sitting President of the Republic of the Philippines. In G.R.
No. 180771, apart from adjudicating unto themselves the status of "legal guardians" of whales, dolphins,
porpoises, and other cetacean species, human petitioners also impleaded Former President Gloria
Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and undertaking in the ASEAN
Charter to protect Tañon Strait."28
No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent. In
our jurisdiction, only when there is a party that should have been a necessary party but was unwilling to
join would there be an allegation as to why that party has been omitted. In Rule 3, Section 9 of the 1997
Rules of Civil Procedure:
SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim is
asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver
of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the
judgment rendered therein shall be without prejudice to the rights of such necessary party.29
A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should be
impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the 1997
Rules of Civil Procedure:
SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.30
The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but who
do not consent should be put within the jurisdiction of the court through summons or other court
processes. Petitioners. should not take it upon themselves to simply imp lead any party who does not
consent as a petitioner. This places the unwilling co-petitioner at the risk of being denied due process.
Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions by
suing his or her alter-egos. The procedural situation caused by petitioners may have gained public
attention, but its legal absurdity borders on the contemptuous. The Former President's name should be
stricken out of the title of this case.
IV
I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.
SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected Areas
System Act of 1992, and Presidential Decree No. 1234,31 which declared Tañon Strait as a protected
seascape. It is unconstitutional because it violates the fourth paragraph of Article XII, Section 2 of the
Constitution.
V
Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII, Section
2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd. (JAPEX) is 100%
Japanese-owned.32 It further asserts that SC-46 cannot be validly classified as a technical and financial
assistance agreement executed under Article XII, Section 2, paragraph 4 of the 1987 Constitution.33 Public
respondents counter that SC-46 does not fall under the coverage of paragraph 1, but is a validly executed
contract under paragraph 4.34· Public respondents further aver that SC-46 neither granted exclusive
fishing rights to JAPEX nor violated Central Visayas Fisherfolk Development Center's right to preferential
use of communal marine and fishing resources.35
VI
Article XII, Section 2 of the 1987 Constitution states:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception. of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be under
the full control and supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 98
agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-
five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays,
and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution. (Emphasis supplied)
I agree that fully foreign-owned corporations may participate in the exploration, development, and use
of natural resources, but only through either financial agreements or technical ones. This is the clear
import of the words "either financial or technical assistance agreements." This is also
the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and 1935
Constitution:
1973 CONSTITUTION
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
association at least sixty per centum of the capital of which is owned by such citizens. The Batasang
Pambansa, in the national interest, may allow such citizens, corporations, or associations to enter into
service contracts for financial, technical, management, or other forms of assistance with any foreign
person or entity for the exploitation, development, exploitation, or utilization of any of the natural
resources. Existing valid and binding service contracts for financial, the technical, management, or other
forms of assistance are hereby recognized as such. (Emphasis supplied)
1935 CONSTITUTION
ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the
time of the inauguration of the Government established under this Constitution. Natural resources, with
the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for
the exploitation, development, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and the limit of the grant.
The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation
from the Constitutional Commission deliberations. The constitutional texts are the product of a full
sovereign act: deliberations in a constituent assembly and ratification. Reliance on recorded discussion of
Constitutional Commissions, on the other hand, may result in dependence on incomplete authorship;
Besides, it opens judicial review to further subjectivity from those who spoke during the Constitutional
Commission deliberations who may not have predicted how their words will be used. It is safer that we
use the words already in the Constitution. The Constitution was their product. Its words were read by
those who ratified it. The Constitution is what society relies upon even at present.
SC-46 is neither a financial assistance nor a technical assistance agreement.
Even supposing for the sake of argument that it is, it could not be declared valid in light of the standards
set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36
Such service contracts may be entered into only with respect to minerals, petroleum and other mineral
oils. The grant thereof is subject to several safeguards, among which are these requirements:
(1) The service contract shall be crafted m accordance with a general law that will set standard
or uniform terms, conditions and requirements, presumably to attain a certain uniformity in
provisions and avoid the possible insertion of terms disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose timely
objections, if any.37 (Emphasis in the original, citation omitted)
Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three important
points: (a) whether SC-46 was crafted in accordance with a general law that provides standards, terms,
and conditions; (b) whether SC-46 was signed by the President for and on behalf of the government; and
(c) whether it was reported by the President to Congress within 30 days of execution.
VII
The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or the Oil
Exploration and Development Act of 1972.1âwphi1 It is my opinion that this law is unconstitutional in
that it allows service contracts, contrary to Article XII, Section 2 of the 1987 Constitution:
The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources. (Emphasis supplied)
The deletion of service contracts from the enumeration of the kind of agreements the President may
enter into with foreign-owned corporations for exploration and utilization of resources means that
service contracts are no longer allowed by the Constitution. Pursuant to Article XVIII, Section 3 of the
1987 Constitution,38 this inconsistency renders the law invalid and ineffective.
SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an
important point, which is that SC-46 did not merely involve exploratory activities, but also provided the
rights and obligations of the parties should it be discovered that there is oil in commercial quantities in
the area. The Tañon Strait being a protected seascape under Presidential Decree No. 123439 requires that
the exploitation and utilization of energy resources from that area are explicitly covered by a law passed
by Congress specifically for that purpose, pursuant to Section 14 of Republic Act No. 7586 or the National
Integrated Protected Areas System Act of 1992:
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 99
SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and
submitted to the President for recommendation to Congress. Any exploitation and utilization of energy
resources found within NIP AS areas shall be allowed only through a law passed by Congress.40 (Emphasis
supplied)
No law was passed by Congress specifically providing the standards, terms, and conditions of an oil
exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities could have
been validly undertaken under SC-46. The National Integrated Protected Areas System Act of 1992 is
clear that exploitation and utilization of energy resources in a protected seascape such as Tañon Strait
shall only be allowed through a specific law.
VIII
Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the requirement
set by paragraph 4 of Article XII, Section 2 for service contracts involving the exploration of petroleum.
SC-46 was entered into by then Department of Energy Secretary Vicente S. Perez, Jr., on behalf of the
government. I agree with the Main Opinion that in cases where the Constitution or law requires the
President to act personally on the matter, the duty cannot be delegated to another public official.41 La
Bugal highlights the importance of the President's involvement, being one of the constitutional
safeguards against abuse and corruption, as not mere formality:
At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:
• In their deliberations on what was to become paragraph 4, the framers used the term service
contracts in referring to agreements x x x involving either technical or financial assistance. •
They spoke of service contracts as the concept was understood in the 1973 Constitution.
• It was obvious from their discussions that they were not about to ban or eradicate service
contracts.
• Instead, they were plainly crafting provisions to. put in place safeguards that would eliminate
or m minimize the abuses prevalent during the marital law regime.42 (Emphasis in the original)
Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in the
signing or execution of SC-46. The failure to comply with this constitutional requirement renders SC-46
null and void.
IX
Public respondents also failed to show that Congress was subsequently informed of the execution and
existence of SC-46. The reporting requirement is an equally important requisite to the validity of any
service contract involving the exploration, development, and utilization of Philippine petroleum. Public
respondents' failure to report to Congress about SC-46 effectively took away any opportunity for the
legislative branch to scrutinize its terms and conditions.
In sum, SC-46 was executed and implemented absent all the requirements provided under paragraph 4
of Article XII, Section 2. It is, therefore, null and void.
X protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null and
void for being violative of environmental laws protecting Tañon Strait. In particular, SC-46 was
implemented despite falling short of the requirements of the National Integrated Protected Areas System
Act of 1992.
As a protected seascape under Presidential Decree No. 1234,43 Tañon Strait is covered by the National
Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:
SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all components of
the natural environment particularly the effect of increasing population, resource exploitation and
industrial advancement and recognizing the critical importance of protecting and maintaining the natural
biological and physical diversities of the environment notably on areas with biologically unique features
to sustain human life and development, as well as plant and animal life, it is hereby declared the policy of
the State to secure for the Filipino people of present and future generations the perpetual existence of
all native plants and animals through the establishment of a comprehensive system of integrated
protected areas within the classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological values
that may be incorporated into a holistic plan representative of our natural heritage; that effective
administration of these areas is possible only through cooperation among national government, local and
concerned private organizations; that the use and enjoyment of these protected areas must be
consistent with the principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which
shall encompass outstanding remarkable areas and biologically important public lands that are habitats
of rare and endangered species of plants and animals, biogeographic zones and related ecosystems,
whether terrestrial, wetland or marine, all of which shall be designated as "protected areas."44 (Emphasis
supplied)
Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental Impact
Assessment:
SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of the
management plan for protected areas shall be subject to an environmental impact assessment as
required by law before they are adopted, and the results thereof shall be taken into consideration in the
decision-making process.45 (Emphasis supplied)
The same provision further requires that an Environmental Compliance Certificate be secured under the
Philippine Environmental Impact Assessment System before arty project is implemented:
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry them
out in such manner as will minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied)
In projects involving the exploration or utilization of energy resources, the National Integrated Protected
Areas System Act of 1992 additionally requires that a program be approved by the Department of
Environment and Natural Resources, which shall be publicly accessible. The program shall also be
submitted to the President, who in turn will recommend the program to Congress. Furthermore,
Congress must enact a law specifically allowing the exploitation of energy resources found within a
protected area such as Tañon Strait:
SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof,
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and
submitted to the President for recommendation to Congress. Any exploitation and utilization of energy
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 100
resources found within NIPAS areas shall be allowed only through a taw passed by Congress.47 (Emphasis
supplied)
Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by SC-46 fell
under Section 14 of the National Integrated Protected Areas System Act of 1992, which they interpret to
be an exception to Section 12. They argue that the Environmental Compliance Certificate is not a strict
requirement for the validity of SC-46 since (a) the Tañon Strait is not a nature' reserve or natural park; (b)
the exploration was merely for gathering information; and ( c) measures were in place to ensure that the
exploration caused the least possible damage to the area.49
Section 14 is not an exception to Section 12, but instead provides additional requirements for cases
involving Philippine energy resources. The National Integrated Protected Areas System Act of 1992 was
enacted to recognize the importance of protecting the environment in light of resource exploitation,
among others.50 Systems are put in place to secure for Filipinos local resources under the most favorable
conditions. With the status of Tañon Strait as a protected seascape, the institution of additional legal
safeguards is even more significant.
Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based on
the records, JAPEX commissioned an environmental impact evaluation only in the second subphase of its
project, with the Environmental Management .Bureau of Region
VII granting the project an Environmental Compliance Certificate on March 6, 2007.51
Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any environmental
assessment contrary to Section 12 of the National Integrated Protected Areas System Act of 1992.
XI
Finally, we honor every living creature when we take care of our environment. As sentient species, we do
not lack in the wisdom or sensitivity to realize that we only borrow the resources that we use to survive
and to thrive. We are not incapable of mitigating the greed that is slowly causing the demise of our
planet. Thus, there is no need for us to feign representation of any other species or some imagined
unborn generation in filing any action in our courts of law to claim any of our fundamental rights to a
healthful ecology. In this way and with candor and courage, we fully shoulder the responsibility deserving
of the grace and power endowed on our species.
ACCORDINGLY, I vote:
(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former
President Gloria Macapagal-Arroyo from the title of this case;
(b) to GRANT G.R. No. 181527; and
(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987 Constitution,
Republic Act No. 7586, and Presidential Decree No. 1234.
MARVIC M.V.F. LEONEN
Associate Justice

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 101

G.R. No. 194239               June 16, 2015
WEST TOWER CONDOMINIUM CORPORATION, on behalf of the Residents of West Tower
Condominium and in representation of Barangay Bangkal, and others, including minors and
generations yet unborn, Petitioners,
vs.
FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN CORPORATION and their RESPECTIVE BOARD
OF DIRECTORS AND OFFICERS, JOHN DOES, and RICHARD DOES, Respondents.
DECISION
VELASCO, JR., J.:
Nature of the Case
Before the Court is the Petition for the Issuance of a Writ of Kalikasan filed following the leak in the oil
pipeline owned by First Philippine Industrial Corporation (FPIC) in Makati City. The Facts
Respondent FPI C operates two pipelines since 1969, viz: ( 1) the White Oil Pipeline (WOPL) System,
which covers a 117-kilometer stretch from Batangas to the Pandacan Terminal in Manila and transports
diesel, gasoline, jet fuel and kerosene; and (b) the Black Oil Pipeline (BOPL) System which extends 105
kilometers and transports bunker fuel from Batangas to a depot in Sucat, Parañaque. These systems
transport nearly 60% of the petroleum requirements of Metro Manila and parts of the provinces of
Bulacan, Laguna, and Rizal.
The two pipelines were supposedly designed to provide more than double the standard safety allowance
against leakage, considering that they are made out of heavy duty steel that can withstand more than
twice the current operating pressure and are buried at a minimum depth of 1.5 meters, which is deeper
than the US Department of Transportation standard of 0.9 meters. In May 2010, however, a leakage from
one of the pipelines was suspected after the residents of West Tower Condominium (West Tower)
started to smell gas within the condominium. A search made on July 10, 2010 within the condominium
premises led to the discovery of a fuel leak from the wall of its Basement 2. Owing to its inability to
control the flow, West Tower's management reported the matter to the Police Department of Makati
City, which in turn called the city's Bureau of Fire Protection.
What started as a two-drum leak at the initial stages became a 15-20 drum a day affair. Eventually, the
sump pit of the condominium was ordered shut down by the City of Makati to prevent the discharge of
contaminated water into the drainage system of Barangay Bangkal. Eventually, the fumes compelled the
residents of West Tower to abandon their respective units on July 23, 2010 and the condo's power was
shut down.
Petitioner FPIC initially disowned any leak from its oil pipeline. Thus, the residents of West Tower
shouldered the expenses of hauling the waste water from its basement, which eventually required the
setting up of a treatment plant in the area to separate fuel from the waste water. On October 28, 2010,
the University of the Philippines-National Institute of Geological Sciences (UP-NIGS), which the City of
Makati invited to determine the source of the fuel, found a leak in FPIC's WOPL about 86 meters from
West Tower.
A day after, or on October 29, 2010, FPIC admitted that indeed the source of the fuel leak is the WOPL,
which was already closed since October 24, 2010, but denied liability by placing blame on the
construction activities on the roads surrounding West Tower.
On November 15, 2010, West Tower Condominium Corporation (West Tower Corp.) interposed the
present Petition for the Issuance of a Writ of Kalikasan on behalf of the residents of West Tower and in
representation of the surrounding communities in Barangay Bangkal, Makati City. West Tower Corp. also
alleged that it is joined by the civil society and several people's organizations, non-governmental
organizations and public interest groups who have expressed their intent to join the suit because of the
magnitude of the environmental issues involved.1
In their petition, petitioners prayed that respondents FPIC and its board of directors and officers, and
First Gen Corporation (FGC) and its board of directors and officers be directed to: (1) permanently cease
and desist from committing acts of negligence in the performance of their functions as a common carrier;
(2) continue to check the structural integrity of the whole 117-kilometer pipeline and to replace the
same; (3) make periodic reports on their findings with regard to the 117-kilometer pipeline and their
replacement of the same; (4) rehabilitate and restore the environment, especially Barangay Bangkal and
West Tower, at least to what it was before the signs of the leak became manifest; and (5) to open a
special trust fund to answer for similar and future contingencies in the future. Furthermore, petitioners
pray that respondents be prohibited from opening the pipeline and allowing the use thereof until the
same has been thoroughly checked and replaced, and be temporarily restrained from operating the
pipeline until the final resolution of the case.
To bolster their petition, petitioners argued that FPIC's omission or failure to timely replace. its pipelines
and to observe extraordinary diligence caused the petroleum spill in the City of Makati. Thus, for
petitioners, the continued use of the now 4 7-year old pipeline would not only be a hazard or a threat to
the lives, health, and property of those who live or sojourn in all the municipalities in which the pipeline
is laid, but would also affect the rights of the generations yet unborn to live in a balanced and "healthful
ecology," guaranteed under Section 16, Article II of the 1987 Constitution.
On November 19, 2010, the Court issued the Writ of Kalikasan2 with a Temporary Environmental
Protection Order (TEPO) requiring respondents FPIC, FGC, and the members of their Boards of Directors
to file their respective verified returns. The TEPO enjoined FPIC and FGC to: (a) cease and desist from
operating the WOPL until further orders; (b) check the structural integrity of the whole span of the 11 7-
kilometer WOPL while implementing sufficient measures to prevent and avert any untoward incident
that may result from any leak of the pipeline; and ( c) make a report thereon within 60 days from receipt
thereof.
In compliance with the writ, FPIC directors Edgar Chua, Dennis Javier, Dennis Gamab and Willie
Sarmiento submitted a Joint Return3 praying for the dismissal of the petition and the denial of the
privilege of the Writ of Kalikasan. They alleged that: petitioners had no legal capacity to institute the
petition; there is no allegation that the environmental damage affected the inhabitants of two (2) or
more cities or provinces; and the continued operation of the pipeline should be allowed in the interest of
maintaining adequate petroleum supply to the public.
Respondents FPIC and its directors and officers, other than the aforementioned four ( 4) directors, also
filed a Verified Return4 claiming that not all requirements for the issuance of the Writ of Kalikasan are
present and there is no showing that West Tower Corp. was authorized by all those it claimed to
represent. They further averred that the petition contains no allegation that respondents FPIC directors
and officers acted in such a manner as to allow the piercing of the corporate veil.
Meanwhile, on January 18, 201-1, FGC and the members of its Board of Directors and Officers filed a
Joint Compliance5 submitting the report required by the Writ of Kalikasan/TEPO. They contended that
they neither own nor operate the pipelines, adding that it is impossible for them to report on the
structural integrity of the pipelines, much less to cease and desist from operating them as they have no
capability, power, control or responsibility over the pipelines. They, thus, prayed that the directives of
the Writ of Kalikasan/TEPO be considered as sufficiently performed, as to them.
On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-page "Report on Pipeline Integrity
Check and Preventive Maintenance Program."6 In gist, FPIC reported the following: (I) For the structural
integrity of the 117-kilometer pipeline, (a) the DOE engaged the services of UP-NIGS to do borehole
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 102
testing on 81 pre-identified critical areas of the WQPL in eight cities and municipalities-all the boreholes
showed negative presence of petroleum vapors; (b) pressure tests were conducted after the repair of the
leak and results showed negative leaks and the DOE's pipeline expert, Societe General de Surveillance,
New Zealand, has developed a pressure test protocol requiring a 24-hour operation of running a scraper
pig through the pipeline to eliminate air gap; (c) In-Line Inspection Test, was conducted by NDT through
MFL and ultrasonic. The NDT later cleared the WOPL from any damage or corrosion.
(II) For preventive maintenance measures, (a) Cathodic Protection Systems are installed involving the use
of anode materials and the introduction of electric current in the pipeline to enhance prevention of
corrosion; (b) Regular Scraper Runs through the pipeline to maintain cleanliness and integrity of the
pipelines' internal surface; (c) Daily Patrols every two hours of the pipeline route to deter unauthorized
diggings in the vicinity of the pipeline segments; ( d) Regular coordination meetings with DPWH, MMDA
and utility companies to monitor projects that might involve digging or excavation in the vicinity of the
pipeline segments; (e) Installation of Security Warning Signs along the pipeline route with toll free
number which can be called in the event of an accident or emergency; (f) Emergency Response
Procedure of the ERT is activated by a call-out procedure; (g) Maintenance of Emergency Equipment and
Repair Kit which are always on standby; and, (h) Remotely controlled Isolation Valves are in place to shut
the pipeline when necessary.
On February 9, 2011, petitioners filed, and the Court eventually granted, their Motion to Set the Case for
Preliminary Conference and Hearing7 pursuant to Sec. 11, Rule 7 of the Rules of Procedure for
Environmental Cases.
On April 15, 2011, the Court conducted an ocular inspection of the WOPL in the vicinity of West Tower to
determine the veracity of the claim that there were two (2) additional leaks on FPIC's pipeline. Results of
the ocular inspection belied the claim.
In the meantime, petitioners also filed civil and criminal complaints against respondents arising from the
same incident or leakage from the WOPL.8
Since after the Court's issuance of the Writ of Kalikasan and the TEPO on November 19, 2010, FPIC has
ceased operations on both the WOPL and the BOPL. On May 31, 2011, however, the Court, answering a
query of the DOE, clarified and confirmed that what is covered by the Writ of Kalikasan and TEPO is only
the WOPL System of FPIC; thus, FPIC can resume operation of its BOPL System.9
On July 7, 2011, petitioners filed an Omnibus Motion10 assailing the Court's May 31, 2011 Resolution,
praying for the conduct of oral argument on the issue of reopening the BOPL System. This was followed,
on September 9, 2011, by a Manifestation (Re: Current Developments) with Omnibus Motion11 wherein
petitioners invoked the precautionary principle12 and asserted that the possibility of a leak in the BOPL
System leading to catastrophic environmental damage is enough reason to order the closure of its
operation. They likewise alleged that the entities contracted by FPIC to clean and remediate the
environment are illegally discharging waste water, which had not undergone proper treatment, into the
Parañaque River. Petitioners, thus, prayed that respondents be directed to comply with environmental
laws in rehabilitating the surroundings affected by the oil leak and to submit a copy of their work plan
and monthly reports on the progress thereof. To these omnibus motions, respondents were directed to
file their respective comments.
On September 28, 2011, respondent FPIC filed an Urgent Motion for Leave (To Undertake "Bangkal
Realignment" Project)13 in order to reduce stress on the WOPL System. FPIC sought to construct a new
realigned segment to replace the old pipe segment under the Magallanes Interchange, which covers the
portion that leaked. Petitioners were directed to file their comment on FPIC's motion.
Report and Recommendation of the Court of Appeals
To expedite the resolution of the controversy, the Court remanded the case to the Court of Appeals (CA).
By this Court's Resolution dated November 22, 2011,14 the appellate court was required to conduct
hearings and, thereafter, submit a report and recommendation within 30 days after the receipt of the
parties' memoranda.
On March 21, 2012, the preliminary conference was continued before the CA wherein the parties made
admissions and stipulations of facts and defined the issues for resolution. In view of the technical nature
of the case, the CA also appointed15 several amici curiae,16 but only four (4) filed their reports.17
On December 26, 2012, the CA Former 11th Division submitted to the Court its well-crafted and
exhaustive 156-page Report and Recommendation18 dated December 21, 2012 (CA Report). Some
highlights of the Report:
1. Anent petitioners' June 28, 2011 Omnibus Motion assailing the reopening of the BOPL
System, the CA directed respondent FPIC to submit the appropriate certification from the DOE
as to the safe commercial operation of the BOPL; otherwise, the operation of the BOPL must
also be enjoined.
2. On petitioners' September 9, 2011 Manifestation (Re: Current Developments) with Omnibus
Motion, the CA directed the Inter-Agency Committee on Health to submit its evaluation of the
remediation plan prepared by CH2M Hill Philippines, Inc. for FPIC. Further, the appellate court
directed FPIC to strictly comply with the stipulations contained in the permits issued by the
Department of Environment and Natural Resources (DENR) for its remediation activities in
Barangay Bangkal, Makati City. The DENR was in turn directed by the CA to:
(a) monitor compliance by respondent FPIC with applicable environmental laws and
regulations and conditions set forth in the permits issued;
(b) conduct independent analysis of end-products of the Multi-Phase Extraction
System;
(c) conduct regular consultative meetings with the City of Makati, residents of Barangay
Bangkal and other stakeholders concerning the remediation activities; and,
(d) evaluate the viability of the recommendation of amicus Dr. Benjamin R. De Jesus, Jr.
to include the use of surfactants and oxygen-releasing compounds (ORCs) in the middle
and terminal portions of the remediation plan.
3. Respondent's September 27, 2011 Urgent Motion for Leave (To Undertake "Bangkal
Realignment" Project) was denied.
4. With regard to the March 29, 2012 Supplemental Manifestation (Re: List of Amici Curiae and
Recent Possible Leak in the Pipeline) filed by petitioners, the CA found that the existence of
another possible leak alleged by petitioners was not established. Nonetheless, to prevent such
event, the CA ordered FPIC to: (i) review, adopt and strictly observe appropriate safety and
precautionary measures; (ii) closely monitor the conduct of its maintenance and repair works;
and (iii) submit to the DOE regular monthly reports on the structural integrity and safe
commercial operation of the pipeline.
5. As to the merits of the case, the CA submitted the following recommendations:
(a) That the people's organizations, non-governmental organizations, and public
interest groups that indicated their intention to join the petition and submitted proof of
juridical personality (namely: the Catholic Bishop's Conference of the Philippines;
Kilusang Makabansang Ekonomiya, Inc.; Women's Business Council of the Philippines,
Inc.; Junior Chambers International Philippines, Inc. - San Juan Chapter; Zonta Club of
Makati Ayala Foundations; and the Consolidated Mansions Condominium Corporation)
be allowed to be formally impleaded as petitioners.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 103
 (b) That respondent FPIC be ordered to submit a certification from the DOE Secretary
that the WOPL is already safe for commercial operation. The certification should take
into consideration the adoption by FPIC of the appropriate leak detection system to be
used in monitoring the entire pipeline's mass input versus mass output. The
certification must also consider the necessity of replacing the pipes with existing
patches and sleeves. In case of failure of respondent FPIC to submit the required
certification from the DOE Secretary within sixty (60) days from notice of the Honorable
Supreme Court's approval of this recommendation, the TEPO must be made
permanent.
(c) That petitioners' prayer for the creation of a special trust fund to answer for similar
contingencies in the future be denied for lack of sufficient basis.
d) That respondent FGC be not held solidarily liable under the TEPO.
(e) That without prejudice to the outcome of the civil and criminal cases filed against
respondents, the individual directors and officers of FPIC and FGC be not held liable in
their individual capacities.
On January 11, 2013, petitioners filed their Motion for Partial Reconsideration19 of the CA's Report
praying that (a) instead of the DOE, the required certification should be issued by the DOST-Metal
Industry Research and Development Center; (b) a trust fund be created to answer for future
contingencies; and ( c) the directors and officers of FPIC and FGC be held accountable.
On January 25, 2013, FPIC filed its Compliance (Re: Department of Energy Certification on the Black Oil
Pipeline)20 and submitted the required DOE Certification21 issued on January 22, 2013 by DOE Secretary
Carlos Jericho L. Petilla (Secretary Petilla). On March 14, 2013, petitioners countered with a
Manifestation with Motion22 asserting that FPIC's certification is not compliant with the CA's
requirement. Hence, petitioners moved that the certification should be disregarded, the 30-day period
be deemed to have lapsed, and FPIC be permanently enjoined from operating the BOPL.
On July 30, 2013, the Court issued a Resolution adopting the recommendation of the CA in its Report and
Recommendation that FPIC be ordered to secure a certification from the DOE Secretary before the WOPL
may resume its operations. The pertinent portion of said Resolution reads:
[FPIC] is hereby ORDERED to submit a certification from the DOE Secretary that the pipeline is already
safe for commercial operation. The certification should take into consideration the adoption by FPIC of
the appropriate leak detection system to be used in monitoring the entire pipeline's mass input versus
mass output. The certification must also consider the necessity of replacing the pipes with existing
patches and sleeves x x x.23
The DOE Secretary is DIRECTED to consult the [DOST] regarding the adoption of the appropriate leak
detection system and the necessity of replacing the pipes with existing patches and sleeves.
On October 2, 2013, petitioners, in a Motion for Reconsideration with Motion for Clarification,
emphasized that the CA found FPIC's tests and maintenance program to be insufficient and inconclusive
to establish the WOPL' s structural integrity for continued commercial operation.24 Furthermore,
petitioners point out that the DOE is biased and incapable of determining the WOPL's structural integrity.
Respondents, for their part, maintain that the DOE has the technical competence and expertise to assess
the structural integrity of the WOPL and to certify the system's safety for commercial
operation.25 Respondents further allege that the DOE is the agency empowered to regulate the
transportation and distribution of petroleum products, and to regulate and monitor downstream oil
industry activities, including "product distribution" through pipelines.26
In compliance with the Court's July 30, 2013 Resolution, the DOE Secretary issued on October 25, 2013 a
Certification,27 attesting that the WOPL is safe to resume commercial operations, subject to monitoring or
inspection requirements, and imposing several conditions that FPIC must comply with. The Certification,
in its entirety, reads:
This is to certify that based on the Pipeline Integrity Management Systems (PIMS) being implemented by
[FPIC] for its [WOPL] facility, the same is safe to resume commercial operations. This certification is being
issued after consultation with the [DOST] and on the basis of the following considerations, to wit:
1. DOE noted the adoption by FPIC of the appropriate leak detection system to be used in
monitoring the pipeline's mass input versus mass output, as well as the other measures of leak
detection and prevention adopted by the latter;
2. DOE further noted that FPIC has already undertaken realignment and reinforcement works on
the current pipeline to remove majority of the patches. FPIC has likewise presented substantial
and adequate documentation showing that the remaining patches and sleeves are safe, and that
the use of such is recognized by the industry and complies with existing standards;
3. DOE finally noted the results of various tests and inspections done on the pipeline as
indicated in the Manifestation submitted by ,the DOE on March 31, 2012, in the civil case
docketed as CA GR SP No. 00008 and entitled West Tower Condominium, et al. [v.] First
Philippine Industrial Corporation, et al.
This certification is being issued subject to the condition that FPIC will submit itself to regular monitoring
and validation by the Oil Industry Management Bureau (OIMB) of the implementation of its PIMS,
particularly on the following: (a) mass or volume input versus mass or volume output loss/gain
accounting; (b) results of borehole monitoring, (c) inspection of the pipeline cathodic protection and (d)
pressure test.
Further, FPIC shall submit itself to any test or inspection that the DOE and DOST may deem appropriate
for purposes of monitoring the operations of the WOPL facility.
The Court is fully cognizant of the WOPL' s value in commerce and the adverse effects of a prolonged
closure thereof. Nevertheless, there is a need to balance the necessity of the immediate reopening of the
WOPL with the more important need to ensure that it is sound for continued operation, since the
substances it carries pose a significant hazard to the surrounding population and to the environment.28 A
cursory review of the most recent oil pipeline tragedies around the world will readily show that extreme
caution should be exercised in the monitoring and operation of these common carriers:
(1) On August 1, 2014, a series of powerful explosions from underground pipeline systems
ripped up the streets of Kaohsiung, Taiwan, killing at least 28 people and injuring 299 more.
Further, 23 ,600, 2,268 and 6,000 households were left without gas, power and water,
respectively, in the 2-3 square kilometer blast area.29
(2) On November 22, 2013, an oil pipeline leaked, caught fire, and exploded in Qingdao,
Shangdao Province in China, killing 55 people and injuring more than a hundred more.30
(3) On September 14, 2011, a fuel pipeline exploded in Kenya's capital city, Nairobi, reducing
bodies to dust and flattening homes. At least 7 5 people died in the explosion, while more than a
hundred people were injured.31
(4) In September 2010, a natural gas pipeline ruptured and set off a fireball, killing eight (8)
people and leveling 3 8 homes in San Bruno, California in the United States.32
(5) On July 30, 2004, a rupture of an underground natural gas pipeline buried six (6) meters in
Ghislenghien, Belgium resulted in 24 deaths and over 120 injuries.33
On April 29 and 30, 2014, the DOE organized a dialogue between said government agencies and the FPIC.
There it was stated that during the dialogue, "the division heads and a high profile team from FPIC, both
from operation and management made presentations and answered questions on pipeline pumping
operation and product delivery, and a detailed explanation of the FPIC PIMS' control measures, condition
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 104
monitoring measures, and emergency measures, as well as its various activities and projects
implemented since 2010 such as pipeline replacement and realignment in Pandacan and Bangkal,
inspection and reinforcement of all patches in the WOPL, inspection and reinforcement of a number of
reported dents in the WOPL, conduct of successful leak tests, and installation of boreholes that are gas-
tested on a weekly basis, and the safety systems that go with the daily pipeline operation and
maintenance and project execution."34
On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE submitted a letter35 recommending
activities and timetable for the resumption of the WOPL operations, to wit:
A. Preparatory to the Test Run
I. FPIC Tasks:
a. Continue submission of monitoring charts, data/reading, accomplishment reports, and project
status for all related activities/works. Respond to comments and prepare for site inspection.
b. Continue gas testing along the right-of-way using the monitoring wells or boreholes. Prepare
for inspection of right-of-way and observation of gas testing activities on monitoring wells and
boreholes.
c. Expound on the selection of borehole location. For example, identify those located in pipeline
bends, bodies of water, residential areas, repaired portions of the pipelines, dents and welded
joints.
d. Continue submitting status report relating to "Project Mojica" (an ongoing pipeline segment
realignment activity undertaken by FPIC to give way to a flood control project of MMDA in the
vicinity of Mojica St. and Pres. Osmeña Highway in Makati City). Prepare for site inspection.
II. Inter-agency undertaking:
a. Conduct onsite inspection of right-of-way
b. Review/check remaining 22 patches that were already inspected and reinforced with
Clockspring sleeves.
i. Determine location of sleeves.
ii. Review of procedures on repair of sleeves.
iii. Random visual inspection of areas easily accessible.
c. Cathodic protection's onsite inspection on rectifier to check readings
i. Old readings
ii. Current Readings
iii. Segment covered
iv. Criteria for prioritization for corrective action
d. Observe and witness the running/operation of the cleaning pig.
e. Check and validate all calibration certificate of instruments
i. Instrument verification and calibration.
B. Actual Test Run (to be undertaken both by FPIC and inter-agency)
a. Perform Cleaning Pig Run
i. Witness launching and receiving of the cleaning pig.
ii. Handling of the residuals after cleaning.
b. Demonstrate Various Pressure Tests (already being conducted by FPIC)
i. Blocked-in pressure test (Leak Test, not in operation)
ii. In-operation (hourly reading)
c. Continue Current Gas Monitoring (boreholes)
i. Ocular inspection of selected areas
d. Demonstrate mass or volume balance computation during WOPL test run (already being
implemented in the BOPL)
i. 30 days baseline data generation
ii. 30 days computational analysis and monitoring
C. Commissioning or Return to Commercial Operation
I. FPIC Tasks:
a. Continue implementation of the PIMS. Review recommendations from DOE.
b. Continue monthly reporting of operations and maintenance activities with DOE.
c. Continue reporting and coordination with DOE and other government agencies for
implementation of projects.36
Secretary Petilla also recounted to the Court in his August 5, 2014 letter that the DOE, together with the
DPWH and the Metropolitan Manila Development Authority (MMDA), observed the different milestones
of the realignment project being undertaken by FPIC in support of the MMDA Flood Control Project and
stated that the new line segment as laid was coated with corrosion protection prior to the backfilling of
the excavated portion.
On February 3, 2015, the Court required the parties to submit their comment on Sec. Petilla's letter
within ten (10) days from receipt of the Resolution. On various dates, respondents First Gen Corporation,
FPIC, and petitioner West Tower filed their respective comments37 in compliance with the Court's
resolution. The intervenors were unable to comply with the Court's directive; hence, they are deemed to
have waived their right to file their respective comments. The Issues
Having received the October 25, 2013 Certification and the August 5, 2014 Letter from the DOE on the
state of the WOPL, as well as the parties' comments thereon, the following issues defined by the parties
during the March 21, 2012 preliminary conference are now ripe for adjudication:
1. Whether petitioner West Tower Corp. has the legal capacity to represent the other
petitioners and whether the other petitioners, apart from the residents of West Tower and
Barangay Bangkal, are real parties-in-interest;
2. Whether a Permanent Environmental Protection Order should be issued to direct the
respondents to perform or to desist from performing acts in order to protect, preserve, and
rehabilitate the affected environment;
3. Whether a special trust fund should be opened by respondents to answer for future similar
contingencies; and
4. Whether FGC and the directors and officers of respondents FPIC and FGC may be held liable
under the environmental protection order.38
The Court's Ruling
We adopt, with modifications, the recommendations of the CA and discuss the foregoing issues in
seriatim.
I.
Petitioners as Real Parties-in-Interest
On the procedural aspect, We agree with the CA that petitioners who are affected residents of West
Tower and Barangay Bangkal have the requisite concern to be real parties-in-interest to pursue the
instant petition.
Residents of West Tower and Barangay Bangkal
As defined, a real party-in-interest is the party who stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit.39 Generally, every action must be prosecuted or
defended in the name of the real parties-in-interest.40 In other words, the action must be brought by the
person who, by substantive law, possesses the right sought to be enforced.41 Alternatively, one who has
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 105
no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff-in-action for it
is jurisprudentially ordained that every action must be prosecuted or defended in the name of the real
party-in-interest.42
In the case at bar, there can be no quibble that the oil leak from the WOPL affected all the condominium
unit owners and residents of West Tower as, in fact, all had to evacuate their units at the wee hours in
the morning of July 23, 2010, when the condominium's electrical power was shut down. Until now, the
unit owners and residents of West Tower could still not return to their condominium units. Thus, there is
no gainsaying that the residents of West Tower are real parties-in-interest.
There can also be no denying that West Tower Corp. represents the common interest of its unit owners
and residents, and has the legal standing to file and pursue the instant petition. While a condominium
corporation has limited powers under RA 4 726, otherwise known as The Condominium Act,43 it is
empowered to pursue actions in behalf of its members. In the instant case, the condominium
corporation .is the management body of West Tower and deals with everything that may affect some or
all of the condominium unit owners or users.
It is of no moment that only five residents of West Tower signed their acquiescence to the filing of the
petition for the issuance of the Writ of Kalikasan, as the merits of such petition is, as aptly put by the CA,
not measured by the number of persons who signified their assent thereto, but on the existence of a
prima facie case of a massive environmental disaster.
Moreover, the fact that no board resolution was submitted by West Tower Corp. authorizing Manuel Dy
Chuaunsu, Jr. to sign the Verification and Certification of Non-forum Shopping is irrelevant. The records
show that petitioners submitted a notarized Secretary's Certificate44 attesting that the authority of
Chuaunsu to represent the condominium corporation in filing the petition is from the resolution of the
total membership of West Tower Corp. issued during their November 9, 2010 meeting with the requisite
quorum. It is, thus, clear that it was not the Board of West Tower Corp. which granted Chuaunsu the
authority but the full membership of the condominium corporation itself.
As to the residents of Barangay Bangkal, they are similarly situated with the unit owners and residents of
West Tower and are real parties-in-interest to the instant case, i.e., if they so wish to join the petitioners.
Organizations that indicated their intention to join the petition
and submitted proof of juridical personality
Anent the propriety of including the Catholic Bishops' Conference of the Philippines, Kilusang
Makabansang Ekonomiya, Inc., Women's Business Council of the Philippines, Inc., Junior Chambers
International Philippines, Inc. - San Juan Chapter, Zonta Club of Makati Ayala Foundations, and the
Consolidated Mansions Condominium Corporation, as petitioners in the case, the Court already granted
their intervention in the present controversy in the adverted July 30, 2013 Resolution.
This is so considering that the filing of a petition for the issuance of a writ of kalikasan under Sec. 1, Rule
745 of the Rules of Procedure for Environmental Cases does not require that a petitioner be directly
affected by an environmental disaster. The rule clearly allows juridical persons to file the petition on
behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation.
Thus, as parties to the case, they are entitled to be furnished copies of all the submissions to the Court,
including the periodic reports of FPIC and the results of the evaluations and tests conducted on the
WOPL.
Having disposed of the procedural issue, We proceed to the bone of contention in the pending motions.
Suffice it to state in the outset that as regards the substantive issues presented, the Court, likewise,
concurs with the other recommendations of the CA, with a few modifications.
II.
Propriety of Converting the TEPO to PEPO or its Lifting in light of the
DOE Certification of the WOPL's Commercial Viability
To recall, petitioners' persistent plea is for the conversion of the November 19, 2010 TEPO into a
Permanent Environmental Protection Order (PEPO) pursuant to Sec. 3,46 Rule 5 of the Rules of Procedure
for Environmental Cases. For its part, respondent FPIC asserts that regular testing, as well as the
measures that are already in place, will sufficiently address any concern of oil leaks from the WOPL.
With respect to leak detection, FPIC claims that it has in place the following systems: (a) regular cleaning
scraper runs, which are done quarterly; (b) pipeline integrity gauge (PIG) tests/Intelligent PIG, now
known as in-line inspections (ILI), which is done every five years; (c) pressure monitoring valves; and ( d)
24-hour patrols. Additionally, FPIC asserted that it also undertook the following: (a) monitoring of wells
and borehole testing/vapor tests; (b) leak tightness test, also known as segment pressure test; (c)
pressure-controlled test; (d) inspection and reinforcement of patches; (e) inspection and reinforcement
of dents; and (f) Pandacan segment replacement.47 Furthermore, in August 2010, with the oil leak
hogging the headlines, FPIC hired NDT Middle East FZE (NDT) to conduct ILI inspections through magnetic
flux leakage (MFL) and ultrasonic tests to, respectively, detect wall thinning of the pipeline and check it
for cracks.
The CA, however, observed that all of these tests and measures are inconclusive and insufficient for
purposes of leak detection and pipeline integrity maintenance. Hence, considering the necessary caution
and level of assurance required to ensure that the WOPL system is free from leaks and is safe for
commercial operation, the CA recommended that FPIC obtain from the DOE a certification that the WOPL
is already safe for commercial operation. This certification, according to the CA, was to be issued with
due consideration of the adoption by FPIC of the appropriate leak detection systems to monitor
sufficiently the entire WOPL and the need to replace portions of the pipes with existing patches and
sleeves. Sans the required certification, use of the WOPL shall remain abated.
The Court found this recommendation of the appellate court proper. Hence, We required FPIC to obtain
the adverted DOE Certification in Our July 30, 2013 Resolution. We deemed it proper to require said
certification from the DOE considering that the core issue of this case requires the specialized knowledge
and special expertise of the DOE and various other administrative agencies. On October 25, 2013, the
DOE submitted the certification pursuant to the July 30, 2013 Resolution of the Court. Later, however, on
August 5, 2014, DOE Secretary Carlos Jericho I. Petilla submitted a letter recommending certain activities
and the timetable for the resumption of the WOPL operations after conducting a dialogue between the
concerned government agencies and FPIC.
After a perusal of the recommendations of the DOE and the submissions of the parties, the Court adopts
the activities and measures prescribed in the DOE letter dated August 5, 2014 to be complied with by
FPIC as conditions for the resumption of the commercial operations of the WOPL. The DOE should,
therefore, proceed with the implementation of the tests proposed in the said August 5, 2014 letter.
Thereafter, if it is satisfied that the results warrant the immediate reopening of the WOPL, the DOE shall
issue an order allowing FPIC to resume the operation of the WOPL. On the other hand, should the probe
result in a finding that the pipeline is no longer safe for continued use and that its condition is
irremediable, or that it already exceeded its serviceable life, among others, the closure of the WOPL may
be ordered.
The DOE is specially equipped to consider FPIC's proper implementation and compliance with its PIMS
and to evaluate the result of the various tests conducted on the pipeline. The DOE is empowered by Sec.
12(b)(l), RA 7638 to formulate and implement policies for the efficient and economical "distribution,
transportation, and storage of petroleum, coal, natural gas."48 Thus, it cannot be gainsaid that the DOE
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 106
possesses technical knowledge and special expertise with respect to practices in the transportation of oil
through pipelines.
Moreover, it is notable that the DOE did not only limit itself to the knowledge and proficiency available
within its offices, it has also rallied around the assistance of pertinent bureaus of the other administrative
agencies: the ITDI49 of the DOST, which is mandated to undertake technical services including standards,
analytical and calibration services; the MIRDC,50 also of the DOST, which is the sole government entity
directly supporting the metals and engineering industry;51 the EMB52 of the DENR, the agency mandated
to implement, among others, RA 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act
of 1990) and RA 9275 (Philippine Clean Water Act of 2004); and the BOD of the DPWH, which is
mandated to conduct, supervise, and review the technical design aspects of projects of government
agencies.53
The specialized knowledge and expertise of the foregoing agencies must, therefore, be availed of to
arrive at a judicious decision on the propriety of allowing the immediate resumption of the WOPL's
operation. In a host of cases, this Court held that when the adjudication of a controversy requires the
resolution of issues within the expertise of an administrative body, such issues must be investigated and
resolved by the administrative body equipped with the specialized knowledge and the technical
expertise.54 Hence, the courts, although they may have jurisdiction and power to decide cases, can utilize
the findings and recommendations of the administrative agency on questions that demand "the exercise
of sound administrative discretion requiring the special knowledge, experience, and services of the
administrative tribunal to determine technical and intricate matters of fact."55
Justice Leonen, in his dissent, is of the view that the petition should be denied and the TEPO immediately
lifted in light of the DOE's issuance of a certification attesting to the safety of the WOPL for continued
commercial operations, thereby rendering the instant petition moot and academic, seeking, as it does,
the checking of the pipeline's structural integrity. According to his dissent, the writ of kalikasan issued by
the Court has already served its functions and, therefore, is functus officio. Moreover, he argues that
directing the DOE and FPIC to repeat their previous procedures is tantamount to doubting the agency's
performance of its statutorily-mandated tasks, over which they have the necessary expertise, and implies
that said DOE certification is improper, a breach, allegedly, of the principle of separation of powers.
He also contends that the majority ordered the repetition of the procedures and tests already conducted
on the WOPL because of the fear and uncertainty on its safeness despite the finding of the DOE in favor
of its reopening, taking into consideration the occurrence of numerous pipeline incidents worldwide. The
dissent argues that the precautionary principle should not be so strictly applied as to unjustifiably deprive
the public of the benefits of the activity to be inhibited, and to unduly create other risks.
The dissent's contentions that the case is already moot and academic, that the writ of kalikasan has
already served its function, and that the delay in the lifting of the TEPO may do more harm than good are
anchored on the mistaken premise that the precautionary principle was applied in order to justify the
order to the DOE and the FPIC for the conduct of the various tests anew. The following reasons easily
debunk these arguments:
1. The precautionary principle is not applicable to the instant case;
2. The DOE certification is not an absolute attestation as to the WOPL's structural integrity and
in fact imposes several conditions for FPIC's compliance;
3. The DOE itself, in consultation with FPIC and the other concerned agencies, proposed the
activities to be conducted preparatory to the reopening of the pipeline; and
4 . There are no conclusive findings yet on the WOPL's structural integrity.
Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases, on the
Precautionary Principle, provides that "[ w ]hen there is lack of full scientific certainty in establishing a
causal link between human activity and environmental effect, the court shall apply the precautionary
principle in resolving the case before it."
According to the dissent, the directive for the repetition of the tests is based on speculations, justified by
the application of said principle. This, however, is not the case. Nowhere did We apply the precautionary
principle in deciding the issue on the WOPL's structural integrity.
The precautionary principle only applies when the link between the cause, that is the human activity
sought to be inhibited, and the effect, that is the damage to the environment, cannot be established with
full scientific certainty. Here, however, such absence of a link is not an issue. Detecting the existence of a
leak or the presence of defects in the WOPL, which is the issue in the case at bar, is different from
determining whether the spillage of hazardous materials into the surroundings will cause environmental
damage or will harm human health or that of other organisms. As a matter of fact, the petroleum leak
and the harm that it caused to the environment and to the residents of the affected areas is not even
questioned by FPIC.
It must be stressed that what is in issue in the instant petition is the WOPL's compliance with pipeline
structure standards so as to make it fit for its purpose, a question of fact that is to be determined on the
basis of the evidence presented by the parties on the WOPL's actual state. Hence, Our consideration of
the numerous findings and recommendations of the CA, the DOE, and the amici curiae on the WOPL' s
present structure, and not the cited pipeline incidents as the dissent propounds.
Consider also the fact that it is the DOE itself that imposed several conditions upon FPIC for the
resumption of the operations of the WOPL. This, coupled with the submission by the DOE of its proposed
activities and timetable, is a clear and unequivocal message coming from the DOE that the WOPL's
soundness for resumption of and continued commercial operations is not yet fully determined. And it is
only after an extensive determination by the DOE of the pipeline's actual physical state through its
proposed activities, and not merely through a short-form integrity audit,56 that the factual issue on the
WOPL's viability can be settled. The issue, therefore, on the pipeline's structural integrity has not yet
been rendered moot and remains to be subject to this Court's resolution. Consequently, We cannot say
that the DOE's issuance of the certification adverted to equates to the writ of kalikasan being functus
officio at this point.
The dissent is correct in emphasizing that We defer to the findings of fact of administrative agencies
considering their specialized knowledge in their field. And We, as a matter of fact, acceded to the DOE' s
conclusions on the necessity of the conduct of the various activities and tests enumerated in Sec. Petilla's
letter to this Court dated August 5, 2014. Hence, Our directive for the DOE to immediately commence
the activities enumerated in said Letter, to determine the pipeline's reliability, and to order its reopening
should the DOE find that such is proper.
The dissent also loses sight of the fact that the petition not only seeks the checking of the WOPL's
structural integrity, but also prays for the rehabilitation of the areas affected by the leak, the creation of
a special trust fund, the imposition of liability upon the directors of FPIC, among others. These issues,
undoubtedly, are matters that are not addressed by the DOE certification alone. Furthermore, these are
issues that no longer relate to the WOPL' s structure but to its maintenance and operations, as well as to
the residues of the incident. It will, thus, be improper for Us to simply dismiss the petition on the basis
solely of the alleged resolution of only one of several issues, which purportedly renders the issue on the
WOPL' s soundness moot, without disposing of the other issues presented.
Lastly, any delay in the reopening of the WOPL, if said delay is for the purpose of making sure that the
pipeline is commercially viable, is better than hastily allowing its reopening without an extensive check
on its structural integrity when experience shows that there were and may still be flaws in the pipeline.
Even the DOE, the agency tasked to oversee the supply and distribution of petroleum in the country, is
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 107
well aware of this and even recommended the checking of the patched portions of the pipeline, among
others. In this regard, the Court deems it best to take the necessary safeguards, which are not similar to
applying the precautionary principle as previously explained, in order to prevent a similar incident from
happening in the future.
III.
Propriety of the Creation of a Special Trust Fund
Anent petitioners' prayer for the creation of a special trust fund, We note that under Sec. 1, Rule 5 of the
Rules of Procedure for Environmental Cases, a trust fund is limited solely for the purpose of rehabilitating
or restoring the environment. Said proviso pertinently provides:
SEC. 1. Reliefs in a citizen suit. - If warranted, the court may grant to the plaintiff proper reliefs which
shall include the protection, preservation or rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the environment, the costs of which shall be borne by the
violator, or to contribute to a special trust fund for that purpose subject to the control of the court.
(emphasis supplied)
Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for Environmental Cases expressly prohibits
the grant of damages to petitioners in a petition for the issuance of a writ of kalikasan, viz:
Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the
court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
xxxx
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the environment, except the award of damages
to individual petitioners.
A reading of the petition and the motion for partial reconsideration readily reveals that the prayer is for
the creation of a trust fund for similar future contingencies. This is clearly outside the limited purpose of
a special trust fund under the Rules of Procedure for Environmental Cases, which is to rehabilitate or
restore the environment that has presumably already suffered. Hence, the Court affirms with
concurrence the observation of the appellate court that the prayer is but a claim for damages, which is
prohibited by the Rules of Procedure for Environmental Cases. As such, the Court is of the considered
view that the creation of a special trust fund is misplaced. The present ruling on petitioners' prayer for
the creation of a special trust fund in the instant recourse, however, is without prejudice to the
judgment/s that may be rendered in the civil and/or criminal cases filed by petitioners arising from the
same incident if the payment of damages is found warranted.
IV.
Liability of FPIC, FGC and their respective Directors and Officers
On the last issue of the liability of FPIC, FGC and their respective directors and officers, the CA found FGC
not liable under the TEPO and, without prejudice to the outcome of the civil case (Civil Case No. 11-256,
RTC, Branch 58 in Makati City) and criminal complaint (Complaint-Affidavit for Reckless Imprudence,
Office of the Provincial Prosecutor of Makati City) filed against them, the individual directors and officers
of FPIC and FGC are not liable in their individual capacities.
The Court will refrain from ruling on the finding of the CA that the individual directors and officers of FPIC
and FGC are not liable due to the explicit rule in the Rules of Procedure for Environmental cases that in a
petition for a writ of kalikasan, the Court cannot grant the award of damages to individual petitioners
under Rule 7, Sec. 15(e) of the Rules of Procedure for Environmental Cases. As duly noted by the CA, the
civil case and criminal complaint filed by petitioners against respondents are the proper proceedings to
ventilate and determine the individual liability of respondents, if any, on their exercise of corporate
powers and the management of FPIC relative to the dire environmental impact of the dumping of
petroleum products stemming from the leak in the WOPL in Barangay Bangkal, Makati City.
Hence, the Court will not rule on the alleged liability on the part of the FPIC and FGC officials which can,
however, be properly resolved in the civil and criminal cases now pending against them.
Other Matters
The CA's resolution on petitioners' September 9, 2011 Manifestation (Re: Current Developments) with
Omnibus Motion on the remediation plan in Barangay Bangkal by directing the Inter-Agency Committee
on Environmental Health to submit its evaluation of the said plan prepared by CH2M Philippines, Inc., for
FPIC to strictly comply with the stipulations embodied in the permits issued by the DENR, and to get a
certification from the DENR of its compliance thereto is well taken. DENR is the government agency
tasked to implement the state policy of "maintaining a sound ecological balance and protecting and
enhancing the quality of the environment"57 and to "promulgate rules and regulations for the control of
water, air, and land pollution."58 It is indubitable that the DENR has jurisdiction in overseeing and
supervising the environmental remediation of Barangay Bangkal, which is adversely affected by the leak
in the WOPL in 2010.
With regard to petitioners' March 29, 2012 Supplemental Manifestation about a recent possible leak in
the pipeline, the CA appropriately found no additional leak. However, due to the devastating effect on
the environs in Barangay Bangkal due to the 2010 leak, the Court finds it fitting that the pipeline be
closely and regularly monitored to obviate another catastrophic event which will prejudice the health of
the affected people, and to preserve and protect the environment not only for the present but also for
the future generations to come.
Petitioner's January 10, 2013 Motion for Partial Recommendation of the CA' s Report need not be
discussed and given consideration. As the CA' s Report contains but the appellate court's
recommendation on how the issues should be resolved, and not the adjudication by this Court, there is
nothing for the appellate court to reconsider.
As to petitioner's October 2, 2013 Motion for Reconsideration with Motion for Clarification, the matters
contained therein have been considered in the foregoing discussion of the primary issues of this case.
With all these, We need not belabor the other arguments raised by the parties.
IN VIEW OF THE FOREGOING, the Motion for Partial Reconsideration is hereby DENIED. The Motion for
Reconsideration with Motion for Clarification is PARTLY GRANTED. The Court of Appeals'
recommendations, embodied in its December 21, 2012 Report and Recommendation, are hereby
ADOPTED with the following MODIFICATIONS:
I. The Department of Energy (DOE) is hereby ORDERED to oversee the strict implementation of the
following activities:
A. Preparatory to the Test Run of the entire stretch of the WOPL:
1) FPIC shall perform the following:
a. Continue submission of monitoring charts, data/reading, accomplishment
reports, and project status for all related activities/works. Respond to
comments and prepare for site inspection.
b. Continue gas testing along the right-of-way using the monitoring wells or
boreholes. Prepare for inspection of right-of-way and observation of gas
testing activities on monitoring wells and boreholes.
c. Explain the process of the selection of borehole location and identify those
located in pipeline bends, bodies of water, highways, residential areas,
repaired portions of the pipelines, dents and welded joints, as well other
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 108
 notable factors, circumstances, or exposure to stresses. d. Set up additional
boreholes and monitoring wells sufficient to cover the entire stretch of the
WOPL, the number and location of which shall be determined by the DOE.
e. Continue submitting status report to the concerned government agency/ies
relating to "Project Mojica," or the on-going pipeline segment realignment
activity being undertaken by FPIC to give way to a flood control project of the
MMDA in the vicinity of Mojica St. and Pres. Osmeña Highway, and prepare for
site inspection.
2) The DOE shall perform the following undertakings:
a. Conduct onsite inspection of the pipeline right-of-way, the area around the
WOPL and the equipment installed underground or aboveground.
b. Review and check the condition of the 22 patches reinforced with
Clockspring sleeves by performing the following:
i. Determine the location of the sleeves
ii. Review the procedure for the repair of the sleeves
iii. Inspect the areas where the affected portions of the WOPL are
located and which are easily accessible.
c. Inspect onsite the cathodic protection rectifier to check the following:
i. old and current readings
ii. the segment/s covered by the cathodic protection system
iii. review the criteria for prioritization of corrective action.
d. Observe and witness the running/operation of the intelligent and cleaning
pigs.
e. Check and calibrate the instruments that will be used for the actual tests on
the pipeline, and validate the calibration certificates of these instruments.
B. During the Actual Test Run:
1) FPIC shall perform the following:
a. Perform Cleaning Pig run and witness the launching and receiving of the
intelligent and cleaning pigs.
b. Demonstrate and observe the various pressure and leakage tests, including
the following:
i. "Blocked-in pressure test" or the pressure test conducted while all
the WOPL's openings are blocked or closed off; and
ii. "In-operation test" or the hourly monitoring of pressure rating after
the pipeline is filled with dyed water and pressurized at a specified
rate.
c. Continue, inspect, and oversee the current gas monitoring system, or the
monitoring of gas flow from the boreholes and monitoring wells of the WOPL.
d. Check the mass or volume balance computation during WOPL test run by
conducting:
i. 30 days baseline data generation
ii. Computational analysis and monitoring of the data generated.
II. After FPIC has undertaken the activities prescribed in the preceding paragraph 1, the DOE shall
determine if the activities and the results of the test run warrant the re-opening of the WOPL. In the
event that the DOE is satisfied that the WOPL is safe for continued commercial operations, it shall issue
an order allowing FPIC to resume the operations of the pipeline.
III. Once the WOPL is re-opened, the DOE shall see to it that FPIC strictly complies with the following
directives:
a. Continue implementation of its Pipeline Integrity Management System (PIMS), as reviewed by
the DOE, which shall include, but shall not be limited to:
1. the conduct of daily patrols on the entire stretch of the WOPL, every two hours;
2. continued close monitoring of all the boreholes and monitoring wells of the WOPL
pipeline;
3. regular periodic testing and maintenance based on its PIMS; and
4. the auditing of the pipeline's mass input versus mass output;
b. submit to the DOE, within ten (10) days of each succeeding month, monthly reports on its
compliance with the above directives and any other conditions that the DOE may impose, the
results of the monitoring, tests, and audit, as well as any and all activities undertaken on the
WOPL or in connection with its operation. The concerned government agencies, namely: the
Industrial Technology Development Institute (ITDI) and the Metals Industry Research and
Development Center (MIRDC), both under the Department of Science and Technology (DOST),
the Environmental Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), the Bureau of Design (BOD) of the Department of Public Works and Highways
(DPWH), the University of the Philippines - National Institute of Geological Science (UP-NI GS)
and University of the Philippines - Institute of Civil Engineering (UP-ICE), the petitioners,
intervenors and this Court shall likewise be furnished by FPIC with the monthly reports. This
shall include, but shall not be limited to: realignment, repairs, and maintenance works; and
c. continue coordination with the concerned government agencies for the implementation of its
projects.1âwphi1
IV. Respondent FPIC is also DIRECTED to undertake and continue the remediation, rehabilitation and
restoration of the affected Barangay Bangkal environment until full restoration of the affected area to its
condition prior to the leakage is achieved. For this purpose, respondent FPIC must strictly comply with
the measures, directives and permits issued by the DENR for its remediation activities in Barangay
Bangkal, including but not limited to, the Wastewater Discharge Permit and Permit to Operate. The DENR
has the authority to oversee and supervise the aforesaid activities on said affected barangay.
V. The Inter-Agency Committee on Environmental Health under the City Government of Makati shall
SUBMIT to the DENR its evaluation of the Remediation Plan prepared by CH2M Hill Philippines, Inc.
within thirty (30) days from receipt hereof.
VI. Petitioners' prayer for the creation of a special trust fund to answer for similar contingencies in the
future is DENIED.
SO ORDERED.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 109
G.R. No. 181796
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE DIRECTOR/HEAD OF THE CRIMINAL
INVESTIGATION AND DETECTION GROUP (CIDG), PHILIPPINE NATIONAL POLICE (PNP), Petitioner
vs.
REGINA N. CA YANAN AND SPOl ROLANDO V. PASCUA, Respondents
DECISION
BERSAMIN, J.:
Substantial evidence is sufficient in proceedings involving petitions for the writ of amparo. The
respondent must show in the return on the writ of amparo the observance of extraordinary diligence.
Once an enforced disappearance is established by substantial evidence, the relevant State agencies
should be tasked to assiduously investigate and determine the disappearance, and, if warranted, to bring
to the bar of justice whoever may be responsible for the disappearance.
The Case
The Government, represented by the Director/Head of the Criminal Investigation and Detection Group
(CIDG) of the Philippine National Police (PNP), appeals the resolution issued on December 13, 2007 by
the Regional Trial Court, Branch 91, in Quezon City (RTC) maintaining the writ of amparo; ordering the
CIDG to continue its investigation into the disappearance of Pablo A. Cayanan (Pablo); directing
respondent SPO1 Rolando V. Pascua (Pascua) to appear before the proper forum; making the temporary
protection order permanent; and upholding the enrollment of Regina N. Cayanan (Regina) in the Witness
Protection Program of the Department of Justice.1
Also under appeal is the resolution of January 31, 2008, whereby the RTC denied the petitioner's motion
for reconsideration.2
Antecedents
On August 16, 2007, Regina filed a petition for habeas corpus in the R TC alleging that Pablo, her
husband, was being illegally detained by the Director/Head of the CIDG;3 that on July 9, 2007 a group of
armed men identifying themselves as operatives of the CIDG, led by Pascua, had forcibly arrested Pablo
on Magalang Street, East A venue, Diliman, Quezon City without any warrant of arrest, and had then
detained him at the office of the CIDG in Camp Crame, Quezon City; that Pablo had not been found or
heard from since then; and that despite repeated demands by her and her relatives, the CIDG operatives
had not produced the body of Pablo.4
On August 21, 2007, the CIDG received the petition for habeas corpus brought in behalf of Pablo. On
August 28, 2007, the CIDG filed its return on the writ wherein it denied having the custody of Pablo or
having detained him. It prayed for the dismissal of the petition for habeas corpus.5
On September 7, 2007, the R TC directed the parties to submit their respective memoranda.6
On October 24, 2007, Regina, albeit reiterating the allegations of the petition for habeas
corpus, amended her petition to now seek instead the issuance of a writ of amparo.7
On October 24, 2007, the RTC issued the writ of amparo.8
On November 5, 2007, the CIDG and Pascua submitted their respective comments vis-a-vis the writ
of amparo.9
On November 5, 2007, Regina moved ex parte for the issuance of a temporary protection order and
witness protection order. The RTC granted her motion on November 6, 2007.10
Pascua did not appear in the proceedings in the RTC. He tendered explanations for his non-appearance,
specifically: for the initial hearing, he was then suffering acute gastroenteritis; and for the later hearings,
he wanted to protect his identity as part of his defenses in the criminal case of kidnapping brought
against him in the Department of Justice.11
On December 13, 2007, the RTC issued the first assailed resolution,12 disposing thusly:
Foregoing premises considered, judgment is hereby rendered as follows, to wit:
1) The Court hereby maintains the Writ of Amparo earlier issued;
2) For respondent CIDG Chief/Director to continue the investigation it earlier conducted;
3) For SP02 Rolando V. Pascua to appear to the proper forum;
4) The Temporary Protection Order is hereby made permanent;
5) And the Granting of the Witness Protection Program availed of by the petitioner is hereby retained
until the finality of the case/cases related thereto.
It is so ordered.13
The CIDG forthwith moved for reconsideration;14 however, the RTC denied the motion for
reconsideration on January 31, 2008 through the second assailed resolution.15
Hence, the CIDG has directly appealed to the Court.
Issues
The CIDG urges the following grounds for review and reversal of the assailed resolutions, namely:16
I.
The trial court gravely erred in granting the writ of amparo, there being no sufficient evidence to support
the same.
A.
The Rule on the writ of amparo did not change the rules on burden of proof.
B.
A mere accusation accompanied by inherently hearsay evidence is not sufficient ground for the court to
issue a writ of amparo or allow its continued effectivity.
II.
Petitioner discharged its functions as required in its mandate and exhausted all remedies available under
the law.
On his part, Pascua submits in his comment to the petition that:17
I.
Complainant failed to establish by the required burden of proof that respondent SP02 Pascua, in his
personal capacity or as police officer, caused the "forced disappearance" of Pablo Cayanan within the
ambit protected by the rule on the writ of amparo.
A.
Following Mexico's Amparo, it is [an] essential requirement for the supposed victim to establish where
he is being held. Moreover, Philippine rule on amparo specifically covers "public official or employee, or
of a private individual or entity'', which evidently precludes a government institution/instrumentality,
such as CIDG-PNP.
B.
Enforced or forced disappearance means that it must be established that agents of the state perpetrated
its commission.
II.
Respondent-Accused Pascua is entitled to presumption of innocence, which cannot be diminished by the
rule on writ of amparo.
The issues for consideration and resolution in this appeal are follows: (1) whether or not sufficient
evidence supported the grant of the writ of amparo by the RTC; (2) whether or not the CIDG already
discharged its duty as required by the Rule on the Writ of Amparo; (3) whether or not the petition for the
issuance of the writ of amparo was defective; and (4) whether or not the issuance of the writ
of amparo by the RTC impaired Pascua's right to the presumption of his innocence.
Ruling of the Court
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 110
The appeal lacks merit.
We have to indicate as a preliminary observation that although this mode of appeal is usually limited to
the determination of questions of law, Section 19 of the Rule on the Writ of Amparo explicitly allows the
review by the Court of questions of fact or of law or of both. Accordingly, we shall also determine herein
the sufficiency of the evidence presented in support of the petition for the issuance of the writ
of amparo.
I.
Substantial evidence existed to warrant
the issuance of the writ of amparo
Section 1 of the Rule on the Writ of Amparo defines the nature of the writ of amparo as a remedy against
enforced disappearances or threats to life, liberty and personal security, viz.:
Section 1. Petition. - The petition for a writ of amparo is a remedy available to any person whose right to
life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
Section 17 of the Rule on the Writ of Amparo specifies the degree of proof required from the petitioner
as a respondent named in the petition for the writ of amparo, to wit:
Section 1 7. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims
by substantial evidence.
xxxx
Section 18 of the Rule on the Writ of Amparo requires substantial evidence to establish the allegations of
the petition for the writ of amparo and to warrant granting the privilege of the writ of amparo, to wit:
Section 18. Judgment. - x x x If the allegations in the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise,
the privilege shall be denied.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.18 This standard was applied in Secretary of National Defense v. Manalo,19 the first ruling by
the Court relating to the remedy of the writ of amparo.
In Razon, Jr. v. Tagitis,20 a case involving the propriety of the trial court's issuance of the writ
of amparo, the Court expounded on the need for substantial evidence to support the petition for the writ
of amparo, viz.:
We see no merit in the petitioners' submitted position that no sufficient evidence exists to support the
conclusion that the Kasim evidence unequivocally points to some government complicity in the
disappearance x x x. We painstakingly ruled:
To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we
should at least take a close look at the available evidence to determine the correct import of every piece
of evidence - even of those usually considered inadmissible under the general rules of evidence - taking
into account the surrounding circumstances and the test of reason that we can use as basic minimum
admissibility requirement x x x.
xxxx
Likewise, we see no merit in the petitioners' claim that the Kasim evidence does not amount to
substantial evidence required by the Rule on the Writ of Amparo. This is not a new issue; we extensively
and thoroughly considered and resolved it in our December 3, 2009 Decision. At this point, we need not
go into another full discussion of the justifications supporting an evidentiary standard specific to the Writ
of Amparo. Suffice it to say that we continue to adhere to the substantial evidence rule that the Rule on
the Writ of Amparo requires, with some adjustments for flexibility in considering the evidence presented.
When we ruled that hearsay evidence (usually considered inadmissible under the general rules of
evidence) may be admitted as the circumstances of the case may require, we did not thereby dispense
with the substantial evidence rule; we merely relaxed the evidentiary rule on the admissibility of
evidence, maintaining all the time the standards of reason and relevance that underlie every evidentiary
situation. This, we did, by considering the totality of the obtaining situation and the consistency of the
hearsay evidence with the other available evidence in the case.
Thus viewed, common threads that plainly run in the three cited cases are applicable to the present case.
There is the evidence of ineffective investigation in Manalo and Velasquez Rodriguez, while in all three
was the recognition that the burden of proof must be lowered or relaxed (either through the use of
circumstantial or indirect evidence or even by logical inference); the requirement for direct evidence to
establish that an enforced disappearance occurred -- as the petitioners effectively suggest -- would
render it extremely difficult, if not impossible, to prove that an individual has been made to disappear. In
these lights, we emphasized in our December 3, 2009 Decision that while the need for substantial
evidence remains the rule, flexibility must be observed where appropriate (as the Courts in Velasquez
Rodriguez and Timurtas did) for the protection of the precious rights to life, liberty and security. This
flexibility, we noted, requires that 'we should take a close look at the available evidence to determine the
correct import of every piece of evidence - even of those usually considered inadmissible under the
general rules of evidence - taking into account the surrounding circumstances and the test of reason that
we can use as basic minimum admissibility requirement.' From these perspectives, we see no error that
we should rectify or reconsider.21 (Emphases supplied)
The CIDG contends that Regina did not discharge her burden of proof because she did not present
substantial evidence to support her petition for the issuance of the writ of amparo.
The contention of the CIDG is without merit.
We declare that Regina fully discharged her duty to present substantial evidence in support of her
petition for the issuance of the writ of amparo.
Firstly, the sinumpaang salaysay executed on July 30, 2007 before Special Investigator Cesar S. Rivera of
the Anti-Kidnapping, Hijacking and Armed Robbery Division of the National Bureau of Investigation (NBI),
whereby affiant Ronaldo F. Perez (Perez), an eyewitness no less, detailed the events of the abduction of
Pablo in mid-afternoon of July 9, 2007, was consistent and credible in itself. Perez's statements therein
definitely recounted how the abductors perpetrated the abduction by blocking the path of Pablo's Isuzu
Sportivo (plate numbered ZCW 283) with their whitecolored Kia 2-door Sedan bearing plate numbered
YBA 255 and their greencolored Toyota Lite Ace with plate numbered "___-488." Perez identified one of
the perpetrators of the abduction by name ("SP02 Rolando Pascua") and supplied another identifying
circumstance for Pascua ("Siya po nagpapagawa din sa akin ng araw na yon ng International Drivers
License, police po siya, dating naka-destino sa Firearms and Explosives Division (FED), Camp Crame"). He
thereby revealed having last seen Pablo on the day of the abduction as being inside the Isuzu Sportivo
that the abductors parked in front of the main office of the CIDG in Camp Crame.
The relevant portions of the sinumpaang salaysay of Perez are quoted for ready reference as follows:
4. T. Sino ba si PABLO CAYANAN?
S. Kliyente ko po si PABLO, nagpapagawa ng mga rehistro ng mga sasakyan. May pwesto po siya sa
Dagupan at namimili at nagbebenta ng mga second hand car. Mga isang taon mahigit ko na po siyang
kilala.
5. T. Kailan at papano siya nawala o dinukot? [When and how did he disappear or was abducted]
S. Noon pong ika-9 ng Hulyo 2007, nag-text si PABLO sa akin, tinatanong kung ok na yung papel ng
Transfer of Ownership ng sasakyan, at sabi ko po "ok na". Sabi niya "Sige punta ako diyan." Mga alas-tres
(3:00) ng hapon dumating siya sa harap ng opisina naming sa Cres Eden building sa 8A Magalang St.,
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 111
Pinyahan, Quezon City. Dala ni PABLO yung Isuzu Sportivo (Plate ZCW-283) na kulay orange. Hindi na siya
bumaba ng sasakyan at tinawag na lang ako para sumakay sa kanya. Pag-sakay ko po ay may humarang
na dalawang sasakyan, isang Kia 2 door Sedan, puti, na may plate number YBA 255, at isang Toyota Lite
Ace, green, plate number ___-488. Tinutukan kami ng Calibre .45 pistol ng 2 lalaking tumabi sa amin ni
PABLO. Lumapit si SP02 ROLANDO PASCUA sa amin at pinalipat ako sa Pajero niya (kulay navy blue). May
ibang nag-maneho ng sasakyan ni PABLO na kasama siya doon. Kasama po ni PASCUA yung driver niya.
6. T. Sino si SP02 ROLANDO PASCUA?
S: Siya po nagpapagawa din sa akin ng araw na yon ng International Drivers License, police po siya, dating
naka-destino sa Firearms and Explosives Division (FED), Camp Crame.
xxxx
11. T. Saan kayo dinala ni PABLO?
S. Inikut-ikot kami sa labas ng Crame mga kalahating oras (3:00- 3:30 nh), tapos po ay pumasok kami sa
loob ng Crame sa tapat ng CIDG Building, parking area. Nasa labas lang kami ng CIDG Building nakapark
mga isa't kalahating oras (3:30-5:00 nh), nasa loob lang ako ng Pajero ni PASCUA. Si PABLO ay kinakausap
nila SP02 ROLANDO PASCUA sa loob ng Sportivo. Pinaalis na po ako mga bandang alas singko (5:00) ng
hapon, tumuloy na ako sa upisina sa Pinyahan. Naiwan po doon si PABLO CAYANAN Jr. bantay siya ng
mga dumukot sa kanya, kasama si SP02 ROLANDO PASCUA.
12. T. Paano mo nasabing nasa CIDG Crame kayo?
S. Madalas po ako doon, makikita po sa labas ng building na may malaking nakasulat na Criminal
Investigation and Detention (sic) Group (CIDG).22
Given that no ill-motive was imputed to Perez for firmly identifying Pascua as the person leading the
abduction of Pablo, the credibility of the identification of Pascua was unassailable. Indeed, Perez was not
likely to falsely incriminate a police officer like Pascua in the commission of a crime as serious as
abduction unless the incrimination was the truth.
Secondly, Pascua himself expressly admitted the abduction of Pablo, albeit asserting himself as another
victim of the same abduction. Pascua's version on the abduction, as culled from his counter-affidavit,
follows:
a) On July 9, 2007, I was at the vicinity of Magalang Street near the Land Transportation Office (LTO)
along East Avenue, Quezon City. I was then processing the application for International Driver's License
of a relative which was coursed and requested through me;
b) To facilitate the processing of the said application for International Driver's License, I met a friend
named Ronaldo F. Perez, who incidentally was [a] known "fixer" in the area to help him (sic) facilitate the
application;
c) At around 3:00 in the afternoon and while I am seated in a "turo turo" (cafeteria) talking to Ronaldo
Perez regarding the license detail, a group of men (referred to herein as "Malefactor" for brevity) more
or less ten (10) brandishing long and short firearms arrived and in a "Gestapo" like manner hauled
several persons including me and Ronaldo Perez. The incident transpired in no less than a minute. The
Malefactor seem to be trained and have prepared for the incident;
d) At that precise moment, [I] could not identify myself as a police officer yet to the Malefactors for fear
that I would be shot at by the Malefactors. At that time I did not bear with me my service fire arm -
caliber 9mm pistol;
e) We were ordered to board in a vehicle, which vehicle I cannot identify nor their license plate number.
There were Seven persons in the vehicle, four (4) members of the Malefactors and three (3) person who
were hauled including me and Ronaldo Perez;
f) All three (3) of us who were taken by the malefactors were ordered, at gun point, to bow our head
while the vehicle is moving. We were directed not to look anywhere;
g) Same vehicle, together with two more vehicle apparently taking the lead, drove all the way to EDSA
southbound passing by the street near the building where the Department of Interior and Local
Government is located;
h) It was along Kamuning or a few minutes after their (sic) hauling when I had the opportunity to identify
myself to one of the Malefactors that I am a bonafide member of the police force. I was asked if I am is
(sic) sure that I am a police officer, to which I answered "Opo";
i) A few minutes after and upon learning that I am a police officer, the vehicle stopped and I was required
to get off, which I immediately did. I was however directed by one of the Malefactor not to look back or I
would be shot which I complied;
j) Fearing that what I experienced may be [a] violation of the law, I boarded a taxi cab and immediately
proceeded to the Central Metro Manila Criminal Investigation and Detection Team located at Camp
Karingal, Sikatuna Village, Quezon City to report the incident. This is the station that I am quite familiar,
hence, I decided to proceed to the same station x x x.
k) I tried to locate Ronaldo Perez that night but to no avail and so I decided to wait for any news that may
come there after;
l) The next day, July 10, 2007 (Tuesday), I was surprised to learn from Ronaldo Perez through telephone
call, that he was likewise released and that he is now ready to process the requested International
Driver's License of his relative Rizalino Pascua Gani, Jr. x x x.23
Asserting himself as another victim of the same abduction was Pascua's way of denying his participation
in the abduction of Pablo. Yet, he did not furnish details of the abduction that would have given to the
investigators firm leads to quickly comer the perpetrators as well as to determine and locate the
whereabouts of Pablo. His omission as fatal to his credibility. He could not simply belie his part in the
abduction by issuing a blanket denial. He was expected to furnish details because he was a police officer
sworn to uphold and enforce the law. It is significant that his denial was already doubtful in light of
Perez's sinumpaang salaysay positively identifying of him as the leader of the perpetrators of the
abduction.
Thirdly, Pascua's version of being a victim of the same abduction deserved no consideration. For one, he
could not even mention the type and the color of the vehicle that he and Pablo were supposedly ordered
to board. Such inability was uncharacteristic of a veteran police officer like him. To justify his alleged
inability to provide details about the abductors in his counter-affidavit, he stated that he and Pablo were
told to "bow their heads and not to look." The justification was implausible, however, because it was
incompatible with his declaration in the same counter-affidavit to the effect that the "[s]ame vehicle,
together with two or more vehicle apparently taking the lead, drove all the way to EDSA southbound
passing by the street near the building where the Department of Interior and Local Government is
located."24 Furthermore, he said that he was released by the abductors only after having introduced
himself as a police officer. But he thereby contradicted himself because he also stated in the same
counter-affidavit that he feared being shot during the abduction if he identified himself as a police
officer. Moreover, he claimed that although he was released he submissively complied with the order of
one of the abductors for him "not to look back or [he] would be shot."25 The claim of submissiveness was
unnatural for a police officer like him because he was expected - mainly because of his training and
experience as a police officer, or even because of simple curiosity on his part - to have at least glanced at
the fleeing vehicle of the abductors in order to get a clue for the follow-up investigation. That he did not
give chase or tail the vehicle, or alert other police officers about the abduction soonest added to the
suspiciousness of his denial of participation in the abduction. And, lastly, his proceeding to a relatively
farther police station to report the incident, instead of to the nearer police station or outpost made his
version absolutely suspicious.
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 112
Fourthly, Regina presented other witnesses, namely: Ricardo Cayanan26 and Leonila R. Francisco,27 to
corroborate the allegation on the occurrence of the abduction. Such other witnesses also identified
Pascua as the person leading the abductors of Pablo and Perez.
And, fifthly, Perez's recantation of his sinumpaang salaysay had no evidentiary value for being general
and bereft of any details. A perusal shows that the recantation did not offer details of what had really
occurred if the abduction of Pablo did not actually happen. Such details were the only means to directly
contradict the details stated in the recanted sinumpaang salaysay.
It is relevant to note that the RTC, whose ascertainment of the credibility of conflicting testimonies is
generally accorded great respect by the reviewing court, easily disbelieved Perez's recantation of
his sinumpaang salaysay, observing as follows:
Even the recantation of Ronaldo Perez of his Sinumpaang Salaysay as presented by the respondent SPO2
Rolando Pascua is frowned upon by the Court. Jurisprudence has invariably regarded such affidavit as
exceedingly unreliable, because it can easily be secured from a poor and ignorant witness, usually
through intimidation or for monetary consideration. Considering that the respondents herein belong to
the police force, the motive of Ronaldo Perez in executing his Affidavit of Recantation is doubted by the
Court. Moreover, Ronaldo Perez's defiance of the subpoena sent to him by this Court proved all the more
the doubt of the Court of the veracity of his recantation.28
II.
The CIDG did not observe the
required extraordinary diligence
Section 17 of the Rule on the Writ of Amparo defines the diligence required of a public official or
employee who is named as a respondent in the petition for the writ of amparo, to wit:
Section 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims
by substantial evidence.
The respondent who is a private individual or entity must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary diligence as required
by applicable laws, rules and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that official duty has been
regularly performed to evade the responsibility or liability.
The CIDG posits that it was only required to observe ordinary diligence in conducting its investigation of
the disappearance of Pablo and in determining Pablo's whereabouts.
The CIDG's position is incorrect. The diligence required of the CIDG was extraordinary.
Section 9 of the Rule on the Writ of Amparo expressly states what a public official or employee impleaded
as a respondent in the petition for the writ of amparo should submit with the verified written return, to
wit:
Section 9. Return; Contents. - Within seventy-two (72) hours after service of the writ, the respondent
shall file a verified written return together with supporting affidavits which shall, among other things,
contain the following:
(a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to
life, liberty and security of the aggrieved party, through any act or omission;
(b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the threat, act or omission;
(c) All relevant information in the possession of the respondent pertaining to the threat, act or omission
against the aggrieved party; and
(d) If the respondent is a public official or employee, the return shall further state the actions that have
or will still be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover ·and preserve the evidence related to the death or disappearance of the person identified
in the petition which may aid in the prosecution of the person or persons responsible;
(iii) to identify witnesses and obtain statements from them concerning the death or disappearance;
(iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern
or practice that may have brought about the death or disappearance;
(v) to identify and apprehend the person or persons involved in the death or disappearance; and
(vi) to bring the suspected offenders before a competent court.
The return shall also state other matters relevant to the investigation, its resolution and the prosecution
of the case.
A general denial of the allegations in the petition shall not be allowed.
In its return, the CIDG only attached passive certificates issued by its operating divisions to the effect that
Pablo was not being detained by any of them.29 Said certifications were severely inadequate. It is almost
needless to characterize the certifications as non-compliant with the requirement for a detailed return.
As such, the certifications amounted to a general denial on the part of the CIDG. The quoted rule requires
the verified written return of the CIDG to be accompanied by supporting affidavits. Such affidavits, which
could be those of the persons tasked by the CIDG and other agencies like the NBI and probably the Land
Transportation Office (LTO) to collaborate in the investigation of the abduction of Pablo, would have
specified and described the efforts expended in the search for Pablo, if such search was really conducted,
and would have reported the progress of the investigation of the definite leads given in the
Perez's sinumpaang salaysay on the abduction itself.
The allegation that the CIDG had continuously searched for Pablo among its various operating divisions
similarly constituted a general denial because the CIDG did not thereby indicate who had conducted the
search, and how thoroughly the allegedly continuous searches had been conducted.
The CIDG pointed out in its return that the CIDG had undertaken an administrative investigation against
Pascua, and submitted in that regard the certification on the pre-charge evaluation and investigation of
Pascua. The CIDG asserts that its investigation of the disappearance of Pablo was conducted in tandem
with that of the NBI; that it had also formed its own investigating team to conduct a "thorough
investigation" of the abduction of Pablo; and that it had meanwhile verified the vehicle used in the
abduction from the LT0.30
Under the Rule on the Writ of Amparo, the return should spell out the details of the investigations
conducted by the CIDG and the NBI in a manner that would enable the RTC to judiciously determine
whether or not the efforts to ascertain Pablo's whereabouts had been sincere and adequate. The return
by the CIDG was non-compliant in that regard. To be noted at this juncture is that the CIDG should have
exerted greater effort at complying with both the letter and spirit of the Rule on the Writ of Amparo in
light of Perez's sinumpaang salaysay having fully placed the responsibility for the abduction and
disappearance of Pablo right at the very doorsteps of the CIDG in Camp Crame. It is disheartening for us
to see the CIDG's investigation having been limited to Pascua despite the circumstances justifying a
broader inquiry. There was also no affirmative showing of any investigation of the area of the abduction
itself despite Regina having presented witnesses from the area. Indeed, the CIDG did not seem to have
itself investigated Perez on the abduction.31
III.
The petition for the writ of amparo
was not defective
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 113
In his comment, which the CIDG adopted, Pascua reminds that the Rule on the Writ of Amparo was partly
patterned after the rules on the writ of amparo adopted in Mexico. He posits that it has been an essential
requirement in Mexico for the petition for the writ of amparo to state where the victim of involuntary
disappearance was being held. He argues that upon the recantation by Perez of his sinumpaang
salaysay, there was no more evidence from which to determine where Pablo was being held.
The argument of Pascua is unfounded.
Section 5 of the Rule on the Writ of Amparo lists the matters to be alleged in the petition for the writ
of amparo:
Section 5. Contents of the Petition. - The petition shall be signed and verified and shall allege the
following:
(a) The personal circumstance of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the threat, act or omission,
or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an
unlawful act or omission of the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of
the investigating authority or individuals, as well as the manner and conduct of the investigation,
together with the report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs.
As Section 5 shows, there is no requirement for the petition to state the probable whereabouts of the
victim. We have no doubt, however, that Regina was not aware where Pablo had been kept at the time
she filed her petition for the writ of habeas corpus.
Nonetheless, the Court clarifies that the application and implementation of the rule of amparo adopted
in Mexico or in any other country could only be persuasive at best. Despite its being patterned after the
rules on the writ of amparo of other countries, particularly those in Latin-American, the Rule on the Writ
of Amparo promulgated by the Court should not be wholly dependent on how those other rules
of amparo have operated, or have been implemented. Such operation and implementation, if worthy of
emulation, are only best practices to be considered and optionally relied upon, if at all. Circumstances
and needs peculiar to our country, which the Court has well considered in crafting the Rule on the Writ of
Amparo, dictate different operation and implementation.
It was actually presumptuous for Pascua to argue that there was no evidence at all that indicated the
whereabouts of Pablo following the abduction. There was such evidence, and it was substantial.
Specifically, Perez's sinumpaang salaysay stated the place where Pablo was detained or was last seen, to
wit:
11. T: Saan kayo dinala ni PABLO?
S: Inikut-ikot kami sa labas ng Crame mga kalahating oras (3:00- 3:30 nh), tapos po ay pumasok sa loob
ng Crame sa tapat ng CIDG Building, parking area. Nasa labas lang kami ng CIDG Building nakapark, mga
isa't kalahating oras (3:30-5:00 nh), nasa loob lang ako ng Pajero ni PASCUA. Si PABLO ay kinakausap nila
SPO2 ROLANDO PASCUA sa loob ng Sportivo. Pinaalis na po ako mga bandang alas singko (5:00) ng
hapon; tumuloy na ako sa upisina sa Pinyahan. Naiwan po doon si PABLO CAYANAN, Jr., bantay siya ng
mga dumukot sa kanya, kasama si SP02 ROLANDO PASCUA.
12. T: Paano mo nasabing nasa CIDG Crame kayo?
S: Madalas po ako doon, makikita po sa labas ng building na may malaking nakasulat na Criminal
Investigation and Detention (sic) Group (CIDG).32
Pascua suggests that the State, or any of its agencies or institutions like the CIDG, cannot be made a
respondent in the petition for the writ of amparo. He probably bases his suggestion on the text of
Section 1 of the Rule on the Writ of Amparo, which provides:
Section 1. Petition. - The petition for a writ of amparo is a remedy available to any person whose right to
life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity. (Emphasis supplied)
The suggestion of Pascua lacks substance. Although Section 1 states that the violation may be committed
by the persons therein listed (i.e., public official or employee, or a private individual or entity), it does not
state that only the listed persons can be made respondents. The rule does not list the State or its
agencies as possible violators simply because the State and its agencies may not be presumed to sanction
such violations.
In proper circumstances, the State or any of its relevant agencies may be impleaded; otherwise, the rule
on the writ of amparo may be rendered ineffective or toothless. There may be occasions when the
remedy of the writ of amparo can be made effective only through the State and its agencies. This is
because the State is vested with the authority and responsibility for securing every inhabitant's life,
liberty and property. After all, the State controls the legal, moral and material resources by which to fully
enforce the Constitution and the laws guaranteeing life, liberty and property.
IV.
The issuance of the writ of amparo did not impair
SPO2 Pascua's right to the presumption of innocence
Pascua supposes that the issuance of the writ of amparo issued against him impaired or diminished his
right to the presumption of innocence.1âwphi1
Pascua's supposition entirely misses the point.
The proceedings taken under the Rule on the Writ of Amparo are not akin or similar to those in criminal
prosecutions. In the former, the guilt or innocence of the respondents is not determined, and no penal
sanctions are meted. The proceedings only endeavor to give the aggrieved parties immediate remedies
against imminent or actual threats to life, liberty or security. The presumption of innocence is never an
issue. In the latter, the prosecution of the accused with due process of law is the object of the
proceedings. The presumption of innocence in favor of the accused is always the starting point. Hence,
the need for the State to adduce proof beyond reasonable doubt of the guilt of the accused.
V.
Reliefs to be granted
We next consider the reliefs to be granted in addition to the grant of the privilege of the writ of amparo.
According to Section 18 of the Rule on the Writ of Amparo, the court hearing the petition may grant the
privilege of the writ of amparo "and such reliefs as may be proper and appropriate." This means that
the amparo court should enable every act or move to prevent any violation of another person's right to
life, liberty and security or to defeat any threat of a violation of such right.
Under Section 9 of the Rule on the Writ of Amparo, the respondent is required to also state in the return
the actions that have been or will still be taken: (a) to verify the identity of the aggrieved party; (b) to
recover and preserve evidence related to the death or disappearance of the person identified in the
petition which may aid in the prosecution of the person or persons responsible; (c) to identify witnesses
and obtain statements from them concerning the death or disappearance; (d) to determine the cause,
manner, location and time of death or disappearance as well as any pattern or practice that may have
SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 114
brought about the death or disappearance; (e) to identify and apprehend the person or persons involved
in the death or disappearance; and (f) to bring the suspected offenders before a competent court.
With the records of the hearing sufficiently indicating the personal participation of Pascua in the
abduction of Pablo, Pascua ostensibly knew more than he cared to reveal thus far about the abduction.
As a start, Pascua, as the leader of the abduction, knew the identities of the eight or nine other
abductors. He should be assiduously investigated for his participation in the abduction, and, if warranted,
he should be promptly but duly held accountable for it. All those conspiring with him in abducting Pablo
should also be held to account to the full extent of the law. The CIDG and the NBI should not halt in
seeing to this, for they bear the primary responsibility in that respect.
WHEREFORE, the Court DENIES the petition for review on certiorari; and AFFIRMS the resolution
rendered on December 13, 2007 by the Regional Trial Court, Branch 91, in Quezon City in all respects
subject to the following MODIFICATIONS of the dispositive portion, as follows:
Foregoing premises considered, judgment is hereby rendered as follows, to wit:
1. The Court hereby grants the privilege of the Writ of Amparo;
2. Ordering respondent CIDG Chief/Director and the Director of the National Bureau of Investigation to
cause the speedy conduct of a thorough investigation of the disappearance of Pablo A. Cayanan probably
caused by members of the Philippine National Police then assigned in Camp Crame, presumably with the
Criminal Investigation and Detection Group;
3. Requiring the full investigation of SPO2 Rolando V. Pascua and other persons who took part in the
abduction of Pablo A. Cayanan; and, if warranted, charging them with the appropriate criminal offense or
offenses in the Department of Justice in relation to the abduction of Pablo A. Cayanan;
4. The Temporary Protection Order is hereby made permanent;
5. And the Granting of the Witness Protection Program availed of by the petitioner is hereby retained
until the finality of the case/cases related thereto.
It is so ordered.
The Court REMANDS the case to the Regional Trial Court, Branch 91, in Quezon City for the
implementation of and compliance with this decision with utmost dispatch.
SO ORDERED.

SPECIAL PROCEEDINGS | PREROGATIVE WRITS | 115