G.R. No.

176944               March 6, 2013

RET. LT. GEN. JACINTO C. LIGOT, ERLINDA Y. LIGOT, PAULO Y. LIGOT, RIZA Y. LIGOT, and MIGUEL Y.
LIGOT, Petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, represented by the ANTI-MONEY LAUNDERING COUNCIL, Respondent.

DECISION

BRION, J.:

In this petition for certiorari,1 retired Lieutenant General (Lt. Gen.) Jacinto C. Ligot, Erlinda Y. Ligot (Mrs. Ligot),
Paulo Y. Ligot, Riza Y. Ligot, and Miguel Y. Ligot (petitioners) claim that the Court of Appeals (CA) acted with grave
abuse of discretion amounting to lack or excess of jurisdiction when it issued its January 12, 2007 resolution 2 in CA
G.R. SP No. 90238. This assailed resolution affirmed in toto the CA’s earlier January 4, 2006 resolution 3 extending
the freeze order issued against the Ligot’s properties for an indefinite period of time.

BACKGROUND FACTS

On June 27, 2005, the Republic of the Philippines (Republic), represented by the Anti-Money Laundering Council
(AMLC), filed an Urgent Ex-Parte Application for the issuance of a freeze order with the CA against certain monetary
instruments and properties of the petitioners, pursuant to Section 10 4 of Republic Act (RA) No. 9160, as amended
(otherwise known as the Anti-Money Laundering Act of 2001). This application was based on the February 1, 2005
letter of the Office of the Ombudsman to the AMLC, recommending that the latter conduct an investigation on Lt.
Gen. Ligot and his family for possible violation of RA No. 9160. 5

In support of this recommendation, the Ombudsman attached the Complaint 6 it filed against the Ligots for perjury
under Article 183 of the Revised Penal Code, and for violations of Section 8 7 of RA No. 67138 and RA No. 3019
(Anti-Graft and Corrupt Practices Act).

The Ombudsman’s Complaint

a. Lt. Gen. Ligot and immediate family

The Ombudsman’s complaint alleges that Lt. Gen. Ligot served in the Armed Forces of the Philippines (AFP) for 33
years and 2 months, from April 1, 1966 as a cadet until his retirement on August 17, 2004. 9 He and Mrs. Ligot have
four children, namely: Paulo Y. Ligot, Riza Y. Ligot,

George Y. Ligot and Miguel Y. Ligot, who have all reached the age of majority at the time of the filing of the
complaint.10

Lt. Gen. Ligot declared in his Statement of Assets, Liabilities, and Net Worth (SALN) that as of December 31, 2003,
he had assets in the total amount of Three Million Eight Hundred Forty-Eight Thousand and Three Pesos
(₱3,848,003.00).11 In contrast, his declared assets in his 1982 SALN amounted to only One Hundred Five Thousand
Pesos (₱105,000.00).12

Aside from these declared assets, the Ombudsman’s investigation revealed that Lt. Gen. Ligot and his family had
other properties and bank accounts, not declared in his SALN, amounting to at least Fifty Four Million One
Thousand Two Hundred Seventeen Pesos (₱54,001,217.00). These undeclared assets consisted of the following:

Undeclared Assets Amount

Jacinto Ligot’s undeclared assets P 41,185,583.5313
Jacinto Ligot’s children’s assets 1,744,035.6014
Tuition fees and travel expenses P 2,308,047.8715
 Edgardo Yambao’s assets relative to the real P 8,763,550.0016
properties
Total P 54,001,217.00

Bearing in mind that Lt. Gen. Ligot’s main source of income was his salary as an officer of the AFP, 17 and given his
wife and children’s lack of any other substantial sources of income, 18 the Ombudsman declared the assets
registered in Lt. Gen. Ligot’s name, as well as those in his wife’s and children’s names, to be illegally obtained and
unexplained wealth, pursuant to the provisions of RA No. 1379 (An Act Declaring Forfeiture in Favor of the State
Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the
Proceedings Therefor).

b. Edgardo Tecson Yambao

The Ombudsman’s investigation also looked into Mrs. Ligot’s younger brother, Edgardo Tecson Yambao. The
records of the Social Security System (SSS) revealed that Yambao had been employed in the private sector from
1977 to 1994. Based on his contributions to the SSS, Yambao did not have a substantial salary during his
employment. While Yambao had an investment with Mabelline Foods, Inc., the Ombudsman noted that this
company only had a net income of ₱5,062.96 in 2002 and ₱693.67 in 2003. 19 Moreover, the certification from the
Bureau of Internal Revenue stated that Yambao had no record of any annual Individual Income

Tax Return filed for the calendar year 1999 up to the date of the investigation.

Despite Yambao’s lack of substantial income, the records show that he has real properties and vehicles registered
in his name, amounting to Eight Million Seven Hundred Sixty Three Thousand Five Hundred Fifty Pesos
(₱8,763,550.00), which he acquired from 1993 onwards. The Office of the Ombudsman further observed that in the
documents it examined, Yambao declared three of the Ligots’ addresses as his own.

From these circumstances, the Ombudsman concluded that Yambao acted as a dummy and/or nominee of the Ligot
spouses, and all the properties registered in Yambao’s name actually belong to the Ligot family.

Urgent Ex-Parte Freeze Order Application

As a result of the Ombudsman’s complaint, the Compliance and Investigation staff (CIS) of the AMLC conducted a
financial investigation, which revealed the existence of the Ligots’ various bank accounts with several financial
institutions.20 On April 5, 2005, the Ombudsman for the Military and Other Law Enforcement Officers issued a
resolution holding that probable cause exists that Lt. Gen. Ligot violated Section 8, in relation to Section 11, of RA
No. 6713, as well as Article 18321 of the Revised Penal Code.

On May 25, 2005, the AMLC issued Resolution No. 52, Series of 2005, directing the Executive Director of the AMLC
Secretariat to file an application for a freeze order against the properties of Lt. Gen. Ligot and the members of his
family with the CA.22 Subsequently, on June 27, 2005, the Republic filed an Urgent Ex-Parte Application with the
appellate court for the issuance of a Freeze Order against the properties of the Ligots and Yambao.

The appellate court granted the application in its July 5, 2005 resolution, ruling that probable cause existed that an
unlawful activity and/or money laundering offense had been committed by Lt. Gen. Ligot and his family, including
Yambao, and that the properties sought to be frozen are related to the unlawful activity or money laundering
offense. Accordingly, the CA issued a freeze order against the Ligots’ and Yambao’s various bank accounts, web
accounts and vehicles, valid for a period of 20 days from the date of issuance.

On July 26, 2005, the Republic filed an Urgent Motion for Extension of Effectivity of Freeze Order, arguing that if the
bank accounts, web accounts and vehicles were not continuously frozen, they could be placed beyond the reach of
law enforcement authorities and the government’s efforts to recover the proceeds of the Ligots’ unlawful activities
would be frustrated. In support of its motion, it informed the CA that the Ombudsman was presently investigating the
following cases involving the Ligots:
 Case Number
OMB-P-C-05- 0523
OMB-P-C-05- 0003
OMB-P-C-05- 0184
OMB-P-C-05-0352
Complainant(s)
Wilfredo Garrido
AGIO Gina Villamor, et al.
Field Investigation Office
David Odilao
Nature
Plunder
Perjury
Violation of RA No. 3019, Section
3(b); Perjury under Article 183,
Revised Penal Code in relation to
Section 11 of RA No. 6713;
Forfeiture Proceedings in Relation to
RA No. 1379
Malicious Mischief; Violation of
Section 20, RA No. 7856

Finding merit in the Republic’s arguments, the CA granted the motion in its September 20, 2005 resolution,
extending the freeze order until after all the appropriate proceedings and/or investigations have been terminated.

On September 28, 2005, the Ligots filed a motion to lift the extended freeze order, principally arguing that there was
no evidence to support the extension of the freeze order. They further argued that the extension not only deprived
them of their property without due process; it also punished them before their guilt could be proven. The appellate
court subsequently denied this motion in its January 4, 2006 resolution.

Meanwhile, on November 15, 2005, the "Rule of Procedure in Cases of Civil Forfeiture, Asset Preservation, and
Freezing of Monetary Instrument, Property, or Proceeds Representing, Involving, or Relating to an Unlawful Activity
or Money Laundering Offense under Republic Act No. 9160, as Amended" 23 (Rule in Civil Forfeiture Cases) took
effect. Under this rule, a freeze order could be extended for a maximum period of six months.

On January 31, 2006, the Ligots filed a motion for reconsideration of the CA’s January 4, 2006 resolution, insisting
that the freeze order should be lifted considering: (a) no predicate crime has been proven to support the freeze
order’s issuance; (b) the freeze order expired six months after it was issued on July 5, 2005; and (c) the freeze order
is provisional in character and not intended to supplant a case for money laundering. When the CA denied this
motion in its resolution dated January 12, 2007, the Ligots filed the present petition.

THE PETITIONERS’ ARGUMENTS

Lt. Gen. Ligot argues that the appellate court committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it extended the freeze order issued against him and his family even though no predicate crime had
been duly proven or established to support the allegation of money laundering. He also maintains that the freeze
order issued against them ceased to be effective in view of the 6-month extension limit of freeze orders provided
under the Rule in Civil Forfeiture Cases. The CA, in extending the freeze order, not only unduly deprived him and
his family of their property, in violation of due process, but also penalized them before they had been convicted of
the crimes they stand accused of.

THE REPUBLIC’S ARGUMENTS

In opposition, the Republic claims that the CA can issue a freeze order upon a determination that probable cause
exists, showing that the monetary instruments or properties subject of the freeze order are related to the unlawful
activity enumerated in RA No. 9160. Contrary to the petitioners’ claims, it is not necessary that a formal criminal
charge must have been previously filed against them before the freeze order can be issued.

The Republic further claims that the CA’s September 20, 2005 resolution, granting the Republic’s motion to extend
the effectivity of the freeze order, had already become final and executory, and could no longer be challenged. The
Republic notes that the Ligots erred when they filed what is effectively a second motion for reconsideration in
response to the CA’s January 4, 2006 resolution, instead of filing a petition for review on certiorari via Rule 45 with
this Court. Under these circumstances, the assailed January 4, 2006 resolution granting the freeze order had
already attained finality when the Ligots filed the present petition before this Court.
 THE COURT’S RULING

We find merit in the petition.

I. Procedural aspect

a. Certiorari not proper remedy to assail freeze order; exception

Section 57 of the Rule in Civil Forfeiture Cases explicitly provides the remedy available in cases involving freeze
orders issued by the CA:

Section 57. Appeal. - Any party aggrieved by the decision or ruling of the court may appeal to the Supreme Court by
petition for review on certiorari under Rule 45 of the Rules of Court. The appeal shall not stay the enforcement of the
subject decision or final order unless the Supreme Court directs otherwise. [italics supplied]

From this provision, it is apparent that the petitioners should have filed a petition for review on certiorari, and not a
petition for certiorari, to assail the CA resolution which extended the effectivity period of the freeze order over their
properties.

Even assuming that a petition for certiorari is available to the petitioners, a review of their petition shows that the
issues they raise (i.e., existence of probable cause to support the freeze order; the applicability of the 6-month limit
to the extension of freeze orders embodied in the Rule of Procedure in Cases of Civil Forfeiture) pertain to errors of
judgment allegedly committed by the CA, which fall outside the Court’s limited jurisdiction when resolving certiorari
petitions. As held in People v. Court of Appeals: 24

In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is limited to resolving only errors of
jurisdiction. It is not to stray at will and resolve questions or issues beyond its competence such as errors of
judgment. Errors of judgment of the trial court are to be resolved by the appellate court in the appeal by and of error
or via a petition for review on certiorari in this Court under Rule 45 of the Rules of Court. Certiorari will issue only to
correct errors of jurisdiction. It is not a remedy to correct errors of judgment. An error of judgment is one in which the
court may commit in the exercise of its jurisdiction, and which error is reversible only by an appeal. Error of
jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction and which
error is correctible only by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors by the trial
court in its appreciation of the evidence of the parties, and its conclusions anchored on the said findings and its
conclusions of law. As long as the court acts within its jurisdiction, any alleged errors committed in the exercise of its
discretion will amount to nothing more than mere errors of judgment, correctible by an appeal or a petition for review
under Rule 45 of the Rules of Court.25 (citations omitted; italics supplied)

Clearly, the Ligots should have filed a petition for review on certiorari, and not what is effectively a second motion for
reconsideration (nor an original action of certiorari after this second motion was denied), within fifteen days from
receipt of the CA’s January 4, 2006 resolution. To recall, this resolution denied the petitioners’ motion to lift the
extended freeze order which is effectively a motion for reconsideration of the CA ruling extending the freeze order
indefinitely.26

However, considering the issue of due process squarely brought before us in the face of an apparent conflict
between Section 10 of RA No. 9160, as amended, and Section 53(b) of the Rule in Civil Forfeiture Cases, this Court
finds it imperative to relax the application of the rules of procedure and resolve this case on the merits in the interest
of justice.27

b. Applicability of 6-month extension period under the Rule in Civil Forfeiture Cases

Without challenging the validity of the fixed 6-month extension period, the Republic nonetheless asserts that the
Rule in Civil Forfeiture Cases does not apply to the present case because the CA had already resolved the issues
regarding the extension of the freeze order before the

Rule in Civil Forfeiture Cases came into effect.

This reasoning fails to convince us.

Notably, the Rule in Civil Forfeiture Cases came into effect on December 15, 2005. Section 59 provides that it shall
"apply to all pending civil forfeiture cases or petitions for freeze order" at the time of its effectivity.

A review of the record reveals that after the CA issued its September 20, 2005 resolution extending the freeze order,
the Ligots filed a motion to lift the extended freeze order on September 28, 2005. Significantly, the CA only acted
upon this motion on January 4, 2006, when it issued a resolution denying it.

While denominated as a Motion to Lift Extended Freeze Order, this motion was actually a motion for
reconsideration, as it sought the reversal of the assailed CA resolution. Since the Ligots’ motion for reconsideration
was still pending resolution at the time the Rule in Civil Forfeiture Cases came into effect on December 15, 2005,
the Rule unquestionably applies to the present case.

c. Subsequent events

During the pendency of this case, the Republic manifested that on September 26, 2011, it filed a Petition for Civil
Forfeiture with the Regional Trial Court (RTC) of Manila. On September 28, 2011, the RTC, Branch 22, Manila,
issued a Provisional Asset Preservation Order and on October 5, 2011, after due hearing, it issued an Asset
Preservation Order.

On the other hand, the petitioners manifested that as of October 29, 2012, the only case filed in connection with the
frozen bank accounts is Civil Case No. 0197, for forfeiture of unlawfully acquired properties under RA No. 1379
(entitled "Republic of the Philippines v. Lt. Gen. Jacinto Ligot, et. al."), pending before the Sandiganbayan.

These subsequent developments and their dates are significant in our consideration of the present case, particularly
the procedural aspect. Under Section 56 of the Rule in Civil Forfeiture Cases which provides that after the post-
issuance hearing on whether to modify, lift or extend the freeze order, the CA shall remand the case and transmit
the records to the RTC for consolidation with the pending civil forfeiture proceeding. This provision gives the
impression that the filing of the appropriate cases in courts in 2011 and 2012 rendered this case moot and
academic.

A case is considered moot and academic when it "ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline
jurisdiction over such case or dismiss it on ground of mootness." 28 However, the moot and academic principle is not
an iron-clad rule and is subject to four settled exceptions, 29 two of which are present in this case, namely: when the
constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar, and the
public, and when the case is capable of repetition, yet evading review.

The apparent conflict presented by the limiting provision of the Rule in Civil Forfeiture Cases, on one hand, and the
very broad judicial discretion under RA No. 9160, as amended, on the other hand, and the uncertainty it casts on an
individual’s guaranteed right to due process indubitably call for the Court’s exercise of its discretion to decide the
case, otherwise moot and academic, under those two exceptions, for the future guidance of those affected and
involved in the implementation of RA No. 9160, as amended.

Additionally, we would be giving premium to the government’s failure to file an appropriate case until only after six
years (despite the clear provision of the Rule in Civil Forfeiture Cases) were we to dismiss the petition because of
the filing of the forfeiture case during the pendency of the case before the Court. The sheer length of time and the
constitutional violation involved, as will be discussed below, strongly dissuade us from dismissing the petition on the
basis of the "moot and academic" principle. The Court should not allow the seeds of future violations to sprout by
hiding under this principle even when directly confronted with the glaring issue of the respondent’s violation of the
petitioners’ due process right30 - an issue that the respondent itself chooses to ignore.

We shall discuss the substantive relevance of the subsequent developments and their dates at length below.

II. Substantive aspect

a. Probable cause exists to support the issuance of a freeze order

The legal basis for the issuance of a freeze order is Section 10 of RA No. 9160, as amended by RA No. 9194, which
states:

Section 10. Freezing of Monetary Instrument or Property. – The Court of Appeals, upon application ex parte by the
AMLC and after determination that probable cause exists that any monetary instrument or property is in any way
related to an unlawful activity as defined in Section

3(i) hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for a period of
twenty (20) days unless extended by the court. [italics supplied]

The Ligots claim that the CA erred in extending the effectivity period of the freeze order against them, given that
they have not yet been convicted of committing any of the offenses enumerated under RA No. 9160 that would
support the AMLC’s accusation of money-laundering activity.

We do not see any merit in this claim. The Ligots’ argument is founded on a flawed understanding of probable
cause in the context of a civil forfeiture proceeding31 or freeze order application.32

Based on Section 10 quoted above, there are only two requisites for the issuance of a freeze order: (1) the
application ex parte by the AMLC and (2) the determination of probable cause by the CA. 33 The probable cause
required for the issuance of a freeze order differs from the probable cause required for the institution of a criminal
action, and the latter was not an issue before the CA nor is it an issue before us in this case.

As defined in the law, the probable cause required for the issuance of a freeze order refers to "such facts and
circumstances which would lead a reasonably discreet, prudent or cautious man to believe that an unlawful activity
and/or a money laundering offense is about to be, is being or has been committed and that the account or any
monetary instrument or property subject thereof sought to be frozen is in any way related to said unlawful activity
and/or money laundering offense."34

In other words, in resolving the issue of whether probable cause exists, the CA’s statutorily-guided determination’s
focus is not on the probable commission of an unlawful activity (or money laundering) that the Office of the
Ombudsman has already determined to exist, but on whether the bank accounts, assets, or other monetary
instruments sought to be frozen are in any way related to any of the illegal activities enumerated under RA No.
9160, as amended.35 Otherwise stated, probable cause refers to the sufficiency of the relation between an unlawful
activity and the property or monetary instrument which is the focal point of Section 10 of RA No. 9160, as amended.
To differentiate this from any criminal case that may thereafter be instituted against the same respondent, the Rule
in Civil Forfeiture Cases expressly provides –

SEC. 28. Precedence of proceedings. - Any criminal case relating to an unlawful activity shall be given precedence
over the prosecution of any offense or violation under Republic Act No. 9160, as amended, without prejudice to the
filing of a separate petition for civil forfeiture or the issuance of an asset preservation order or a freeze order. Such
civil action shall proceed independently of the criminal prosecution. [italics supplied; emphases ours]

Section 10 of RA No. 9160 (allowing the extension of the freeze order) and Section 28 (allowing a separate petition
for the issuance of a freeze order to proceed independently) of the Rule in Civil Forfeiture Cases are only consistent
with the very purpose of the freeze order, which specifically is to give the government the necessary time to prepare
its case and to file the appropriate charges without having to worry about the possible dissipation of the assets that
are in any way related to the suspected illegal activity. Thus, contrary to the Ligots’ claim, a freeze order is not
dependent on a separate criminal charge, much less does it depend on a conviction.

That a freeze order can be issued upon the AMLC’s ex parte application further emphasizes the law’s consideration
of how critical time is in these proceedings. As we previously noted in Republic v. Eugenio, Jr., 36 "to make such
freeze order anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the
dissipation of such funds even before the order could be issued."
It should be noted that the existence of an unlawful activity that would justify the issuance and the extension of the
freeze order has likewise been established in this case.

From the ex parte application and the Ombudsman’s complaint, we glean that Lt. Gen. Ligot himself admitted that
his income came from his salary as an officer of the AFP. Yet, the Ombudsman’s investigation revealed that the
bank accounts, investments and properties in the name of Lt. Gen. Ligot and his family amount to more than Fifty-
Four Million Pesos (₱54,000,000.00). Since these assets are grossly disproportionate to Lt. Gen. Ligot’s income, as
well as the lack of any evidence that the Ligots have other sources of income, the CA properly found that probable
cause exists that these funds have been illegally acquired. On the other hand, the AMLC’s verified allegations in its
ex parte application, based on the complaint filed by the Ombudsman against Ligot and his family for violations of
the Anti-Graft and Corrupt Practices Act, clearly sustain the CA’s finding that probable cause exists that the
monetary instruments subject of the freeze order are related to, or are the product of, an unlawful activity.

b. A freeze order, however, cannot be issued for an indefinite period

Assuming that the freeze order is substantively in legal order, the Ligots now assert that its effectiveness ceased
after January 25, 2006 (or six months after July 25, 2005 when the original freeze order first expired), pursuant to
Section 53(b) of the Rule in Civil Forfeiture Cases (A.M. No. 05-11-04-SC). This section states:

Section 53. Freeze order. –

xxxx

(b) Extension. – On motion of the petitioner filed before the expiration of twenty days from issuance of a freeze
order, the court may for good cause extend its effectivity for a period not exceeding six months. [italics supplied;
emphasis ours]

We find merit in this claim.

A freeze order is an extraordinary and interim relief 37 issued by the CA to prevent the dissipation, removal, or
disposal of properties that are suspected to be the proceeds of, or related to, unlawful activities as defined in
Section 3(i) of RA No. 9160, as amended.38 The primary objective of a freeze order is to temporarily preserve
monetary instruments or property that are in any way related to an unlawful activity or money laundering, by
preventing the owner from utilizing them during the duration of the freeze order. 39 The relief is pre-emptive in
character, meant to prevent the owner from disposing his property and thwarting the State’s effort in building its
case and eventually filing civil forfeiture proceedings and/or prosecuting the owner.

Our examination of the Anti-Money Laundering Act of 2001, as amended, from the point of view of the freeze order
that it authorizes, shows that the law is silent on the maximum period of time that the freeze order can be extended
by the CA. The final sentence of Section 10 of the Anti-Money Laundering Act of 2001 provides, "the freeze order
shall be for a period of twenty (20) days unless extended by the court." In contrast, Section 55 of the Rule in Civil
Forfeiture Cases qualifies the grant of extension "for a period not exceeding six months" "for good cause" shown.

We observe on this point that nothing in the law grants the owner of the "frozen" property any substantive right to
demand that the freeze order be lifted, except by implication, i.e., if he can show that no probable cause exists or if
the 20-day period has already lapsed without any extension being requested from and granted by the CA. Notably,
the Senate deliberations on RA No. 9160 even suggest the intent on the part of our legislators to make the freeze
order effective until the termination of the case, when necessary.40

The silence of the law, however, does not in any way affect the Court’s own power under the Constitution to
"promulgate rules concerning the protection and enforcement of constitutional rights xxx and procedure in all
courts."41 Pursuant to this power, the Court issued A.M. No. 05-11-04-SC, limiting the effectivity of an extended
freeze order to six months – to otherwise leave the grant of the extension to the sole discretion of the CA, which
may extend a freeze order indefinitely or to an unreasonable amount of time – carries serious implications on an
individual’s substantive right to due process.42 This right demands that no person be denied his right to property or
be subjected to any governmental action that amounts to a denial. 43 The right to due process, under these terms,
requires a limitation or at least an inquiry on whether sufficient justification for the governmental action. 44
In this case, the law has left to the CA the authority to resolve the issue of extending the freeze order it issued.
Without doubt, the CA followed the law to the letter, but it did so by avoiding the fundamental law’s command under
its Section 1, Article III. This command, the Court – under its constitutional rule-making power – sought to implement
through Section 53(b) of the Rule in Civil Forfeiture Cases which the CA erroneously assumed does not apply.

The Ligots’ case perfectly illustrates the inequity that would result from giving the CA the power to extend freeze
orders without limitations. As narrated above, the CA, via its September 20, 2005 resolution, extended the freeze
order over the Ligots’ various bank accounts and personal properties "until after all the appropriate proceedings
and/or investigations being conducted are terminated." 45 By its very terms, the CA resolution effectively bars the
Ligots from using any of the property covered by the freeze order until after an eventual civil forfeiture proceeding is
concluded in their favor and after they shall have been adjudged not guilty of the crimes they are suspected of
committing. These periods of extension are way beyond the intent and purposes of a freeze order which is intended
solely as an interim relief; the civil and criminal trial courts can very well handle the disposition of properties related
to a forfeiture case or to a crime charged and need not rely on the interim relief that the appellate court issued as a
guarantee against loss of property while the government is preparing its full case. The term of the CA’s extension,
too, borders on inflicting a punishment to the Ligots, in violation of their constitutionally protected right to be
presumed innocent, because the unreasonable denial of their property comes before final conviction.

In more concrete terms, the freeze order over the Ligots’ properties has been in effect since 2005, while the civil
forfeiture case – per the Republic’s manifestation – was filed only in 2011 and the forfeiture case under RA No.
1379 – per the petitioners’ manifestation – was filed only in 2012. This means that the Ligots have not been able to
access the properties subject of the freeze order for six years or so simply on the basis of the existence of probable
cause to issue a freeze order, which was intended mainly as an interim preemptive remedy.

As correctly noted by the petitioners, a freeze order is meant to have a temporary effect; it was never intended to
supplant or replace the actual forfeiture cases where the provisional remedy - which means, the remedy is an
adjunct of or an incident to the main action – of asking for the issuance of an asset preservation order from the court
where the petition is filed is precisely available. For emphasis, a freeze order is both a preservatory and preemptive
remedy.

To stress, the evils caused by the law’s silence on the freeze order’s period of effectivity 46 compelled this Court to
issue the Rule in Civil Forfeiture Cases. Specifically, the Court fixed the maximum allowable extension on the freeze
order’s effectivity at six months. In doing so, the Court sought to balance the State’s interest in going after suspected
money launderers with an individual’s constitutionally-protected right not to be deprived of his property without due
process of law, as well as to be presumed innocent until proven guilty.

To our mind, the six-month extension period is ordinarily sufficient for the government to act against the suspected
money launderer and to file the appropriate forfeiture case against him, and is a reasonable period as well that
recognizes the property owner’s right to due process. In this case, the period of inaction of six years, under the
circumstances, already far exceeded what is reasonable.

We are not unmindful that the State itself is entitled to due process.  As a due process concern, we do not say that
1âwphi1

the six-month period is an inflexible rule that would result in the automatic lifting of the freeze order upon its
expiration in all instances. An inflexible rule may lend itself to abuse - to the prejudice of the State’s legitimate
interests - where the property owner would simply file numerous suits, questioning the freeze order during the six-
month extension period, to prevent the timely filing of a money laundering or civil forfeiture case within this period.
With the limited resources that our government prosecutors and investigators have at their disposal, the end-result
of an inflexible rule is not difficult to see.

We observe, too, that the factual complexities and intricacies of the case and other matters that may be beyond the
government’s prosecutory agencies’ control may contribute to their inability to file the corresponding civil forfeiture
case before the lapse of six months. Given these considerations, it is only proper to strike a balance between the
individual’s right to due process and the government’s interest in curbing criminality, particularly money laundering
and the predicate crimes underlying it.

Thus, as a rule, the effectivity of a freeze order may be extended by the CA for a period not exceeding six months.
Before or upon the lapse of this period, ideally, the Republic should have already filed a case for civil forfeiture
against the property owner with the proper courts and accordingly secure an asset preservation order or it should
have filed the necessary information. 47 Otherwise, the property owner should already be able to fully enjoy his
property without any legal process affecting it. However, should it become completely necessary for the Republic to
further extend the duration of the freeze order, it should file the necessary motion before the expiration of the six-
month period and explain the reason or reasons for its failure to file an appropriate case and justify the period of
extension sought. The freeze order should remain effective prior to the resolution by the CA, which is hereby
directed to resolve this kind of motion for extension with reasonable dispatch.

In the present case, we note that the Republic has not offered any explanation why it took six years (from the time it
secured a freeze order) before a civil forfeiture case was filed in court, despite the clear tenor of the Rule in Civil
Forfeiture Cases allowing the extension of a freeze order for only a period of six months. All the Republic could
proffer is its temporal argument on the inapplicability of the Rule in Civil Forfeiture Cases; in effect, it glossed over
the squarely-raised issue of due process. Under these circumstances, we cannot but conclude that the continued
extension of the freeze order beyond the six-month period violated the Ligot’s right to due process; thus, the CA
decision should be reversed.

We clarify that our conclusion applies only to the CA ruling and does not affect the proceedings and whatever order
or resolution the RTC may have issued in the presently pending civil cases for forfeiture. We make this clarification
to ensure that we can now fully conclude and terminate this CA aspect of the case.

As our last point, we commend the fervor of the CA in assisting the State’s efforts to prosecute corrupt public
officials. We remind the appellate court though that the government’s anti-corruption drive cannot be done at the
expense of cherished fundamental rights enshrined in our Constitution. So long as we continue to be guided by the
Constitution and the rule of law, the Court cannot allow the justification of governmental action on the basis of the
noblest objectives alone. As so oft-repeated, the end does not justify the means. Of primordial importance is that the
means employed must be in keeping with the Constitution. Mere expediency will certainly not excuse constitutional
shortcuts.48

WHEREFORE, premises considered, we GRANT the petition and LIFT the freeze order issued by the Court of
Appeals in CA G.R. SP No. 90238. This lifting is without prejudice to, and shall not affect, the preservation orders
that the lower courts have ordered on the same properties in the cases pending before them. Pursuant to Section
56 of A.M. No. 05-11-04-SC, the Court of Appeals is hereby ordered to remand the case and to transmit the records
to the Regional Trial Court of Manila, Branch 22, where the civil forfeiture proceeding is pending, for consolidation
therewith as may be appropriate.

SO ORDERED.
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;  that on July 9, 2007 a group of armed men identifying
3

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,  disposing thusly:
12

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;  however, the RTC denied the motion for reconsideration on
14

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

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.  This standard was applied in Secretary of National Defense v. Manalo,  the first ruling by the Court
18 19

relating to the remedy of the writ of amparo.

In Razon, Jr. v. Tagitis,  a case involving the propriety of the trial court's issuance of the writ of amparo, the Court
20

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.  (Emphases supplied)
21

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., 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."  Furthermore, he said that he was released by the abductors only after having
24

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."  The claim of submissiveness was unnatural for a police officer like him
25

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.

Fourthly, Regina presented other witnesses, namely: Ricardo Cayanan  and Leonila R. Francisco,  to corroborate
26 27

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.  Said certifications were severely inadequate. It is almost needless to
29

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

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 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.
 G.R. No. 221862, January 23, 2018

GEN. EMMANUEL BAUTISTA, IN HIS CAPACITY AS THE CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES (AFP), GEN. EDUARDO AÑO, IN HIS CAPACITY AS
COMMANDING OFFICER OF THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE
PHILIPPINES (ISAFP), GEN. HERNANDO IRIBERRI, IN HIS CAPACITY AS COMMANDING
GENERAL OF THE PHILIPPINE ARMY, GEN. BENITO ANTONIO T. DE LEON, IN HIS CAPACITY
AS COMMANDING GENERAL OF THE 5TH INFANTRY DIVISION, AND PC/SUPT. MIGUEL DE
MAYO LAUREL, IN HIS CAPACITY AS CHIEF OF THE ISABELA PROVINCIAL POLICE
OFFICE, Petitioners, v. ATTY. MARIA CATHERINE DANNUG-SALUCON, Respondent.

DECISION

BERSAMIN, J.:

The privilege of the writ of amparo may be granted on the basis of the application of the totality of
evidence standard. Such application may extend to the use of relevant circumstantial evidence.
Hearsay testimony that is consistent with the admissible evidence adduced may also be admitted and
appreciated. The flexibility in the admission of evidence derives from the recognition of the State's
often virtual, monopoly of access to pertinent evidence, as well as from the recognition of the
deliberate use of the State's power to destroy pertinent evidence being inherent in the practice of
enforced disappearances.

The Case

By petition for review on certiorari,1 the petitioners, namely: Gen. Emmanuel Bautista, Gen. Eduardo
Año, Gen. Hernando Iriberri, Gen. Benito Antonio T. De Leon, and Chief Supt. Miguel De Mayo Laurel,
hereby assail the decision promulgated on March 12, 2015 in CA-G.R. SP No. 00053-W/A,2 whereby
the Court of Appeals (CA) granted the privilege of the writs of amparo and habeas data in favor of
respondent Atty. Maria Catherine Dannug-Salucon (Atty. Salucon), the petitioner thereat, as well as
the resolution promulgated on December 2, 2015,3 whereby the CA denied their motion for
reconsideration.

Antecedents

After her admission to the Philippine Bar, Atty. Salucon initially worked for the Public Attorney's
Office (PAO) before resigning to be become a human rights advocate. She co-founded the National
Union of People's Lawyers (NUPL), a national association of human rights advocates, law students
and paralegals principally engaged in public interest cases and human rights advocacy. She also
established her own law firm, and undertook the defense of several political detainees, most of whom
were leaders or members of peasant and other sectoral organizations and people's organizations,
including human rights defenders labeled or suspected to be members of the Communist Party of the
Philippines (CPP) or the New People's Army (NPA) who had been harassed with allegedly trumped-up
charges by the agents of the Government.

For purposes of this adjudication, we adopt the CA's summary of the factual antecedents derived
from Atty. Salucon's petition for the issuance of the writs of amparo and habeas data, to wit:

On March 24, 2014, [respondent] was at a lunch meeting with the relatives of a detained political
prisoner client who was allegedly among several leaders of people's organizations/sectoral
organizations who were falsely charged in a murder and frustrated murder case pending before the
Regional Trial Court (RTC) of Lagawe, Ifugao. As they were discussing the security risks involved in
the handling of the case, William Bugatti, her paralegal who was working with her on said case and
who was also an activist and human rights defender, informed her that he had personally observed
that surveillance was being conducted on them, including the respondent, especially during hearings
for the above case. Thus, he suggested certain security measures for her own protection.
[Respondent] realized the significance of Bugatti's advice when he was fatally gunned down later that
evening. Parenthetically, [respondent] had asked him (sic) early that very day to identify the names,
ranks and addresses of the handler/s of the prosecution witness in the Lagawe case, whom
[respondent] suspected of lying on the witness stand.

That same evening, [respondent] was informed by a client x x x working as a civilian asset for the
PNP Intelligence Section that the Regional Intelligence of the PNP, through the PNP Isabela Provincial
Police Office, had issued a directive to PNP Burgos, Isabela, [respondent's] hometown, to conduct a
background investigation on her and to confirm whether she was a "Red Lawyer". She also learned
that she was being secretly followed by agents of the Intelligence Service of the Armed Forces of the
Philippines (ISAFP) and that person looking like military/policemen had been asking people around
her office about her whereabouts and routine. Further, respondent's name was reportedly included in
the military's Watch List of so-called communist terrorist supporters rendering legal services.

On March 31, 2014, [respondent] again received a call from her confidential informant, confirming
that she was indeed the subject of surveillance and that, in fact, he was tailed by ISAFP operatives
when he came to [respondent's] office a few nights earlier. The day before, the confidential
informant was allegedly cornered by three ISAFP operatives who interrogated him on the purpose of
his visit to respondent's office. They also asked him why respondent was acquainted with known NPA
members such as Randy Malayao and Grace Bautista, and why she was always the lawyer of several
suspected communist terrorists.

Upon further investigation, respondent discovered the following things:

1) On or about March 12, 19 and 21, 2014, when [respondent] had out-of-town hearings, different
individuals riding on motorcycles and appearing to be soldiers approached one of
the  buko and tupig vendors in front of [respondent's] office. Each of them similarly questioned the
vendors as to where [respondent] went, with whom, what time she usually returned to the office and who
stayed behind in the office whenever she left. The vendor was surprised because the questions of the
individuals were uniform on all occasions and they did not go into [respondent's] office despite the
vendor's advice for them to talk to [respondent's] secretary. The above incidents were narrated to
[respondent] by her driver, Regie Lutao Gamongan, who had gotten the information from the vendor.
   
2) On March 31, 2014, a member of the Criminal Investigation Service (CIS) of the Criminal Investigation
Detection Group (CIDG) came to the law office, asking for the [respondent], but without telling her
secretary why he was looking for her. Upon learning that she was not there, he left, then returned again in
the afternoon. However, he left again upon finding out that [respondent] had decided to stay at the Hall of
Justice longer than expected.
   
3) On the same day, [respondent] received a text message from the Chief Investigator of the CIDG, asking
for a copy of the records of a human rights case involving three Bayan Muna members who were
allegedly arbitrarily arrested on the basis of trumped up charges for two counts of frustrated murder and
tortured in the hands of the 86th Infantry Battalion intelligence operatives. Said case was dismissed by the
Office of the Provincial Prosecutor during preliminary investigation. [Respondent] was surprised at the
request because it was the third time that the investigator was requesting for a copy of the records and he
could have easily secured the same from the Provincial Prosecutor's Office. Thus, [respondent] ignored
the text message.
   
4) On or about 7:30 AM on April 3, 2014, while [respondent's] driver, Gamongan, was waiting for her in
front of her residence at Poblacion, Burgos, Isabela, a red "Wave" motorcycle with its plate number cased
inside a tinted plastic cover, making it impossible to read the same, passed by their house. The
motorcycle driver, who was of medium height, with dark complexion, a haircut and demeanor of a
military/policeman, with a tattoo on his left, wearing a white sando shirt and with a pistol bag slung
around his shoulder, looked intently at Gamongan as he passed by, "as if he wanted to do something
wrong". After passing by the [respondent's] compound, the motorcycle rider suddenly made a u-turn and
stared intently at Gamongan as he passed by. As he headed towards the highway, Gamongan noticed that
the man was continually observing him through the side mirror. In relation to this incident, witness
Gamongan executed a Judicial Affidavit and testified during the trial proceedings.
   
5) On or about April 7 and 10, 2013, soldiers came to [respondent's] office in the guise of asking her to
notarize documents. Since [respondent] was on out-of-town hearings, her secretary suggested names of
other available notaries public. However, instead of leaving right away, the military men asked where
[respondent] went and with whom, and insisted on leaving the document and picking it up later on when
[respondent] arrived.
   
6) On April 10, 2014, a known civilian asset of the Military Intelligence Group (MIG) in Isabela, who also
happened to be the "close-in" secretary and part-time driver of an uncle who was a municipal circuit
judge, came to [respondent's] office, trying to convince her to meet with the head of the MIG Isabela so
that the latter could explain why [respondent] was being watched. However, [respondent] declined. The
following day, the civilian asset returned and told her that she was being watched by the MIG because of
a land dispute which she was handling at a court in Roxas, Isabela. [Respondent] did not believe him
because, just a couple of days prior to that date, the MIG operatives had talked to the client/confidential
informant who had first informed [respondent] of the purported surveillance operations on her, asking for
[respondent's] phone number and inviting him to join them as civilian asset in their anti-insurgency
operations.4

In her petition, thus, [respondent] posited that the above-described acts, taking into consideration
previous incidents where human rights lawyers, human rights defenders, political activists and
defenders, were killed or abducted after being labeled as "communists" and being subjected to
military surveillance, may be interpreted as preliminary acts leading to the abduction and/or killing of
[respondent]. Moreover, while [respondent] admitted that the purported military and police
operatives who conducted, and were still conducting, surveillance and harassments on [respondent]
were still unidentified, she maintained that the same were identified as members of the ISAFP, the
Philippine Army and the police, and that there was no doubt that they all acted upon orders of their
superiors within the chain of command. [Respondent] reported the incidents to the NUPL and the
human rights group KARAPATAN (Alliance for the Advancement of People's Rights), who agreed to
help her in filing the instant petition. She also tried reporting the incidents to the National Bureau of
Investigation (NBI) in Isabela, but, as of present, no positive report had been made identifying the
individuals who conducted the alleged surveillance, although available information specifically pointed
to the military and police units as the ones doing the surveillance.5

We also adopt the CA's summary of the petitioners' averments, as follows:

[Petitioners] categorically denied [respondent's] allegations that she was ever under surveillance by
the military and/or police under the command of [petitioners'] officials. x x x

xxx [Petitioners] also objected to the impleading of other [petitioners] in their official capacities,
allegedly under the doctrine of command responsibility. [Petitioners] maintained that the doctrine of
command responsibility is a substantive rule that establishes criminal or administrative liability that is
different from the purpose and approach under the Rule on the Writ of Amparo. Thus, it can only be
invoked in a full-blown criminal or administrative case and not in a summary amparo proceeding.

xxxx

[Petitioners] [also] alleged that upon receipt of the CA Resolution promulgated on April 22, 2014 x x
x, they immediately exerted efforts to conduct an inquiry and to gather information about the
purported threats on the life, liberty and security of the [respondent], to wit:

1. [Respondent] Secretary Gazmin maintained that, aside from sweeping allegations of

surveillance and gathering of information made by alleged unidentified operatives from
the military and the police on [respondent], the latter failed to particularize the
instances of [petitioner] Sec. Gazmin's involvement in said surveillance and information
gathering that would warrant his inclusion as party [respondent] in the case;

2. Upon receipt of the CA's April 22, 2014 Resolution, [petitioner] Gen. Emmanuel T.
Bautista issued a directive to the ISAFP Chief and Commander of the 5th Infantry
Division to verify the alleged surveillance operations conducted on [respondent]. In
addition, he enjoined the concerned unit/s to immediately investigate and/or submit to
the Higher Headquarters pertinent investigation results already conducted, if any,
relative to the complained acts. Finally, [petitioner] Gen. Bautista affirmed the
continuation of efforts to establish the surrounding circumstances of [respondent's]
allegations and to bring those responsible, including any military personnel, if shown to
have participated or to have had complicity in the commission of the alleged acts, to
the court of justice.

3. [Petitioner] Major Gen. Eduardo M. Año denied the ISAFP's involvement in the alleged
surveillance operations on and harassment of [respondent], and the inclusion of
[petitioner's] name in an alleged watchlist. In fact, petitioner Major Gen. Ano claimed
that he only came to know of [respondent's] name upon receipt of the Petition, which
he described as a mere product of a fabricated story intended to discredit him, in
particular, and the ISAFP as a whole. Nonetheless, upon obtaining a copy of
the Petition from the Judge Advocate General and the AFP Radio Message directing his
unit to submit results of the verification and inquiry on the Petition, [petitioner] Major
Gen. Ano immediately instructed the Group Commanders of the MIG 1 and 2 to
coordinate closely with the military and the PNP in the area to ensure that no
harassment or surveillance will be conducted on [respondent].

4. Upon receipt of [the CA Resolution], [petitioner] Lt. Gen. Hernando DCA Iriberri
immediately informed the Army Judge Advocate, the legal arm of the Philippine Army,
of the same. Having no information on the nature and circumstances surrounding the
case, he coordinated with his staff to look into the matter. Even prior to the radio
message from the Chief of Staff dated April 25, 2014, directing him to conduct
verification on the alleged surveillance on [respondent], [petitioner] Lt. Gen. Iriberri
had already taken the initiative to issue a directive to the Commanding General of the
5th Infantry Division in Gamu, lsabela, to verify and inquire into the allegations in
the Petitioner pertaining to any operation which may have been conducted or which
was in anyway (sic) related to the transgression of human rights of [respondent].
Finally, he undertook that, should there be any finding that any army personnel was
involved or had committed any of the allegations in the Petition, such personnel shall
be dealt with accordingly pursuant to existing laws and AFP regulations.

5. [Petitioner] Major Gen. Benito Antonio T. De Leon pointed out that he assumed
command of the 5th Infantry (STAR) Division only on April 4, 2014, thus, the alleged
surveillance operations would have been conducted prior to his assumption of said
 office. Since he assumed command of said unit, he had not given any orders to his men
to conduct surveillance or "casing" operations against any persons within the unit's area
of operation, nor did he receive any similar orders from his superiors. Nonetheless,
even prior to the receipt of the directive from the higher headquarters and a copy of
the Petition, [petitioner] Major Gen. De Leon, on his own volition and upon gaining
information through print media of the filing of the petition, exerted efforts to verify
with the intelligence unit commanders under his command whether there was any
standing instruction or order for them to conduct "casing" or surveillance operations
against [respondent], to which the commanders responded in the negative. In addition,
he averred that he immediately sent out radio messages to his subordinates to be law-
abiding and that human rights violations have no place in the military.

6. [Petitioner] PCSupt. Miguel de Mayo Laurel clarified that he was currently the Acting
Regional Director of the Police Regional Office 2, and not the Chief of the Isabela
Provincial Police Office, as indicated in the Petition. Said Petition was only emailed by
the Legal Service of Camp Crame to the Office of the Regional Legal Service, which
provided [petitioner] PCSupt. Laurel a copy of the same. [Petitioner] PCSupt. Laurel
maintained that their Office had no memorandum order relating to [respondent's]
allegations, nor are there any documents in their possession concerning [respondent].
Thus, PCSupt. Laurel immediately sent a Memorandum directing the Provincial Director
of the Isabela Police Provincial Office and the Chief of the Regional Intelligence Division
of Police Regional Office 2, two of the units mentioned in the Petition which were under
his operational control, to submit their comments and all relevant information and
pertinent documents relative to the allegations made by [respondent] and to identify
the persons who are responsible for the alleged harassment and threats on
[respondent's] life, liberty and security. In response thereto, PSSupt. Ramos, Jr., the
Provincial Director of the Isabela Provincial Police Office, reported that no directive was
ever issued to PNP Burgos, Isabela, to conduct a background investigation and to
confirm [respondent's] alleged status as a "Red Lawyer", or to threaten, intimidate or
harass, and conduct continuous surveillance on her. He likewise denied that his office
was in possession of any data or information which may or would likely violate
[respondent's] right to privacy or be used as a justification to harass or intimidate her.
Meanwhile, the Chief of the Regional Intelligence Division likewise denied the existence
of any order or directive to conduct a background investigation and to confirm
[respondent] as a "Red Lawyer", or that their office was in possession of any data or
information on [respondent]. Finally, [petitioner] PCSupt. Laurel ordered the Isabela
Provincial Police Office and the PSSupt. Ramos, Jr. to investigate the alleged threats on
the life, liberty and security of [respondent], and to identify the persons, if any, who
are responsible for the same.

[Petitioners] also noted that [respondent's] testimony consisted of mere unverified accounts from an
unknown person whose identity [respondent] did not want to reveal. Moreover, [respondent's]
allegations against [petitioners] and their respective offices were, at best, mere conclusions on her
part, a mere impression that [respondent] had based on the physical appearance of the men looking
for her, as described by her staff and according to her own personal assessment of the
circumstances. However, [respondent] could not categorically identify and link any of the said
individuals to [petitioners], claiming only that they were military-looking men.6

In substantiation of her petition, Atty. Salucon and her driver, Reggie Lutao Gamongan, testified. She
also submitted documentary evidence consisting of the several criminal informations filed in various
courts against her clients who were either political detainees, leaders or members of peasant and
other sectoral and people's organizations, human rights defenders or suspected NPA members, and
the complainants were either military or police officers and personnel.

On the part of the petitioners, Maj. Gen. De Leon and Sr. Supt. Ramos, Jr. testified. Submitted as
additional evidence by the petitioners were relevant memoranda, letters, and radio messages.
On March 12, 2015, the CA rendered the assailed decision granting the privilege of the writs
of amparo and habeas data,7 disposing thusly:

Considering the foregoing, we find that petitioner has substantially proven by substantial evidence
her entitlement to the writs of amparo and habeas data. Moreover, she was able to substantially
establish that respondents PCSupt. Laurel, Lt. Gen. Irriberi, Major Gen. Ano and Gen. Bautista are
responsible and accountable for the violation of respondent's rights to life, liberty and security on the
basis of the unjustified surveillance operations and acts of harassment and intimidation committed
against petitioner and/or lack of any fair and effective official investigation as to her allegations. On
the other hand, while it is true that respondent Major Gen. De Leon assumed his office only after the
occurrence of the subject incidents, he is still currently in the best position to conduct the necessary
investigation and perform all other responsibilities or obligations required, if any, by the writ
of amparo and habeas data. However, the instant petition should be dismissed as against respondent
President Aquino on the ground of immunity from suit, against respondent Secretary Gazmin for lack
of merit and against former PNP Dir. Gen. Purisima for being moot and academic.

WHEREFORE, the instant Petition for the Issuance of the Writs of Amparo and Habeas
Data is GRANTED.

Accordingly, respondents PCSupt. Miguel De Mayo Laurel, in his capacity as Acting Regional Director
of the Police Regional Office 2; Gen. Hernando Irriberi, in his capacity as the Commanding General of
the Philippine Army; Gen. Eduardo Año, in his capacity as the Commanding Officer of the ISAFP; and
Gen. Emmanuel Bautista, in his capacity as the Chief of Staff of the AFP, are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the life, liberty and security of petitioner
Atty. Maria Catherine Dannug-Salucon and the immediate members of her family, but also to conduct
further investigation to determine the veracity of the alleged surveillance operation and acts of
harassment and intimidation committed against petitioner, as well as to identify and find the
person/s responsible for said violations and bring them to competent court. The foregoing
respondents are likewise DIRECTED to SUBMIT a quarterly report of their actions to this Court, as a
way of PERIODIC REVIEW to enable this Court to monitor the action of respondents.

The above-named respondents are likewise DIRECTED to produce and disclose to this Court any and
all facts, information, statements, records, photographs, dossiers, and all other evidence,
documentary or otherwise, pertaining to petitioner Atty. Maria Catherine Dannug-Salucon, for
possible destruction upon order of this Court.

In the event that herein respondents no longer occupy their respective posts, the directives
mandated in this Decision are enforceable against the incumbent officials holding the relevant
positions. Failure to comply with the foregoing shall constitute contempt of court.

Finally, the instant petition is hereby DISMISSED with respect to the following respondents:

President Benigno Simeon C. Aquino III, on the ground of immunity from suits; Secretary of National
Defense Voltaire Gazmin, for lack of merit; and PNP Gen. Alan Purisima, for being moot and
academic.

SO ORDERED.8

On December 2, 2015, the CA denied the petitioners' motion for reconsideration filed by the Office of
the Solicitor General,9 ruling:

WHEREFORE, the instant Motion for Reconsideration is DENIED.

The undated Manifestation of the Solicitor General is NOTED. Accordingly, let the pleadings, orders
and notices be sent to the incumbent officials holding the relevant positions in this case.
SO ORDERED.10

Hence, this appeal.

Issues

The petitioners submit in support of their appeal that the issues to be considered and resolved by the
Court are the following:

a. Whether or not the CA erred in admitting and considering Atty. Salucon's evidence despite
being largely based on hearsay information;

b. Whether or not the CA erred in finding Atty. Salucon's evidence sufficient to justify the
granting of the privilege of the writs of amparo and habeas data;

c. Whether or not the CA erred in ruling that the hearsay evidence of Atty. Salucon, assuming its
admissibility for the sake of argument, satisfied the requirement of substantial evidence;

d. Whether or not the CA erred in granting the privilege of the writ of habeas data despite the
failure of Atty. Salucon to produce evidence showing that the petitioners were in possession of
facts, information, statements, photographs or documents pertaining to her; and

e. Whether or not the CA erred in directing the petitioners to exert extraordinary diligence and
efforts to conduct further investigation in order to determine the veracity of Atty. Salucon's
alleged harassment and surveillance.11

Ruling of the Court

The appeal lacks merit.

I.
The CA properly admitted Atty. Salucon's
proof even if it supposedly consisted
of circumstantial evidence and hearsay testimonies

In Razon, Jr. v. Tagitis,12 the Court adopted the standard of totality of evidence for granting the
privilege of the writ of amparo, explaining:

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.

xxxx

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
Witness 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. 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.13

Razon, Jr. v. Tagitis cited the ruling in Velasquez Rodriguez,14 wherein the Inter-American Court of
Human Rights (IACHR) took note that enforced disappearances could generally be proved only
through circumstantial or indirect evidence or by logical inference; and that it would be impossible
otherwise to prove that an individual had been made to disappear because of the State's virtual
monopoly of access to pertinent evidence, or because the deliberate use of the State's power to
destroy pertinent evidence was inherent in the practice of enforced disappearances. Hence, the
reliance on circumstantial evidence and hearsay testimony of witnesses is permissible. In this
respect, Razon, Jr. v. Tagitis observed that Velasquez Rodriguez rendered an informative discussion
on the appreciation of evidence to establish enforced disappearances, to wit:

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.15

Under the totality of evidence standard, hearsay testimony may be admitted and appreciated
depending on the facts and circumstances unique to each petition for the issuance of the writ
of amparo provided such hearsay testimony is consistent with the admissible evidence adduced. Yet,
such use of the standard does not unquestioningly authorize the automatic admissibility of hearsay
evidence in all amparo proceedings. The matter of the admissibility of evidence should still depend on
the facts and circumstances peculiar to each case. Clearly, the flexibility in the admissibility of
evidence adopted and advocated in Razon, Jr. v. Tagitis is determined on a case-to-case basis.

II.
The respondent presented substantial
evidence sufficient to justify
the issuance of the writ of amparo

The petition for the writ of amparo partakes of a summary proceeding that requires only substantial
evidence to make the appropriate interim and permanent reliefs available to the petitioner.
The Rules of  Court and jurisprudence have long defined substantial  evidence as such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.16 It is to be always
borne in mind that such proceeding is not an action to determine criminal guilt requiring proof
beyond reasonable doubt, or to allocate liability for damages based on preponderance of evidence, or
to adjudge administrative responsibility requiring substantial evidence.17

The facts and circumstances enumerated by the respondent's petition consisted of the following:
a) She was a human rights lawyer who had taken criminal cases in which the accused were political
detainees, including human rights defenders or suspected members of the CPP-NPA, and the
complainants were military or police officials or personnel;
   
b) Her paralegal William Bugatti informed her that he had personally observed various individuals
conducting surveillance operations of their movements (i.e., the respondent and Bugatti) specially during
the trial of a case in Ifugao involving a political detainee who was a leader of a people's or sectoral
organization;
   
c) On the day Bugatti informed her about his observation, and she instructed him to discover the names,
ranks, and addresses of the handlers of the Prosecution witness in the Ifugao case, he was fatally gunned
down;
   
d) On the same day Bugatti was gunned down, a client of hers who was working as a civilian asset for the
PNP Intelligence Section reported to her that the Regional Intelligence Unit of the PNP, through the PNP
Isabela Provincial Office, issued a directive to conduct a background investigation to confirm if she was a
"Red Lawyer;"
   
e) Said civilian asset also informed her that she was being secretly followed by ISAFP agents, and that
individuals who appeared to be military or police personnel had been asking people around her office
regarding her routine and whereabouts;
   
f) Her secretary informed her that a member of the CIS-CIDG and some purported military personnel had
gone to her law office on several occasions inquiring on her whereabouts;
   
g) On the same day said CIS-CIDG member went to her law office, she received a text message from the
Chief Investigator of the CIDG requesting, for the third time, a copy of the records of a case she was
handling;
   
h) Gamongan, her driver who testified in support of the petition, notified her that a vendor outside her law
office had told him that several motorcycle-riding personnel of the military had approached said vendor
on separate instances asking about her whereabouts and the persons she was with, her routine and
schedule, as well as the persons who were left at the law office whenever she went out;
   
i) Gamongan also testified about an incident that occurred while he was waiting outside her house in which
a motorcycle-riding man, who looked like he was military or police based on his haircut and demeanor,
had driven by her house twice intently observing him and the house "as if he wanted to do something
bad;"
   
j) A known civilian asset of the Military Intelligence Group (MIG) tried to convince her to have a meeting
with MIG Isabela so that he could explain why she was being watched; and
   
k) Upon her refusal of the invitation to meet, the civilian asset returned the next day telling her that she was
being watched by the MIG because of a land dispute case she was then handling for a client.18

Upon due consideration of the foregoing, the CA opined that it would be all the more difficult to
obtain direct evidence to prove the respondent's entitlement to the privilege of the writ
of amparo because no extrajudicial killing or enforced disappearance had yet occurred. Indeed, her
petition referred to acts that merely threatened to violate her rights to life, liberty and security, or
that could be appreciated only as preliminary steps to her probable extrajudicial killing or enforced
disappearance. Even so, it would be uncharacteristic for the courts, especially this Court, to simply
fold their arms and ignore the palpable threats to her life, liberty and security and just wait for the
irreversible to happen to her. The direct evidence might not come at all, given the abuse of the
State's power to destroy evidence being inherent in enforced disappearances or extrajudicial killings.

There was no question about the relevance of the hearsay testimony with which the respondent
sought to establish some of the facts and circumstances she alleged. Flexibility needed to be adopted
in the appreciation and consideration of such facts and circumstances despite hearsay being
inadmissible under other judicial situations. Such flexibility accorded with the following instruction
in Razon, Jr. v. Tagitis,19 to wit:

x x x 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.20

Verily, proceedings related to the petition for the issuance of the writ of amparo should allow not only
direct evidence, but also circumstantial evidence. The Rules of Court has made no distinction
between direct evidence of a fact and evidence of circumstances from which the existence of a fact
may be inferred.21 One kind of evidence is not superior to the other, for the trier of facts must weigh
the evidence upon admission. Only in the event of a conviction in a criminal case does the Rules of
Court require that the circumstantial evidence should consist of a combination of several
circumstances that "produce a conviction beyond reasonable doubt."22 Yet, under  Razon, Jr. v.
Tagitis, even hearsay testimony may be considered by the amparo court provided such testimony can
lead to conclusions consistent with the admissible evidence adduced.23 What the respondent
obviously established is that the threats to her right to life, liberty and security were neither
imaginary nor contrived, but real and probable. The gunning down of her paralegal Bugatti after he
had relayed to her his observation that they had been under surveillance was the immediate proof of
the threat. The purpose and noble objectives of the special rules on the writ of amparo may be
rendered inutile if the rigid standards of evidence applicable in ordinary judicial proceedings were not
tempered with such flexibility.
 III.
The CA had sufficient basis to issue the writ
of habeas data at the respondent's behest

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.24 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.25 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.26

In its decision, the CA, issuing the privilege of the writ of habeas data, directed the petitioners "to
produce and disclose to this Court any and all facts, information, statements, records, photographs,
dossiers, and all other evidence, documentary or otherwise, pertaining to petitioner Atty. Maria
Catherine Dannug-Salucon, for possible destruction upon order of this Court.''

The directive was factually and procedurally warranted. There was no question that the civilian asset
of the PNP Intelligence Section relayed to the respondent that there was a standing order issued by
the PNP Isabela Provincial Police Office to the PNP office in Burgos, Isabela to conduct a background
investigation in order to confirm if she was a "Red Lawyer." She was also under actual surveillance by
different individuals who looked like they were members of the military or police establishments. The
objective of these moves taken against her was unquestionably to establish a pattern of her
movements and activities, as well as to obtain the records of the cases she was handling for her
various clients. These and other established circumstances fully warranted within the context of
the Rule on the Writ of Habeas Data the directive of the CA for the handing over and destruction of
all information and data on her in order to protect her privacy and security.

IV.
The directive of the CA for the petitioners
to exert extraordinary diligence in conducting
further investigations was valid and proper

Section 9 of the Rule on the Writ of Amparo requires the amparo respondent to 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 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.

Section 17 of the Rule on the Writ of Amparo ordains 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.

In Razon, Jr. v. Tagitis,27 the Court spelled out the two-fold burden that the public authorities had to
discharge in situations of extrajudicial killings and enforced disappearances, viz.:

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.28

In Ladaga v. Mapagu,29 the Court precisely indicated that the failure of an amparo petitioner to

establish by substantial evidence the involvement of military or police forces was not a hindrance to
the Court ordering the conduct of further investigations, to wit:

Emphasizing the extraordinary character of the amparo remedy, the Court ruled in the cases of
Roxas and Razon, Jr. that an amparo petitioner's failure to establish by substantial evidence the
involvement of government forces in the alleged violation of rights is never a hindrance for the Court
to order the conduct of further investigation where it appears that the government did not observe
extraordinary diligence in the performance of its duty to investigate the complained abduction and
torture or enforced disappearance. The Court directed further investigation in the case
of Roxas because the modest efforts of police investigators were effectively putting petitioner's right
to security in danger with the delay in identifying and apprehending her abductors. In Razon, Jr., the
Court found it necessary to explicitly order the military and police officials to pursue with
extraordinary diligence the investigation into the abduction and disappearance of a known activist
because not only did the police investigators conduct an incomplete and one-sided investigation but
they blamed their ineffectiveness to the reluctance and unwillingness of the relatives to cooperate
with the authorities.30

It should not be a surprise at all, therefore, that the CA commanded the petitioners as
the amparo respondents “to exert extraordinary diligence and efforts, not only to protect the life,
liberty and security of petitioner Atty. Maria Catherine Dannug-Salucon and the immediate members
of her family, but also to conduct further investigation to determine the veracity of the alleged
surveillance operation and acts of harassment and intimidation committed against petitioner, as well
as to identify and find the person/s responsible for said violations and bring them to competent
court." Needless to stress, the directive was unassailable.

The petitioners (and their successors in office), by merely issuing orders to their subordinates under
their respective commands and relying on the latter's reports without conducting independent
investigations on their own to determine the veracity of the respondent's allegations, did not
discharge the two-fold burden. Thereby, they did not exercise extraordinary diligence. They are
reminded of the following dictum regarding the conduct of investigations that the Court pronounced
in In the Matter of the Petition for the Writ of Amparo and Habeas Data in favor of Noriel Rodriguez: 31
More importantly, respondents also neglect to address our ruling that the failure to conduct a fair
and effective investigation similarly amounted to a violation of or threat to Rodriguez's rights to life,
liberty, and security. The writ's curative role is an acknowledgment that the violation of the right to
life, liberty, and security may be caused not only by a public official's act, but also by his omission.
Accountability may attach to respondents who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but have failed to
discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.
The duty to investigate must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective.32

The petitioners' recommendation for the creation of an independent body to investigate both the
harassments suffered by the respondent and the surveillance conducted against her is rejected as an
act of evasion. The military and police establishments certainly had the competence and resources to
conduct such investigation. Although they have predicated the recommendation on what transpired
in Roxas v. Arroyo,33 the awkward situation sought to be avoided under Roxas v. Arroyo -"wherein
the very persons alleged to be involved in an enforced disappearance or extrajudicial killing are, at
the same time, the very ones tasked by law to investigate the matter"34 - did not obtain herein. For
one, there was no conclusive proof of the actual authorship of the unauthorized surveillance
conducted against the respondent. Thus, it was speculative on the part of the petitioners and their
successors in office to simply say that the investigation, if conducted by them, would be biased or
one-sided. They could not escape the responsibility of conducting the investigation with extraordinary
diligence by deflecting the responsibility to other investigatory agencies of the Government. The duty
of extraordinary diligence pertains to them, and to no other. Moreover, their higher ranks or positions
in the AFP and PNP hierarchies put them in the best position to obtain or acquire information and to
ensure that the investigation to be conducted would quickly yield results in view of the investigation
going to focus on their subordinate personnel.

It would be within the context of Section 9 of the Rule on the Writ of Amparo if the petitioners and
their successors in office should instead exhibit a readiness and willingness to undertake the
investigations if only to shed light soon enough on whether or not their subordinates and personnel
over whom they exercised authority and control had been involved at all in the surveillance of the
respondent and the making of threats against her personal security.

WHEREFORE, the Court DENIES the petition for review on certiorari for its lack of

merit; AFFIRMS the decision and resolution promulgated by the Court of Appeals on March 12, 2015
and December 2, 2015, respectively, in CA-G.R. SP No. 00053-W/A; and REMANDS this case to the
Court of Appeals for the monitoring of the investigation to be hereafter undertaken in accordance
with the decision promulgated by the Court of Appeals on March 12, 2015, and for the validation of
the results of the investigation.

SO ORDERED.

September 19, 2017

G.R. No. 230324

LORIE MARIE TOMAS CALLO, Petitioner

vs.
COMMISSIONER JAIME H. MORENTE, BUREAUS OF IMMIGRATION, OIC ASSOCIATES COMMISSIONERS
BUREAU OF IMMIGRATION and BRIAN ALAS, BUREAU OF IMMIGRATION , Respondents

DECISION

CARPIO, Acting C.J.:

The Case

This is a petition for a writ of amparo (with Prayer to Issue Interim Reliefs of Immediate Release of Danielle Tan
Parker from Detention) under A.M. No. 07-9-12-SC (The Rule on the Writ of Amparo). Petitioner Lorie Marie Tomas
Callo (Callo) seeks the immediate release of Danielle Tan Parker from the Immigration Detention Facility, Camp
Bagong Diwa in Bicutan, Taguig City.

The Facts

Danielle Tan Parker (Parker) is a holder of Philippine Passport No. XX5678508 issued by the Department of Foreign
Affairs (DFA) on 5 March 2010 and valid until 4 March 2015.

On 15 January 2013, Parker was charged for deportation for being an undesirable, undocumented, and overstaying
alien, in violation of Section 3 7 (a)(7) of the Philippine Immigration Act of 1940, as amended, in relation to Rule XVI,
Office Memorandum No. ADD-01-004. It was alleged that Danielle Nopuente was a fugitive from justice in the
United States of America with an outstanding arrest warrant issued against her. Subsequently, on 24 January 2013,
a Summary Deportation Order (SDO) was issued against Danielle Nopuente, also known as Isabelita
Nopuente and Danielle Tan Parker, upon verification that she arrived in the Philippines on 23 March 2011 under the
Balikbayan Program, with an authorized stay of a period of one year. Parker was not in the list of approved
applications of the DFA for dual citizenship and her American Passport had been revoked by the United States
Department of State. Thus, she was considered an undocumented, undesirable, and overstaying alien, in violation
of the Philippine Immigration Act of 1940.

On 5 June 2014, pursuant to the SDO issued by the Bureau of Immigration, Parker was arrested in Tagaytay City on
the premise that Danielle Nopuente and Danielle Tan Parker are one and the same person. She was then taken to
the Immigration Detention Facility in Bicutan, Taguig City. She is still currently detained in the Immigration Detention
Facility as the deportation was not carried out due to the fact that Parker is charged with falsification and use of
falsified documents before Branch 4, Municipal Trial Court in Cities, Davao City.

On 12 September 2014, Parker, as petitioner, filed a Petition for Habeas Corpus before Branch 266, Regional Trial
Court (RTC) of Pasig City. The Bureau of Immigration was able to produce the body of Parker before the RTC. The
Bureau of Immigration then alleged that as the SDO had become final and executory, it served as the legal authority
to detain Parker. The Bureau of Immigration also argued that Parker cannot be released or deported without the
final disposition of her pending criminal case in Davao City.

The RTC dismissed the petition, finding that the detention of Parker was legal.  Parker then appealed the case to the
1

Court of Appeals (CA). The CA affirmed the RTC and found that Parker failed to prove that she was a Filipino citizen
to warrant judicial intervention through habeas corpus.  The CA gave weight to the Certification dated 20 June 2015
2

issued by the Office of the Consular Affairs of the DFA that there is "no available data" regarding any
record/information from the year 1990 onwards of Philippine Passport No. :XX5678508. Parker no longer appealed
the denial of the issuance of the writ of habeas corpus and the decision of the CA became final and executory on 5
January 2016. 3

On 23 March 2017, Callo filed this petition for a writ of amparo with prayer to issue Interim Reliefs of Immediate
Release of Danielle Tan Parker from Detention. Callo argues that Parker is a natural-born Filipino citizen and thus,
there is no reason for her to be detained by the Bureau of Immigration.

The Issue
The only issue in this case is whether or not the right to life, liberty, and security of Parker is threatened by the
respondents to warrant the issuance of the writ of amparo and subsequently the award of the interim reliefs.

The Ruling of the Court

The petition has no merit.

Callo seeks the issuance of the writ of amparo and the interim reliefs available under A.M. No. 07-9-12-SC for the
immediate release of Parker. Callo alleges that Parker is a natural-born Filipino citizen and thus should not have
been detained by the Bureau of Immigration. Moreover, Callo alleges that the kife of Parker is endangered in the
detention center; and thus a writ of amparo with the interim reliefs prayed for should be issued by this Court.

We disagree.

We disagree.

The protective writ of amparo is a judicial remedy to expeditiously provide relief to violations of a person's
constitutional right to life, liberty, and security, and more specifically, to address the problem of extralegal killings
and enforced disappearances or threats thereof. Section 1 of A.M. No. 07-9-12-SC provides:

Sec. 1. Petition. - The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis

supplied)

It is clear from the above-quoted provision that the writ of amparo covers extralegal killings and enforced
disappearances or threats thereof  Enforced disappearance is defmed under Republic Act (RA) No. 9851,  Section
4 5

3(g) of which provides:

(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or abduction of persons by, or
with the authorization, support or acquiescence of a State or a political organization followed by a refusal to
acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with
the intention of removing from the protection of the law for a prolonged period of time.

This Court also had the opportunity to define extralegal killings and enforced disappearance:

Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial
proceedings. On the other hand, enforced disappearance has been defined by the Court 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.6

In Navia v. Pardico,  this Court clarified that with the enactment of RANo. 9851, the Rule on the Writ of Amparo is
7

now a procedural law anchored, not only on the constitutional right to life, liberty, and security, but also on a
concrete statutory definition of "enforced or involuntary disappearance." Further, elements constituting enforced
disappearance as defined under RA No. 9851 were clearly laid down by this Court, viz:

(a) that there be an arrest, detention, abduction or any form of deprivation of liberty; ·

(b) that it be carried out by, or with the authorization, support or acquiescence of, the State or a political
organization;
(c) that it be followed by the State or political organization's refusal to acknowledge or give information on the fate or
whereabouts of the person subject of the amparo petition; and,

(d) that the intention for such refusal is to remove subject person from the protection of the law for a prolonged
period oftime. 8

It is clear that the elements of enforced disappearance are not attendant in this case. There is also no threat of such
enforced disappearance.  While there is indeed a detention carried out by the State through the Bureau of
1âwphi1

Immigration, the third and fourth elements are not present. There is no refusal to acknowledge the deprivation of
freedom or refusal to give information on the whereabouts of Parker because as Callo admits, Parker is detained in
the Immigration Detention Facility of the Bureau of Immigration. The Bureau of Immigration also does not deny this.
In fact, the Bureau of Immigration had produced the body of Parker before the RTC in the proceedings for the writ of
habeas corpus previously initiated by Parker herself.  Similarly, there is no intention to remove Parker from the
9

protection of the law for a prolonged period of time. As the Bureau of Immigration explained, Parker has a pending
criminal case against her in Davao City, which prevents the Bureau of Immigration from deporting her from the
country.

Simply put, we see no enforced or involuntary disappearance, or any threats thereof, that would warrant the
issuance of the writ of amparo. For the issuance of the writ, it is not sufficient that a person's life is endangered. It is
even not sufficient to allege and prove that a person has disappeared. It has to be shown by the required quantum
of proof that the disappearance was carried out by, or with the authorization, support or acquiescence of the
government or a political organization, and that there is a refusal to acknowledge the same or to give information on
the fate or whereabouts of the missing persons.  In this case, Parker has not disappeared. Her detention has been
10

sufficiently justified by the Bureau of Immigration, given that there is an SDO and a pending criminal case against
her.

Callo contends that there is no cause to detain Parker because Parker, a natural-born Filipino citizen, is a different
person from Danielle Nopuente, the person against whom the SDO was issued.

We disagree.

Callo has failed to prove that Danielle Tan Parker and Danielle Nopuente are two different persons. In particular, we
give weight to the fact that the DFA issued a certificate verifying that there is no available data on Passport No.
XX5678508, which was the Philippine passport used by Parker.  Moreover, the Certificate of Live Birth,  which
11 12

purportedly shows that Parker was born in the Philippines on 21 March 1975 of Filipino parents, was only registered
on 4 January 2010. There was no explanation given as to why Parker's birth was registered only after almost 35
years. Moreover, Callo only alleges facts from the year 2005, allegedly for purposes of brevity.  We do not see any
13

reason why facts surrounding the existence of Parker should only be presented from 2005. In fact, the only period
that is thoroughly discussed about her is from 2010 to 2011. To prove that Parker and Nopuente are two different
persons, the life and existence of Parker should have been alleged and proven since birth. In this case, there is no
allegation nor any proof as to who Parker was, or what she had been doing, before 2011. Taking all these
circumstances into perspective, Parker had failed to sufficiently prove that she is a different person from Danielle
Nopuente.

Callo contends that Parker's life is endangered in the Immigration I Detention Facility because of the threats against
her by her co-detainees and the living conditions of the facility which pose health problems for Parker. Unfortunately,
these allegations - even if proven - will not support the issuance of a writ of amparo. To repeat, the remedy of a writ
of amparo is an extraordinary remedy that is meant to balance the government's awesome power and to curtail
human rights abuses.  The writ .covers extralegal killings and enforced disappearances or threats thereo1 f as
14

specifically defined under RA No. 9851. The circumstances of Parker, as alleged by Callo, do not meet the
requirements for the issuance of the kit of amparo.

Finally, we note that the petition for the writ of amparo was filed by Callo. However, there was no allegation of her
relationship to Parker.  In Boac v. Cadapan,  we emphasized the importance of the exclusive and successive order
15 16

of who can file a petition for a writ of amparo. We held:

Petitioners finally point out that the parents of Sherlyn and Karen do not have the requisite standing to file the
amparo petition on behalf of Merino. They call attention to the fact that in the amparo petition, the parents of Sherlyn
and Karen merely indicated that they were "concerned with Manuel Merino" as basis for filing the petition on his
behalf.

Section 2 of the Rule on the Writ of Amparo provides:

The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; (b) Any
ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or
affinity, in default of those mentioned in the preceding paragraph; or

(c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate
family or relative of the aggrieved party.1âwphi1

Indeed, the parents of Sherlyn and Karen failed to allege that there were no known members of the immediate
family or relatives of Merino. The exclusive and successive order mandated by the above-quoted provision must be
followed. The order of priority is not without reason - "to prevent the indiscriminate and groundless filing of
petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party."

The Court notes that the parents of Sherlyn and Karen also filed the petition for habeas corpus on Merino's behalf.
No objection was raised therein for, in a habeas corpus proceeding, any person may apply for the writ on behalf of
the aggrieved party.

It is thus only with respect to the amparo petition that the parents of Sherlyn and Karen are precluded from filing the
application on Merino's behalf as they are not authorized parties under the Rule. (Emphasis supplied)

Thus, while "any person" may file a petition for the writ of habeas corpus, in a petition for the writ of amparo, the
order of priority on who can file the petition should be strictly followed. In this case, there was no allegation nor proof
that Parker had no immediate family members or any ascendant, descendant, or collateral relative within the fourth
civil degree of consanguinity or affinity. In fact, no allegation was made on any of the familial relationship of Parker
as only her whereabouts from 2011 were alleged and discussed. Therefore, based on the order of priority, Callo had
no legal standing to file this petition.

Given that there is no basis for the issuance of the writ of amparo, the interim reliefs sought for are also denied.
Moreover, we see no need to address the other issues raised by Callo in this petition, specifically, the condition of
the Immigration Detention Facility and the treatment of Parker in said detention center. A petition for the writ of
amparo is not the proper action to resolve such issues.

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

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,  otherwise known as the "Rule on the Writ of Habeas Data." Petitioners herein assail the July 27,
1

2012 Decision  of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which
2

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 Facebook  profile.
3

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,  but were, in fact, viewable by any Facebook user.
4 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 ICM  Directress. They
6
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.  In it, Tan prayed that defendants therein be enjoined from implementing the sanction that precluded Angela
7

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-CEB  on the basis of the following considerations:
8

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.

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.  It is an independent and summary remedy designed to protect the image,
11

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."  The writ, however, will not issue on the basis merely of an
13

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.  Thus, the
14

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,  bridging the gap created by physical space; and (2) that any information
16
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."  As 17

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.  (emphasis Ours) Clearly then, the privilege of the Writ of Habeas Datamay also be availed of in
18

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 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."  It does not necessarily mean that the activity must be done in pursuit of a business. What
19

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,  where he explained the three strands of the right to privacy, viz: (1) locational or situational
20

privacy;  (2) informational privacy; and (3) decisional privacy.  Of the three, what is relevant to the case at bar is the
21 22

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.  In the same vein, the South African High Court, in its Decision in the landmark case, H v. W,  promulgated
25 26

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,  some of which would have otherwise remained personal.
27

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,  but without defeating its purpose, Facebook was armed with different privacy
30

tools designed to regulate the accessibility of a user’s profile  as well as information uploaded by the user. In H v.
31

W,  the South Gauteng High Court recognized this ability of the users to "customize their privacy settings," but did
32

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."  Ideally, the selected setting will be based on one’s desire to interact with others,
34

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.

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.  And this intention can materialize in cyberspace through
36

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.  Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads
38

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.  Ultimately, they posit that their children’s disclosure was
39

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,  although who these five are do not appear on the records.
40

Escudero, on the other hand, stated in her affidavit  that "my students showed me some pictures of girls cladin
41

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,  and 43

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-Perez  is most instructive:
44

[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. Maxwell  held that "[t]he more open the method of transmission is, the less privacy one can
46

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"  the former’s post, or "tag"  others who are not Facebook friends
49 50

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."  Thus, it is suggested, that a profile, or even a post, with visibility set at "Friends Only" cannot easily, more so
51

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 given to them by persons who had
legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough,
however, neither the minors nor their parents imputed any violation of privacy against the students who showed the
images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted the
photographs. In fact, what petitioners attributed to respondents as an act of offensive disclosure was no more than
the actuality that respondents appended said photographs in their memorandum submitted to the trial court in
connection with Civil Case No. CEB-38594.  These are not tantamount to a violation of the minor’s informational
52

privacy rights, contrary to petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor students
scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors
enrolled in a conservative institution. However, the records are bereft of any evidence, other than bare assertions
that they utilized Facebook’s privacy settings to make the photos visible only to them or to a select few. Without
proof that they placed the photographs subject of this case within the ambit of their protected zone of privacy, they
cannot now insist that they have an expectation of privacy with respect to the photographs in question.

Had it been proved that the access tothe pictures posted were limited to the original uploader, through the "Me Only"
privacy setting, or that the user’s contact list has been screened to limit access to a select few, through the
"Custom" setting, the result may have been different, for in such instances, the 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."  This means that self-regulation on the
53

part of OSN users and internet consumers ingeneral is the best means of avoiding privacy rights violations.  As a 54

cyberspace communitymember, one has to be proactive in protecting his or her own privacy.  It is in this regard that
55
many OSN users, especially minors, fail.Responsible social networking or observance of the "netiquettes"  on the 56

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.  Furthermore, considering the complexity of the cyber world and its pervasiveness,as well as the
58

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.  Accordingly, they should be cautious enough to control their privacy and to exercise sound discretion
1âwphi1

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 which is outside the ambit of their control. Furthermore, and more
importantly, information, otherwise private, voluntarily surrendered by them can be opened, read, or copied by third
parties who may or may not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities and must
not be negligent in protecting their rights. Equity serves the vigilant. Demanding relief from the courts, as here,
requires that claimants themselves take utmost care in safeguarding a right which they allege to have been violated.
These are indispensable. We cannot afford protection to persons if they themselves did nothing to place the matter
within the confines of their private zone. OSN users must be mindful enough to learn the use of privacy tools, to use
them if they desire to keep the information private, and to keep track of changes in the available privacy settings,
such as those of Facebook, especially because Facebook is notorious for changing these settings and the site's
layout often.

In finding that respondent STC and its officials did not violate the minors' privacy rights, We find no cogent reason to
disturb the findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of the
Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

October 8, 2014

G.R. No. 203254

DR. JOY MARGARTE LEE, Petitioner

vs.
P/SUPT. NERI A ILAGAN, Respondent
 DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari  assailing the Decision  dated August 30, 2012 of the Regional
1 2

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 Data  dated June 22, 2012, Ilagan alleged that he and petitioner
3

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.  On August 23, 2011, Lee confronted Ilagan at the latter's office regarding a purported sex
4

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.  During the confrontation, Ilagan allegedly
5

slammed Lee’s head against a wall inside his office and walked away.  Subsequently, Lee utilized the said video as
6

evidence in filing various complaints against Ilagan, namely: (a) a criminal complaint for violation of Republic Act No.
9262,  otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004," before the Office of
7

the City Prosecutor of Makati; and (b) an administrative complaint for grave misconduct before the National Police
Commission (NAPOLCOM).  Ilagan claimed that Lee’s acts of reproducing the subject video and threatening to
8

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 Data  dated June 25, 2012, directing
10

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 Return  dated July 2, 2012, Lee admitted that she indeed kept the memory card of the digital camera
11

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 Decision  dated August 30, 2012, the RTC granted the privilege of the writ of habeas data in Ilagan’s favor, and
13

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.  It was conceptualized as a judicial remedy enforcing the right to privacy, most
16

especially the right to informational privacy of individuals,  which is defined as "the right to control the collection,
17

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.  In
20

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
1âwphi1

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.

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 conclude  that Lee was going to use the subject video in order to achieve unlawful ends -
22

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.  Hence, due to the insufficiency of
23

the allegations as well as the glaring absence of substantial evidence, the Court finds it proper to reverse the R TC
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. 12-71527 is 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.

G.R. No. 193636               July 24, 2012

MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of Ilocos Norte, and P/SUPT.
WILLIAM 0. FANG, in his capacity as Chief, Intelligence Division, PNP Provincial Office, Ilocos
Norte, Respondents.

DECISION

SERENO, J.:

Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed pursuant to Rule 19 of the
1 

Rule on the Writ of Habeas Data, seeking a review of the 9 September 2010 Decision in Special Proc. No. 14979 of
2 

the Regional Trial Court, First Judicial Region, Laoag City, Branch 13 (RTC Br. 13). The questioned Decision denied
3 

petitioner the privilege of the writ of habeas data.4

At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa) was the Mayor of Dingras,
Ilocos Norte. Meanwhile, respondent Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-
5 

Charge, and respondent Police Superintendent (P/SUPT.) William O. Fang was the Chief of the Provincial
Investigation and Detective Management Branch, both of the Ilocos Norte Police Provincial Office. 6

On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative Order No. 275 (A.O. 275),
"Creating an Independent Commission to Address the Alleged Existence of Private Armies in the Country." The 7 

body, which was later on referred to as the Zeñarosa Commission, was formed to investigate the existence of
8 

private army groups (PAGs) in the country with a view to eliminating them before the 10 May 2010 elections and
dismantling them permanently in the future. Upon the conclusion of its investigation, the Zeñarosa Commission
9 

released and submitted to the Office of the President a confidential report entitled "A Journey Towards H.O.P.E.:
The Independent Commission Against Private Armies’ Report to the President" (the Report). 10

Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–Ilocos Norte) conducted a series of
surveillance operations against her and her aides, and classified her as someone who keeps a PAG. Purportedly
11  12 

without the benefit of data verification, PNP–Ilocos Norte forwarded the information gathered on her to the Zeñarosa
Commission, thereby causing her inclusion in the Report’s enumeration of individuals maintaining PAGs. More
13  14 

specifically, she pointed out the following items reflected therein:

(a) The Report cited the PNP as its source for the portion regarding the status of PAGs in the Philippines. 15

(b) The Report stated that "x x x the PNP organized one dedicated Special Task Group (STG) for each
private armed group (PAG) to monitor and counteract their activities." 16

(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP and captioned as "Status of
PAGs Monitoring by STGs as of April 19, 2010," which classifies PAGs in the country according to region,
indicates their identity, and lists the prominent personalities with whom these groups are associated. The 17 

first entry in the table names a PAG, known as the Gamboa Group, linked to herein petitioner Gamboa. 18

(d) Statistics on the status of PAGs were based on data from the PNP, to wit:

The resolutions were the subject of a national press conference held in Malacañang on March 24, 2010 at
which time, the Commission was also asked to comment on the PNP report that out of one hundred
seventeen (117) partisan armed groups validated, twenty-four (24) had been dismantled with sixty-seven
(67) members apprehended and more than eighty-six (86) firearms confiscated.

Commissioner Herman Basbaño qualified that said statistics were based on PNP data but that the more
significant fact from his report is that the PNP has been vigilant in monitoring the activities of these armed
groups and this vigilance is largely due to the existence of the Commission which has continued
communicating with the Armed Forces of the Philippines (AFP) and PNP personnel in the field to constantly
provide data on the activities of the PAGs. Commissioner Basbaño stressed that the Commission’s efforts
have preempted the formation of the PAGs because now everyone is aware that there is a body monitoring
the PAGs movement through the PNP. Commissioner Lieutenant General Edilberto Pardo Adan also
clarified that the PAGs are being destabilized so that their ability to threaten and sow fear during the election
has been considerably weakened. 19
 (e) The Report briefly touched upon the validation system of the PNP:

Also, in order to provide the Commission with accurate data which is truly reflective of the situation in the field, the
PNP complied with the Commission’s recommendation that they revise their validation system to include those
PAGs previously listed as dormant. In the most recent briefing provided by the PNP on April 26, 2010, there are one
hundred seven (107) existing PAGs. Of these groups, the PNP reported that seven (7) PAGs have been
reorganized. 20

On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of the Report naming
Gamboa as one of the politicians alleged to be maintaining a PAG. Gamboa averred that her association with a
21 

PAG also appeared on print media. Thus, she was publicly tagged as someone who maintains a PAG on the basis
22 

of the unverified information that the PNP-Ilocos Norte gathered and forwarded to the Zeñarosa Commission. As a 23 

result, she claimed that her malicious or reckless inclusion in the enumeration of personalities maintaining a PAG as
published in the Report also made her, as well as her supporters and other people identified with her, susceptible to
harassment and police surveillance operations. 24

Contending that her right to privacy was violated and her reputation maligned and destroyed, Gamboa filed a
Petition dated 9 July 2010 for the issuance of a writ of habeas data against respondents in their capacities as
officials of the PNP-Ilocos Norte. In her Petition, she prayed for the following reliefs: (a) destruction of the unverified
25 

reports from the PNP-Ilocos Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c)
rectification of the damage done to her honor; (d) ordering respondents to refrain from forwarding unverified reports
against her; and (e) restraining respondents from making baseless reports. 26

The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13, which issued the corresponding
writ on 14 July 2010 after finding the Petition meritorious on its face. Thus, the trial court (a) instructed respondents
27 

to submit all information and reports forwarded to and used by the Zeñarosa Commission as basis to include her in
the list of persons maintaining PAGs; (b) directed respondents, and any person acting on their behalf, to cease and
desist from forwarding to the Zeñarosa Commission, or to any other government entity, information that they may
have gathered against her without the approval of the court; (c) ordered respondents to make a written return of the
writ together with supporting affidavits; and (d) scheduled the summary hearing of the case on 23 July 2010. 28

In their Return of the Writ, respondents alleged that they had acted within the bounds of their mandate in conducting
the investigation and surveillance of Gamboa. The information stored in their database supposedly pertained to two
29 

criminal cases in which she was implicated, namely: (a) a Complaint for murder and frustrated murder docketed as
NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder, frustrated murder and direct assault upon a
person in authority, as well as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-04-
INV-10-A-00009. 30

Respondents likewise asserted that the Petition was incomplete for failing to comply with the following requisites
under the Rule on the Writ of Habeas Data: (a) the manner in which the right to privacy was violated or threatened
with violation and how it affected the right to life, liberty or security of Gamboa; (b) the actions and recourses she
took to secure the data or information; and (c) 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. They also contended that the
31 

Petition for Writ of Habeas Data, being limited to cases of extrajudicial killings and enforced disappearances, was
not the proper remedy to address the alleged besmirching of the reputation of Gamboa. 32

RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the Petition. The trial court categorically
33 

ruled that the inclusion of Gamboa in the list of persons maintaining PAGs, as published in the Report, constituted a
violation of her right to privacy, to wit:

In this light, it cannot also be disputed that by her inclusion in the list of persons maintaining PAGs, Gamboa’s right
to privacy indubitably has been violated. The violation understandably affects her life, liberty and security
enormously. The untold misery that comes with the tag of having a PAG could even be insurmountable. As she
essentially alleged in her petition, she fears for her security that at any time of the day the unlimited powers of
respondents may likely be exercised to further malign and destroy her reputation and to transgress her right to life.

By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that there was certainly intrusion
into Gamboa’s activities. It cannot be denied that information was gathered as basis therefor. After all, under
Administrative Order No. 275, the Zeñarosa Commission was tasked to investigate the existence of private armies
in the country, with all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative
Code of 1987.

x x x           x x x          x x x

By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she accused respondents, who are
public officials, of having gathered and provided information that made the Zeñarosa Commission to include her in
the list. Obviously, it was this gathering and forwarding of information supposedly by respondents that petitioner
barks at as unlawful. x x x.34

Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the ground that Gamboa failed to
prove through substantial evidence that the subject information originated from respondents, and that they
forwarded this database to the Zeñarosa Commission without the benefit of prior verification. The trial court also
35 

ruled that even before respondents assumed their official positions, information on her may have already been
acquired. Finally, it held that the Zeñarosa Commission, as the body tasked to gather information on PAGs and
36 

authorized to disclose information on her, should have been impleaded as a necessary if not a compulsory party to
the Petition. 37

Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010, raising the following assignment of
38 

errors:

1. The trial court erred in ruling that the Zeñarosa Commission be impleaded as either a necessary or
indispensable party;

2. The trial court erred in declaring that Gamboa failed to present sufficient proof to link respondents as the
informant to [sic] the Zeñarosa Commission;

3. The trial court failed to satisfy the spirit of Habeas Data;

4. The trial court erred in pronouncing that the reliance of the Zeñarosa Commission to [sic] the PNP as
alleged by Gamboa is an assumption;

5. The trial court erred in making a point that respondents are distinct to PNP as an agency. 39

On the other hand, respondents maintain the following arguments: (a) Gamboa failed to present substantial
evidence to show that her right to privacy in life, liberty or security was violated, and (b) the trial court correctly
dismissed the Petition on the ground that she had failed to present sufficient proof showing that respondents were
the source of the report naming her as one who maintains a PAG. 40

Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the mandate to dismantle PAGs in
the country should be done in accordance with due process, such that the gathering and forwarding of unverified
information on her must be considered unlawful. She also reiterates that she was able to present sufficient
41 

evidence showing that the subject information originated from respondents. 42

In determining whether Gamboa should be granted the privilege of the writ of habeas data, this Court is called upon
to, first, unpack the concept of the right to privacy; second, explain the writ of habeas data as an extraordinary
remedy that seeks to protect the right to informational privacy; and finally, contextualize the right to privacy vis-à-vis
the state interest involved in the case at bar.

The Right to Privacy

The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right. This Court,
in Morfe v. Mutuc, thus enunciated:
43 

The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in
disposing of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of
assets and liabilities is violative of the constitutional right to privacy. There is much to be said for this view of Justice
Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it
must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of
all freedom." As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most
comprehensive of rights and the right most valued by civilized men."

The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique
individual whose claim to privacy and interference demands respect. xxx.

x x x           x x x          x x x

x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five members of the Court,
stated: "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in
any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth
Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." After referring to various American Supreme Court decisions, Justice
Douglas continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate
one."

x x x           x x x          x x x

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this
private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly
important as modern society has developed. All the forces of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference between a democratic and a
totalitarian society." (Emphases supplied)
44 

In Ople v. Torres, this Court traced the constitutional and statutory bases of the right to privacy in Philippine
45 

jurisdiction, to wit:

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several
provisions of our Constitution. It is expressly recognized in section 3 (1) of the Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law.

Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
 x x x           x x x          x x x

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health as may be provided by law.

x x x           x x x          x x x

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "every person shall
respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public
officer or employee or any private individual liable for damages for any violation of the rights and liberties of another
person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a
crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act
and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy
of certain information.

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by
the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. x x x. (Emphases supplied)
46 

Clearly, the right to privacy is considered a fundamental right that must be protected from intrusion or constraint.
However, in Standard Chartered Bank v. Senate Committee on Banks, this Court underscored that the right to
47 

privacy is not absolute, viz:

With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is
not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights
of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to
thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the people to access
information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions.
In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state
interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no infringement of
the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to
ensure that the government agencies involved in regulating banking transactions adequately protect the public who
invest in foreign securities. Suffice it to state that this purpose constitutes a reason compelling enough to proceed
with the assailed legislative investigation.
48

Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh
both notions. In these cases, although considered a fundamental right, the right to privacy may nevertheless
succumb to an opposing or overriding state interest deemed legitimate and compelling.

The Writ of Habeas Data

The writ of habeas data 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
49 

in instances in which such information is being collected through unlawful means in order to achieve unlawful
ends. It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus
50 

between the right to privacy on the one hand, and the right to life, liberty or security on the other. Section 1 of the
Rule on the Writ of Habeas Data reads:
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 information regarding the person, family,
home and correspondence of the aggrieved party.

The notion of informational privacy is still developing in Philippine law and jurisprudence. Considering that even the
Latin American habeas data, on which our own Rule on the Writ of Habeas Data is rooted, finds its origins from the
European tradition of data protection, this Court can be guided by cases on the protection of personal data decided
51 

by the European Court of Human Rights (ECHR). Of particular note is Leander v. Sweden, in which the ECHR
52 

balanced the right of citizens to be free from interference in their private affairs with the right of the state to protect
its national security. In this case, Torsten Leander (Leander), a Swedish citizen, worked as a temporary replacement
museum technician at the Naval Museum, which was adjacent to a restricted military security zone. He was refused
53 

employment when the requisite personnel control resulted in an unfavorable outcome on the basis of information in
the secret police register, which was kept in accordance with the Personnel Control Ordinance and to which he was
prevented access. He claimed, among others, that this procedure of security control violated Article 8 of the
54 

European Convention of Human Rights on the right to privacy, as nothing in his personal or political background
55 

would warrant his classification in the register as a security risk. 56

The ECHR ruled that the storage in the secret police register of information relating to the private life of Leander,
coupled with the refusal to allow him the opportunity to refute the same, amounted to an interference in his right to
respect for private life. However, the ECHR held that the interference was justified on the following grounds: (a) the
57 

personnel control system had a legitimate aim, which was the protection of national security, and (b) the Personnel
58 

Control Ordinance gave the citizens adequate indication as to the scope and the manner of exercising discretion in
the collection, recording and release of information by the authorities. The following statements of the ECHR must
59 

be emphasized:

58. The notion of necessity implies that the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Gillow judgment of 24
November 1986, Series A no. 109, p. 22, § 55).

59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the scope of
which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of
the interference involved. In the instant case, the interest of the respondent State in protecting its national
security must be balanced against the seriousness of the interference with the applicant’s right to respect for
his private life.

There can be no doubt as to the necessity, for the purpose of protecting national security, for the Contracting States
to have laws granting the competent domestic authorities power, firstly, to collect and store in registers not
accessible to the public information on persons and, secondly, to use this information when assessing the suitability
of candidates for employment in posts of importance for national security.

Admittedly, the contested interference adversely affected Mr. Leander’s legitimate interests through the
consequences it had on his possibilities of access to certain sensitive posts within the public service. On the other
hand, the right of access to public service is not as such enshrined in the Convention (see, inter alia, the Kosiek
judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and, apart from those consequences, the
interference did not constitute an obstacle to his leading a private life of his own choosing.

In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in
assessing the pressing social need in the present case, and in particular in choosing the means for achieving the
legitimate aim of protecting national security, was a wide one.

x x x           x x x          x x x

66. The fact that the information released to the military authorities was not communicated to Mr. Leander cannot by
itself warrant the conclusion that the interference was not "necessary in a democratic society in the interests of
national security", as it is the very absence of such communication which, at least partly, ensures the efficacy of the
personnel control procedure (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no.
28, p. 27, § 58).
The Court notes, however, that various authorities consulted before the issue of the Ordinance of 1969, including
the Chancellor of Justice and the Parliamentary Ombudsman, considered it desirable that the rule of communication
to the person concerned, as contained in section 13 of the Ordinance, should be effectively applied in so far as it did
not jeopardise the purpose of the control (see paragraph 31 above).

67. The Court, like the Commission, thus reaches the conclusion that the safeguards contained in the Swedish
personnel control system meet the requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide
margin of appreciation available to it, the respondent State was entitled to consider that in the present case the
interests of national security prevailed over the individual interests of the applicant (see paragraph 59 above). The
interference to which Mr. Leander was subjected cannot therefore be said to have been disproportionate to the
legitimate aim pursued. (Emphases supplied)

Leander illustrates how the right to informational privacy, as a specific component of the right to privacy, may yield
to an overriding legitimate state interest. In similar fashion, the determination of whether the privilege of the writ of
habeas data, being an extraordinary remedy, may be granted in this case entails a delicate balancing of the alleged
intrusion upon the private life of Gamboa and the relevant state interest involved.

The collection and forwarding of information by the PNP vis-à-vis the interest of the state to dismantle private
armies.

The Constitution explicitly mandates the dismantling of private armies and other armed groups not recognized by
the duly constituted authority. It also provides for the establishment of one police force that is national in scope and
60 

civilian in character, and is controlled and administered by a national police commission. 61

Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a legitimate state
aim, which is to investigate the existence of PAGs with the ultimate objective of dismantling them permanently.

To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the powers of an investigative
body, including the power to summon witnesses, administer oaths, take testimony or evidence relevant to the
investigation and use compulsory processes to produce documents, books, and records. A.O. 275 likewise
62 

authorized the Zeñarosa Commission to deputize the Armed Forces of the Philippines, the National Bureau of
Investigation, the Department of Justice, the PNP, and any other law enforcement agency to assist the commission
in the performance of its functions. 63

Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all laws and ordinances
relative to the protection of lives and properties; (b) maintain peace and order and take all necessary steps to
ensure public safety; and (c) investigate and prevent crimes. 64

Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions accorded to the
Zeñarosa Commission and the PNP, the latter collected information on individuals suspected of maintaining PAGs,
monitored them and counteracted their activities. One of those individuals is herein petitioner Gamboa.
65 

This Court holds that Gamboa was able to sufficiently establish that the data contained in the Report listing her as a
PAG coddler came from the PNP. Contrary to the ruling of the trial court, however, the forwarding of information by
the PNP to the Zeñarosa Commission was not an unlawful act that violated or threatened her right to privacy in life,
liberty or security.

The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically
created for the purpose of investigating the existence of these notorious groups. Moreover, the Zeñarosa
Commission was explicitly authorized to deputize the police force in the fulfillment of the former’s mandate, and thus
had the power to request assistance from the latter.

Following the pronouncements of the ECHR in Leander, the fact that the PNP released information to the Zeñarosa
Commission without prior communication to Gamboa and without affording her the opportunity to refute the same
cannot be interpreted as a violation or threat to her right to privacy since that act is an inherent and crucial
component of intelligence-gathering and investigation.  Additionally, Gamboa herself admitted that the PNP had a
1âwphi1

validation system, which was used to update information on individuals associated with PAGs and to ensure that the
data mirrored the situation on the field. Thus, safeguards were put in place to make sure that the information
66 

collected maintained its integrity and accuracy.

Pending the enactment of legislation on data protection, this Court declines to make any further determination as to
the propriety of sharing information during specific stages of intelligence gathering. To do otherwise would supplant
the discretion of investigative bodies in the accomplishment of their functions, resulting in an undue encroachment
on their competence.

However, to accord the right to privacy with the kind of protection established in existing law and jurisprudence, this
Court nonetheless deems it necessary to caution these investigating entities that information-sharing must observe
strict confidentiality. Intelligence gathered must be released exclusively to the authorities empowered to receive the
relevant information. After all, inherent to the right to privacy is the freedom from "unwarranted exploitation of one’s
person or from intrusion into one’s private activities in such a way as to cause humiliation to a person’s ordinary
sensibilities."
67

In this case, respondents admitted the existence of the Report, but emphasized its confidential nature.  That it was
1âwphi1

leaked to third parties and the media was regrettable, even warranting reproach. But it must be stressed that
Gamboa failed to establish that respondents were responsible for this unintended disclosure. In any event, there are
other reliefs available to her to address the purported damage to her reputation, making a resort to the extraordinary
remedy of the writ of habeas data unnecessary and improper.

Finally, this Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in the list
of individuals maintaining PAGs made her and her supporters susceptible to harassment and to increased police
surveillance. In this regard, respondents sufficiently explained that the investigations conducted against her were in
relation to the criminal cases in which she was implicated. As public officials, they enjoy the presumption of
regularity, which she failed to overcome.

It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the alleged
intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information
against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied.

WHEREFORE, the instant petition for review is DENIED. The assailed Decision in Special Proc. No. 14979 dated 9
September 2010 of the Regional Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the privilege of the writ
of habeas data, is AFFIRMED.

G.R. No. 211010

VICTORIA SEGOVIA, RUEL LAGO, CLARIESSE JAMI CHAN, REPRESENTING THE CARLESS PEOPLE OF
THE PHILIPPINES; GABRIEL ANASTACIO, REPRESENTED BY HIS MOTHER GRACE ANASTACIO, DENNIS
ORLANDOSANGALANG, REPRESENTED BY HIS MOTHER MAY ALILI SANGALANG, MARIA PAULINA
CASTANEDA, REPRESENTED BY HER MOTHERATRICIAANN CASTANEDA, REPRESENTING THE
CHILDREN OF THE PHILIPPINES AND CHILDREN OF THE FUTURE; AND RENATO PINEDA, JR., ARON
KERR MENGUITO, MAY ALILI SANGALANG, AND GLYNDA BATHAN BATERINA, REPRESENTING
CAROWNERS WHO WOULD RATHER NOT HA VE CARS IF GOOD PUBLIC TRANSPORTATION WERE SAFE,
CONVENIENT, ACCESSIBLE AND RELIABLE, Petitioners
vs
THE CLIMATE CHANGE COMMISSION, REPRESENTED BY ITS CHAIRMAN, HIS EXCELLENCY BENIGNO S.
AQUINO III, AND ITS COMMISSIONERS MARY ANN LUCILLE SERING, HEHERSON ALVAREZANDNADAREV
SANO; DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC) REPRESENTED BY ITS
SECRETARY, HONORABLE JOSEPH ABAYA; DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS (DPWH)
AND THE ROAD BOARD, REPRESENTED BY ITS SECRETARY, HONORABLE ROGELIO SINGSON;
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG), REPRESENTED BY ITS SECRETARY,
HONORABLE MANUEL ROXAS; DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR),
REPRESENTED BY ITS SECRETARY, HONORABLE RAMON PAJE; DEPARTMENT OF BUDGET AND
MANAGEMENT (DBM), REPRESENTED BY ITS SECRETARY, HONORABLE FLORENCIO ABAD;
METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA), REPRESENTED BY ITS CHAIRMAN,
FRANCIS TOLENTINO; DEPARTMENT OF AGRICULTURE (DA), REPRESENTED BY ITS SECRETARY,
HONORABLE PROCESO ALCALA; AND JOHN DOES, REPRESENTING AS YET UNNAMED LOCAL
GOVERNMENT UNITS AND THEIR RESPECTIVE LOCAL CHIEF EXECUTIVE, JURIDICAL ENTITIES, AND
NATURAL PERSONS WHO FAIL OR REFUSE TO IMPLEMENT THE LAW OR COOPERATE IN THE
IMPLEMENTATION OF THE LAW, Respondents

DECISION

CAGUIOA, J.:

This is a petition for the issuance of writs of kalikasan and continuing mandamus to compel the implementation of
the following environmental laws and executive issuances - Republic Act No. (RA) 9729  (Climate Change Act), and
1

RA 8749  (Clean Air Act); Executive Order No. 774  (BO 774); AO 254, s. 2009  (AO 254); and Administrative Order
2 3 4

No. 171, s. 2007  (AO 171).

5

Accordingly, the Petitioners seek to compel: (a) the public respondents to: (1) implement the Road Sharing Principle
in all roads; (2) divide all roads lengthwise, one-half (½) for all-weather sidewalk and bicycling, the other half for
Filipino-made transport vehicles; (3) submit a time-bound action plan to implement the Road Sharing Principle
throughout the country; (b) the Office of the President, Cabinet officials and public employees of Cabinet members
to reduce their fuel consumption by fifty percent (50%) and to take public transportation fifty percent (50%) of the
time; (c) Public respondent DPWH to demarcate and delineate the road right-of-way in all roads and sidewalks;
and (d) Public respondent DBM to instantly release funds for Road Users' Tax. 6

The Facts

To address the clamor for a more tangible response to climate change, Former President Gloria Macapagal-Arroyo
issued AO 171 which created the Presidential Task Force on Climate Change (PTFCC) on February 20, 2007. This
body was reorganized through BO 774, which designated the President as Chairperson, and cabinet secretaries as
members of the Task Force. EO 774 expressed what is now referred to by the petitioners as the "Road Sharing
Principle." Its Section 9(a) reads:

Section 9. Task Group on Fossil Fuels. - (a) To reduce the consumption of fossil fuels, the Department of
Transportation and Communications (DOTC) shall lead a Task Group to reform the transportation sector. The new
paradigm in the movement of men and things must follow a simple principle: "Those who have less in wheels must
have more in road." For this purpose, the system shall favor nonmotorized locomotion and collective transportation
system (walking, bicycling, and the man-powered mini-train).

In 2009, AO 254 was issued, mandating the DOTC (as lead agency for the Task Group on Fossil Fuels or TGFF) to
formulate a national Environmentally Sustainable Transport Strategy (EST) for the Philippines. The Road Sharing
Principle is similarly mentioned, thus:
SECTION 4. Functions of the TGFF- In addition to the functions provided in EO 774, the TGFF shall initiate and
pursue the formulation of the National EST Strategy for the Philippines.

Specifically, the TGFF shall perform the following functions:

(a) Reform the transport sector to reduce the consumption of fossil fuels. The new paradigm in the movement of
men and things must follow a simple principle: "Those who have less in wheels must have more in road." For this
purpose, the system shall favor non-motorized locomotion and collective transportation system (walking, bicycling,
and the manpowered mini-train).

xxxx

Later that same year, Congress passed the Climate Change Act. It created the Climate Change Commission which
absorbed the functions of the PTFCC and became the lead policy-making body of the government which shall be
tasked to coordinate, monitor and evaluate the programs and action plans of the government relating to climate
change. 7

Herein petitioners wrote respondents regarding their pleas for implementation of the Road Sharing Principle,
demanding the reform of the road and transportation system in the whole country within thirty (30) days from receipt
of the said letter - foremost, through the bifurcation of roads and the reduction of official and government fuel
consumption by fifty percent (50%).  Claiming to have not received a response, they filed this petition.
8

The Petition

Petitioners are Carless People of the Philippines, parents, representing their children, who in turn represent
"Children of the Future, and Car-owners who would rather not have cars if good public transportation were safe,
convenient, accessible, available, and reliable". They claim that they are entitled to the issuance of the extraordinary
writs due to the alleged failure and refusal of respondents to perform an act mandated by environmental laws, and
violation of environmental laws resulting in environmental damage of such magnitude as to prejudice the life, health
and property of all Filipinos. 9

These identified violations  include: (a) The government's violation of "atmospheric trust" as provided under Article
10

XI, Section 1 of the Constitution, and thoughtless extravagance in the midst of acute public want under Article 25 of
the Civil Code for failure to reduce personal and official consumption of fossil fuels by at least fifty percent
(50%); (b) DOTC and DPWH's failure to implement the Road Sharing Principle under EO 774; (c) DA's failure to
devote public open spaces along sidewalks, roads and parking lots to sustainable urban farming as mandated by
Section 12(b)  f EO 774; (d) DILG's failure to coordinate with local government units (LGUs) to guide them on the
11

Road Sharing Principle under Section 9(g)  of EO 774; (e) DENR's failure to reduce air pollutant emissions; and
12

lastly, (f) DBM's failure to make available Road Users' Tax for purposes stated in Section 9(e)  of EO 774.
13

In gist, petitioners contend that respondents' failure to implement the foregoing laws and executive issuances
resulted in the continued degradation of air quality, particularly in Metro Manila, in violation of the petitioners'
constitutional right to a balanced and healthful ecology,  and may even be tantamount to deprivation of life, and of
14

life sources or "land, water, and air" by the government without due process of law.  They also decry the "unequal"
15

protection of laws in the prevailing scheme, claiming that ninety-eight percent (98%) of Filipinos are discriminated
against by the law when the car-owning two percent (2%) is given almost all of the road space and while large
budgets are allocated for construction and maintenance of roads, hardly any budget is given for sidewalks, bike
lanes and non-motorized transportation systems. 16

Respondents, through the Office of the Solicitor General, filed their Comment seeking the outright dismissal of the
petition for lack of standing and failure to adhere to the doctrine of hierarchy of courts.  Moreover, respondents
17

argue that petitioners are not entitled to the reliefs prayed for.

Specifically, respondents assert that petitioners are not entitled to a writ of kalikasan because they failed to show
that the public respondents are guilty of an unlawful act or omission; state the environmental law/s violated; show
environmental damage of such magnitude as to prejudice the life, health or property of inhabitants of two or more
cities; and prove that non- implementation of Road Sharing Principle will cause environmental damage.
Respondents likewise assert that petitioners are similarly not entitled to a

Continuing Mandamus because: (a) there is no showing of a direct or personal injury or a clear legal right to the

thing demanded; (b) the writ will not compel a discretionary act or anything not in a public officer's duty to
do (i.e. the manner by which the Road Sharing Principle will be applied; and to compel DA to exercise jurisdiction
over roadside lands); and (c) DBM cannot be compelled to make an instant release of funds as the same requires
an appropriation made by law (Article VI, Section 29[1] of the Constitution) and the use of the Road Users' Tax
(more appropriately, the Motor Vehicle Users' Charge) requires prior approval of the Road Board. 18

In any event, respondents denied the specific violations alleged in the petition, stating that they have taken and
continue to take measures to improve the traffic situation in Philippine roads and to improve the environment
condition - through projects and programs such as: priority tagging of expenditures for climate change adaptation
and mitigation, the Integrated Transport System which is aimed to decongest major thoroughfares, Truck Ban, Anti-
Smoke Belching Campaign, Anti-Colorum, Mobile Bike Service Programs, and Urban Re-Greening Programs.
These projects are individually and jointly implemented by the public respondents to improve the traffic condition
and mitigate the effects of motorized vehicles on the environment.  Contrary to petitioners' claims, public
19

respondents assert that they consider the impact of the transport sector on the environment, as shown in the
Philippine National Implementation Plan on Environment Improvement in the Transport Sector which targets air
pollution improvement actions, greenhouse gases emission mitigation, and updating of noise pollution standards for
the transport sector.

In response, petitioner filed their Reply, substantially reiterating the arguments they raised in the Petition.

ISSUES

From the foregoing submissions, the main issues for resolution are:

1. Whether or not the petitioners have standing to file the petition;

2. Whether or not the petition should be dismissed for failing to adhere to the doctrine of hierarchy of courts; and

3. Whether or not a writ of Kalikasan and/or Continuing Mandamus should issue.

RULING

The petition must be dismissed.

Procedural Issues

Citing Section 1, Rule 7 of the Rules of Procedure for Environmental Cases  (RPEC), respondents argue that the
20

petitioners failed to show that they have the requisite standing to file the petition, being representatives of a rather
amorphous sector of society and without a concrete interest or injury.  Petitioners counter that they filed the suit as
21

citizens, taxpayers, and representatives; that the rules on standing had been relaxed following the decision
in Oposa v. Factoran;  and that, in any event, legal standing is a procedural technicality which the Court may set
22

aside in its discretion.

23

The Court agrees with the petitioners' position. The RPEC did liberalize the requirements on standing, allowing the
filing of citizen's suit for the enforcement of rights and obligations under environmental laws.  This has been
24

confirmed by this Court's rulings in Arigo v. Swift,  and International Service for the Acquisition of Agri-BioTech
25

Applications, Inc. v. Greenpeace Southeast Asia (Philippines).  However, it bears noting that there is a difference
26

between a petition for the issuance of a writ of kalikasan, wherein it is sufficient that the person filing represents the
inhabitants prejudiced by the environmental damage subject of the writ;  and a petition for the issuance of a writ of
27

continuing mandamus, which is only available to one who is personally aggrieved by the unlawful act or omission.  28

Respondents also seek the dismissal of the petition on the ground that the petitioners failed to adhere to the
doctrine of hierarchy of courts, reasoning that since a petition for the issuance of a writ of kalikasan must be filed
with the Supreme Court or with any of the stations of the Court of Appeals,  then the doctrine of hierarchy of courts
29

is applicable.  Petitioners, on the other hand, cite the same provision and argue that direct recourse to this Court is
30

available, and that the provision shows that the remedy to environmental damage should not be limited to the
territorial jurisdiction of the lower courts.
31

The respondents' argument does not persuade. Under the RPEC, the writ of kalikasan is an extraordinary remedy
covering environmental damage of such magnitude that will prejudice the life, health or property of inhabitants in two
or more cities or provinces. It is designed for a narrow but special purpose: to accord a stronger protection for
environmental rights, aiming, among others, to provide a speedy and effective resolution of a case involving the
violation of one's constitutional right to a healthful and balanced ecology that transcends political and territorial
boundaries, and to address the potentially exponential nature of large-scale ecological threats.  At the very least,
32

the magnitude of the ecological problems contemplated under the RPEC satisfies at least one of the exceptions to
the rule on hierarchy of courts, as when direct resort is allowed where it is dictated by public welfare.  Given that the
1âwphi1

RPEC allows direct resort to this Court,  it is ultimately within the Court's discretion whether or not to accept
33

petitions brought directly before it.

Requisites for issuance of Writs of

Kalikasan and Continuing
Mandamus

We find that the petitioners failed to establish the requisites for the issuance of the writs prayed for.

For a writ of kalikasan to issue, the following requisites must concur:

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 of inhabitants in two or more cities or provinces.34

It is well-settled that a party claiming the privilege for the issuance of a writ of kalikasan has to show that a law, rule
or regulation was violated or would be violated. 35

In this case, apart from repeated invocation of the constitutional right to health and to a balanced and healthful
ecology and bare allegations that their right was violated, the petitioners failed to show that public respondents are
guilty of any unlawful act or omission that constitutes a violation of the petitioners' right to a balanced and healthful
ecology.

While there can be no disagreement with the general propositions put forth by the petitioners on the correlation of
air quality and public health, petitioners have not been able to show that respondents are guilty of violation or
neglect of environmental laws that causes or contributes to bad air quality. Notably, apart from bare allegations,
petitioners were not able to show that respondents failed to execute any of the laws petitioners cited. In fact, apart
from adducing expert testimony on the adverse effects of air pollution on public health, the petitioners did not go
beyond mere allegation in establishing the unlawful acts or omissions on the part of the public respondents that
have a causal link or reasonable connection to the actual or threatened violation of the constitutional right to a
balanced and healthful ecology of the magnitude contemplated under the Rules, as required of petitions of this
nature. 36

Moreover, the National Air Quality Status Report for 2005-2007 (NAQSR) submitted by the petitioners belies their
claim that the DENR failed to reduce air pollutant emissions - in fact, the NAQSR shows that the National Ambient
Total Suspended Particulates (TSP) value used to determine air quality has steadily declined from 2004 to
2007,  and while the values still exceed the air quality guideline value, it has remained on this same downward trend
37

until as recently as 2011.38

On the other hand, public respondents sufficiently showed that they did not unlawfully refuse to implement or
neglect the laws, executive and administrative orders as claimed by the petitioners. Projects and programs that seek
to improve air quality were undertaken by the respondents, jointly and in coordination with stakeholders, such as:
priority tagging of expenditures for climate change adaptation and mitigation, the Integrated Transport System which
is aimed to decongest major thoroughfares, Truck Ban, Anti-Smoke Belching Campaign, Anti-Colorum, Mobile Bike
Service Programs, and Urban Re-Greening Programs.

In fact, the same NAQSR submitted by the petitioners show that the DENR was, and is, taking concrete steps to
improve national air quality, such as information campaigns, free emission testing to complement the anti-smoke-
belching program and other programs to reduce emissions from industrial smokestacks and from open burning of
waste.  The efforts of local governments and administrative regions in conjunction with other · executive agencies
39

and stakeholders are also outlined. 40

Similarly, the writ of continuing mandamus cannot issue.

Rule 8, Section 1 of the RPEC lays down the requirements for a petition for continuing mandamus as follows:

RULES
WRIT OF CONTINUING MANDAMUS

SECTION 1. Petition for continuing mandamus.-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.

First, the petitioners failed to prove direct or personal injury arising from acts attributable to the respondents to be
entitled to the writ.  While the requirements of standing had been liberalized in environmental cases, the general
1âwphi1

rule of real party-in-interest applies to a petition for continuing mandamus. 41

Second, the Road Sharing Principle is precisely as it is denominated - a principle. It cannot be considered an
absolute imposition to encroach upon the province of public respondents to determine the manner by which this
principle is applied or considered in their policy decisions. Mandamus lies to compel the performance of duties that
are purely ministerial in nature, not those that are discretionary,  and the official can only be directed
42

by mandamus to act but not to act one way or the other. The duty being enjoined in mandamus must be one
according to the terms provided in the law itself. Thus, the recognized rule is that, in the performance of an official
duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act
one way or the other. 43

This Court cannot but note that this is precisely the thrust of the petition - to compel the respondents to act one way
to implement the Road Sharing Principle - to bifurcate all roads in the country to devote half to sidewalk and
bicycling, and the other to Filipino-made transport - when there is nothing in EO 774, AO 254 and allied issuances
that require that specific course of action in order to implement the same. Their good intentions notwithstanding, the
petitioners cannot supplant the executive department's discretion with their own through this petition for the
issuance of writs of kalikasan and continuing mandamus.

In this case, there is no showing of unlawful neglect on the part of the respondents to perform any act that the law
specifically enjoins as a duty - there being nothing in the executive issuances relied upon by the petitioners that
specifically enjoins the bifurcation of roads to implement the Road Sharing Principle. To the opposite, the
respondents were able to show that they were and are actively implementing projects and programs that seek to
improve air quality. 1âwphi1
At its core, what the petitioners are seeking to compel is not the performance of a ministerial act, but a discretionary
act - the manner of implementation of the Road Sharing Principle. Clearly, petitioners' preferred specific course of
action (i.e. the bifurcation of roads to devote for all-weather sidewalk and bicycling and Filipino-made transport
vehicles) to implement the Road Sharing Principle finds no textual basis in law or executive issuances for it to be
considered an act enjoined by law as a duty, leading to the necessary conclusion that the
continuing mandamus prayed for seeks not the implementation of an environmental law, rule or regulation, but to
control the exercise of discretion of the executive as to how the principle enunciated in an executive issuance
relating to the environment is best implemented. Clearly, the determination of the means to be taken by the
executive in implementing or actualizing any stated legislative or executive policy relating to the environment
requires the use of discretion. Absent a showing that the executive is guilty of "gross abuse of discretion, manifest
injustice or palpable excess of authority,"  the general rule applies that discretion cannot be checked via this petition
44

for continuing mandamus. Hence, the continuing mandamus cannot issue. 1âwphi1

Road Users' Tax

Finally, petitioners seek to compel DBM to release the Road Users' Tax to fund the reform of the road and
transportation system and the implementation of the Road Sharing Principle.

It bears clarifying that the Road Users' Tax mentioned in Section 9(e) of EO 774, apparently reiterated in Section 5
of AO 254 is the Special Vehicle Pollution Control Fund component of the Motor Vehicle Users' .
Charge ("MVUC') imposed on owners of motor vehicles in RA 8794, otherwise known as the Road Users' Tax Law.
By the express provisions of the aforementioned law, the amounts in the special trust accounts of the MVUC are
earmarked solely and used exclusively (1) for road maintenance and the improvement of the road drainage, (2) for
the installation of adequate and efficient traffic lights and road safety devices, and (3) for the air pollution control,
and their utilization are subject to the management of the Road Board.  Verily, the petitioners' demand for the
45

immediate and unilateral release of the Road Users' Tax by the DBM to support the petitioners' operationalization of
this Road Sharing Principle has no basis in law. The executive issuances relied upon by the petitioner do not rise to
the level of law that can supplant the provisions of RA 8794 that require the approval of the Road Board for the use
of the monies in the trust fund. In other words, the provisions on the release of funds by the DBM as provided in EO
774 and AO 254 are necessarily subject to the conditions set forth in RA 8794. Notably, RA 9729, as amended by
RA 10174, provides for the establishment for the People's Survival Fund  that may be tapped for adaptation
46

activities, which similarly require approval from the PSF Board. 47

That notwithstanding, the claim made by the petitioners that hardly any budget is allotted to mitigating environmental
pollution is belied by the priority given to programs aimed at addressing and mitigating climate change that the DBM
and the CCC had been tagging and tracking as priority expenditures since 2013.  With the coordination of the DILG,
48

this priority tagging and tracking is cascaded down to the local budget management of local government units. 49

Other causes of action

As previously discussed, the petitioners' failure to show any violation on the part of the respondents renders it
unnecessary to rule on other allegations of violation that the petitioners rely upon as causes of action against the
public respondents.

In fine, the allegations and supporting evidence in the petition fall short in showing an actual or threatened violation
of the petitioners' constitutional right to a balanced and healthful ecology arising from an unlawful act or omission by,
or any unlawful neglect on the part of, the respondents that would warrant the issuance of the writs prayed for.

WHEREFORE, the petition is DISMISSED.

 G.R. No. 231164, March 20, 2018

MAYOR TOMAS R. OSMEÑA, IN HIS CAPACITY AS CITY MAYOR OF CEBU, Petitioner, v. JOEL

CAPILI GARGANERA, FOR AND ON HIS BEHALF, AND IN REPRESENTATION OF THE PEOPLE
OF THE CITIES OF CEBU AND TALISAY, AND THE FUTURE GENERATIONS, INCLUDING THE
UNBORN, Respondent.

DECISION

TIJAM, J.:

Before Us is Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, as provided under
the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) filed by petitioner Mayor
Tomas R. Osmeña, in his capacity as City Mayor of Cebu (Mayor Osmeña), which seeks to reverse or
set aside the Decision2 dated December 15, 2016 and Resolution3 dated March 14, 2017 of the Court
of Appeals (CA) in CA G.R. SP No. 004WK, that granted the privilege of the writ of kalikasan and
ordered Mayor Osmeña, and/or his representatives, to permanently cease and desist from dumping
or disposing garbage or solid waste at the Inayawan landfill and to continue to rehabilitate the same.

The Antecedents

On April 6, 1993, the Department of Environment and Natural Resources (DENR) issued an
Environmental Compliance Certificate (ECC) to the Solid Waste Sanitary Landfill Project at Inayawan
landfill proposed by the Metro Cebu Development Project Office (MCDPO). Thereafter, the Inayawan
landfill served as the garbage disposal area of Cebu City.4

Sometime in 2011, the Cebu City Local Government (City Government) resolved to close the
Inayawan landfill per Cebu City Sangguniang Panlunsod (SP) Resolution and Executive Order of
former Cebu City Mayor Michael Rama (former Mayor Rama).5

Subsequently, SP Resolution No. 12-0582-20116 dated August 24, 2011, was issued to charge the
amount of P1,204,500 in the next supplemental budget to cover the cost in the preparation of
closure and rehabilitation plan of Inayawan landfill.7 Another SP Resolution with No. 12-2617
20128 dated March 21, 2012 was issued to proceed with the bidding process for the said preparation
of closure and rehabilitation plan. As a result, the Inayawan landfill was partially closed and all
wastes from Cebu City were disposed in a privately operated landfill in Consolacion.9

On June 15, 2015, through former Mayor Rama's directive, Inayawan landfill was formally closed.10

In 2016, however, under the administration of Mayor Osmeña, the City Government sought to
temporarily open the Inayawan landfill, through a letter dated June 8, 2016, by then Acting Cebu
City Mayor Margot Osmeña (Acting Mayor Margot) addressed to Regional Director Engr. William
Cuñado (Engr. Cuñado) of the Environmental Management Bureau (EMB) of the DENR.11 In response
thereto, Engr. Cuñado invited Acting Mayor Margot to a technical conference. Thereafter, on June 27,
2016, Acting Mayor Margot sent another letter to Engr. Cuñado submitting the City Government's
commitments for the establishment of a new Solid Waste Management System pursuant to the
mandate under Republic Act (R.A.) No. 9003,12 and accordingly, requested for the issuance of a
Notice to Proceed for the temporary reopening of the Inayawan landfill.13

In his reply letter dated June 27, 2016, Engr. Cuñado informed Acting Mayor Margot that although
the EMB had no authority to issue the requested notice, it interposed no objection to the proposed
temporary opening of the Inayawan landfill provided that the Cebu City will faithfully comply with all
its commitments and subject to regular monitoring by the EMB.14

Thus, in July 2016, the Inayawan landfill was officially re-opened by Acting Mayor Margot.15
On September 2, 2016, a Notice of Violation and Technical Conference16 was issued by the EMB to
Mayor Osmeña, regarding City Government's operation of the Inayawan Landfill and its violations of
the ECC.

On September 6, 2016, the Department of Health (DOH) issued an Inspection Report17 wherein it

recommended, among others, the immediate closure of the landfill due to the lack of sanitary
requirements, environmental, health and community safety issues, as conducted by the DOH
Regional Sanitary Engineer, Henry D. Saludar.18

On September 23, 2016, Joel Capili Garganera for and on his behalf, and in representation of the
People of the Cities of Cebu and Talisay and the future generations, including the unborn
(respondent) filed a petition for writ of kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) before the CA.19

Respondent asserted that the continued operation of the Inayawan landfill causes serious
environmental damage which threatens and violates their right to a balanced and healthful
ecology.20 Respondent also asserted that the Inayawan landfill has already outgrown its usefulness
and has become ill-suited for its purpose.21 Respondent further asserted that its reopening and
continued operation violates several environmental laws and government regulations, such as: R.A.
9003; R.A. 8749 or the "Philippine Clean Air Act of 1999"; R.A. 9275 or the "Philippine Clean Water
Act of 2004"; Presidential Decree (P.D.) No. 856 or the "Code on Sanitation of the Philippines"; and
DENR Administrative Order (DAO) No. 2003-30 or the "Implementing Rules and Regulation (IRR) for
the Philippine Environmental Impact Statement System."22

The CA, in a Resolution dated October 6, 2016, granted a writ of kalikasan, required petitioner to file
a verified return and a summary hearing was set for the application of TEPO.23

In petitioner's verified return, he alleged that respondent failed to comply with the condition
precedent which requires 30-day notice to the public officer concerned prior to the filing of a citizens
suit under R.A. 9003 and R.A. 8749. Respondent further alleged that Inayawan landfill operated as
early as 1998 and it conformed to the standards and requirements then applicable.24

The CA, in a Decision25 dated December 15, 2016, granted the privilege of the writ of kalikasan which
ordered Mayor Osmeña and/or his representatives to permanently cease and desist from dumping or
disposing of garbage or solid waste at the Inayawan landfill and to continue to rehabilitate the same.
The dispositive portion of the CA Decision, provides:

WHEREFORE, in view of the foregoing premises, the privilege of the writ of kalikasan is hereby
GRANTED. Accordingly, pursuant to Section 15, Rule 7 of the RPEC:

1) the respondent Mayor and/or his representatives are ordered to permanently cease and desist
from dumping or disposing or garbage or solid waste at the Inayawan landfill;
2) the respondent Mayor and/for his representatives are ordered to continue the rehabilitation of the
Inayawan landfill;
3) the DENR-EMB is directed to regularly monitor the City Government's strict compliance with the
Court's judgment herein;
4) in case of non-compliance, the DENR-EMB is directed to file and/or recommend the filing of
appropriate criminal, civil and administrative charges before the proper authorities against the
responsible persons; and
5) the DENR-EMB is ordered to submit to the Court a monthly progress report on the City
Government's compliance/non-compliance until such time that the rehabilitation of the Inayawan
landfill is complete and sufficient according to the standards of the DENR-EMB.

SO ORDERED.26
Mayor Osmeña's motion for reconsideration was likewise denied by the CA in its Resolution27 dated
March 14, 2017, to wit:

WHEREFORE, in view of the foregoing premises. the Motion for Reconsideration filed by respondent
Mayor Osmeña is hereby DENIED.

The Compliances with attached Compliance Monitoring Reports for the months of January and
February 2017, which were filed by the public respondents through the Office of the Solicitor General
(OSG), are hereby NOTED.

Pursuant to the recommendation of the public respondents in their Compliance Monitoring Reports,
the Court hereby DIRECT'S respondent Mayor Osmeña to comply with the DENR-EMB's request for
the submission of the local government's Safe Closure and Rehabilitation Plan (SCRP) for the
Inayawan landfill within thirty days (30) days from notice.

SO ORDERED.28

Hence, this instant petition.

The Issues

For resolution of the Court are the following issues: 1) whether the 30-day prior notice requirement
for citizen suits under R.A. 9003 and R.A. 8749 is needed prior to the filing of the instant petition; 2)
whether the CA correctly ruled that the requirements for the grant of the privilege of the writ
of kalikasan were sufficiently established.

The Ruling of the Court

The petition is without merit.

Petitioner argues that respondent brushed aside the 30-day prior notice requirement for citizen suits
under R.A. 900329 and RA. 8749.30

Petitioner's argument does not persuade.

Section 5, Rule 2 of the Rules of Procedure for Environmental Cases (RPEC), is instructive on the
matter:

Section 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.

Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective
provisions. (Underscoring Ours)

Section 1, Rule 7 of RPEC also 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, non-governmental 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.

Here, the present petition for writ of kalikasan under the RPEC is a separate and distinct action from
R.A. 9003 and R.A. 8749. A writ of kalikasan is an extraordinary remedy covering environmental
damage of such magnitude that will prejudice the life, health or property of inhabitants in two or
more cities or provinces.31 It is designed for a narrow but special purpose: to accord a stronger
protection for environmental rights, aiming, among others, to provide a speedy and effective
resolution of a case involving the violation of one's constitutional right to a healthful and balanced
ecology that transcends political and territorial boundaries, and to address the potentially exponential
nature of large-scale ecological threats.32

Moreover, Section 3, Rule 7 of RPEC allows direct resort to this Court or with any of the stations of
the CA, which states:

Section 3. Where to file. - The petition shall be filed with the Supreme Court or with any of the
stations of the Court of Appeals.

Given that the writ of kalikasan is an extraordinary remedy and the RPEC allows direct action to this
Court and the CA where it is dictated by public welfare,33 this Court is of the view that the prior 30
day notice requirement for citizen suits under R.A. 9003 and R.A. 8749 is inapplicable. It is ultimately
within the Court's discretion whether or not to accept petitions brought directly before it.34

We affirm the CA when it ruled that the requirements for the grant of the privilege of the writ
of kalikasan were sufficiently established.

Under Section 1 of Rule 7 of the RPEC, 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 of inhabitants in two or more cities or provinces.35

Expectedly, the Rules do not define the exact nature or degree of environmental damage but only
that it must be sufficiently grave, in terms of the territorial scope of such damage, so as to call for
the grant of this extraordinary remedy. The gravity of environmental damage sufficient to grant the
writ is, thus, to be decided on a case-to-case basis.36

The Court is convinced from the evidence on record that the respondent has sufficiently established
the aforementioned requirements for the grant of the privilege of the writ of kalikasan. The record
discloses that the City Government's resumption of the garbage dumping operations at the Inayawan
landfill has raised serious environmental concerns. As aptly and extensively discussed by the
appellate court in its Decision based from the EMB Compliance Evaluation Report (CER)37 dated
August 18, 2016 and the Notice of Violation and Technical Conference38 dated September 2, 20 16,
issued by the EMB to Mayor Osmeña, to wit:

Moreover, based on the CER drafted by the EMB, the dumping operation at the Inayawan landfill has
violated the criteria specified under DENR Administrative Order No. 34-01 specifically as to the
proper leachate collection and treatment at the landfill and the regular water quality monitoring of
surface and ground waters and effluent, as well as gas emissions thereat. At the same time, as
admitted by Mr. Marco Silberon from the DENR-7 during the Cebu SP Executive Session39 dated 16
August 2016, the Inayawan landfill has already been converted to a dumpsite operation despite its
original design as sanitary landfill which is violative of Section 17(h)40 of R.A. 9003 expressly
prohibiting open dumps as final disposal sites.41

xxxx

Contrary to respondents' belief, the magnitude of the environmental damage can be gleaned from
the fact that the air pollution has affected resident not just from Cebu City but also from the
neighboring city of Talisay. Also, in light of the EMB's finding that the proper treatment of the
leachate at the Inayawan landfill has not been complied with prior to its discharge to the Cebu strait,
there is no question that the scope of the possible environmental damage herein has expanded to
encompass not just the City of Cebu but other localities as well that connects to such strait. Since
leachate is contaminated liquid from decomposed waste,42 it is not difficult to consider the magnitude
of the potential environment harm it can unleash if this is released to a receiving water body without
being sufficiently treated first, as in this case. In view of the foregoing, the Court finds that that (sic)
the closure of the Inayawan landfill is warranted in this case.43

It may not be amiss to mention that even the EMB's own official has recognized the need of closing
the Inayawan landfill due to the environmental violations committed by the City Government in its
operation. This was the sentiment expressed by Mr. Amancio Dongcoy, a representative from the
DENR-EMB, during the Cebu SP Executive Session on 20 February 2015, thus:44

xxxx

Actually, DENR, way back in late 2010, my companion conducted Water Quality Monitoring and we
took samples of the waste water coming from the leachate pond and it is not complying with the
Clean Water Act We wrote a letter to Mayor Rama, advising him to take measures, so that the Clean
Water Act can be complied with. So, that's why, the first reaction of Mayor Rama, is to decide that it
must be closed because it is necessary that it must stop operation.45

Also, the air and water quality impact assessment of the EMB Compliance Evaluation Report
(CER)46 dated August 18, 2016, made remarks that the air quality poses a threat to nearby
surroundings/habitat while the water quality (leachate) poses threat of water pollution.47 The report
also stated that the foul odor from the landfill already reached neighboring communities as far as SM
Seaside and UC Mambaling which have disrupted activities causing economic loss and other activities
for improvement particularly for SM Seaside.48 Further, most of the conditions stipulated in the ECC
were not complied with.49

In addition, the EMB's findings particularly as to the air quality is corroborated by 15 affidavits
executed by affected residents and/or business owners from Cebu and Talisay Cities who affirmed
smelling a foul odor coming from the Inayawan landfill, and some even noted the appearance of
flies.50

Moreover, the DOH Inspection Report51 dated September 6, 2016, observed that the Inayawan
landfill had been in operation for 17 years, which exceeded the 7-year estimated duration period in
the projected design data. This caused the over pile-up of refuse/garbage in the perimeter and
boarder of the landfill, having a height slope distance of approximately 120 meters at the side portion
of Fil-Invest Subdivision, Cogon Pardo Side portion has approximately height of 40 meters and at
Inayawan side portion is approximately from 10-20 meters from the original ground level. The
standard process procedure management was poorly implemented.52

As to the health impact, the DOH found that the residents, commercial centers, shanties and
scavengers near the dump site are at high risk of acquiring different types of illness due to pollution,
considering the current status of the dump site.53
The DOH highly recommended the immediate closure of the Inayawan sanitary landfill. It was further
stated that the disposal area is not anymore suitable as a sanitary landfill even if rehabilitated
considering its location within the city, the number of residents and the increasing population of the
city, the neighboring cities and towns, and the expected increase in number of commercial centers,
transportation and tourist concerns.54

Prescinding from the above, the EMB, DOH, Mr. Amancio Dongcoy, a representative from the DENR-
EMB, and the Cebu and Talisay residents are all in agreement as to the need of closing the Inayawan
landfill due to the environmental violations committed by the City Government in its operation. The
Court, while it have the jurisdiction and power to decide cases, is not precluded from utilizing 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

Lastly, as much as this Court recognizes the parties' good intention and sympathize with the dilemma
of Mayor Osmeña or the City Government in looking for its final disposal site, considering the
garbage daily disposal of 600 tons generated by the city and its duty to provide basic services and
facilities of garbage collection and disposal system,56 We agree with the appellate court that the
continued operation of the Inayawan landfill poses a serious and pressing danger to the environment
that could result in injurious consequences to the health and lives of the nearby residents, thereby
warranting the issuance of a writ of kalikasan.

WHEREFORE, the petition is DENIED. The Decision dated December 15, 2016 and Resolution dated
March 14, 2017 of the Court of Appeals, which granted the privilege of the writ of kalikasan and
ordered petitioner Mayor Tomas R. Osmeña, in his capacity as City Mayor of Cebu and/or his
representatives, to permanently cease and desist from dumping or disposing of garbage or solid
waste at the Inayawan landfill and to continue to rehabilitate the same, are hereby AFFIRMED.

SO ORDERED.
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,  otherwise known as the "Tubbataha Reefs
3

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."  On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after
4

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.  Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the Department
5

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."  By March 30, 2013, the US Navy-led salvage team had finished removing the last
6

piece of the grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective
sector/organization and others, including minors or generations yet unborn, filed the present petition agairtst Scott
H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises
Co-Director ("US respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa,
Jr., Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje (Department of
Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command,
AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."

The Petition

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and
continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which
events violate their constitutional rights to a balanced and healthful ecology. They also seek a directive from this
Court for the institution of civil, administrative and criminal suits for acts committed in violation of environmental laws
and regulations in connection with the grounding incident.

Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction of law enforcement
officer (Section 30); damages to the reef (Section 20); and destroying and disturbing resources (Section 26[g]).
Furthermore, petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they want this Court
to nullify for being unconstitutional.

The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit: WHEREFORE, in view
of the foregoing, Petitioners respectfully pray that the Honorable Court: 1. Immediately issue upon the filing of this
petition a Temporary 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.  (Underscoring supplied.)
7

Since only the Philippine respondents filed their comment  to the petition, petitioners also filed a motion for early
8

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."  Specifically, it is "a party's personal
10

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."  However, the rule on standing is a procedural
11

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.,  we recognized the "public right" of citizens to "a balanced and
13

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 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.  Such right carries with it the
1âwphi1

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.  (Emphasis supplied.)
15

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,  is expressly provided in Article XVI of the 1987 Constitution which states:
17

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,  we discussed the principle of state immunity from suit, as follows:
18

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.  (Emphasis supplied.)
19

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,  we further expounded on the immunity of foreign states from the
20

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.  (Emphasis supplied.)
21

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,  one of the consolidated cases therein involved a Filipino employed at
23

Clark Air Base who was arrested following a buy-bust operation conducted by two officers of the US Air Force, and
was eventually dismissed from his employment when he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against the military officers, the latter moved to dismiss the case
on the ground that the suit was against the US Government which had not given its consent. The RTC denied the
motion but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the
complaint. We held that petitioners US military officers were acting in the exercise of their official functions when
they conducted the buy-bust operation against the complainant and thereafter testified against him at his trial. It
follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the courts of another State without
the former's consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil") from private, commercial and proprietary acts (Jure gestionis). Under the
restrictive rule of State immunity, State immunity extends only to acts Jure imperii. The restrictive application of
State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. 24

In Shauf v. Court of Appeals,  we discussed the limitations of the State immunity principle, thus:
25

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.  (Emphasis supplied.) In this case, the US respondents were sued
26
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."  The
28

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).  The freedom to use the world's marine waters is one of
29

the oldest customary principles of international law.  The UNCLOS gives to the coastal State sovereign rights in
30

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,  as pointed out by Justice Carpio, they continue to enjoy sovereign immunity subject to the
33

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, 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.  The invocation of US federal tort laws and even common law is
36

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;

(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,  the VFA was duly concurred in by the
41

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.  The present petition under
42

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.

G.R. No. 203585               July 29, 2013

MILA CABOVERDE TANTANO and ROSELLER CABOVERDE, Petitioners,

vs.
DOMINALDA ESPINA-CABOVERDE, EVE CABOVERDE-YU, FE CABOVERDE-LABRADOR, and JOSEPHINE
E. CABOVERDE, Respondents.

DECISION

VELASCO, JR., J.:

The Case

Assailed in this petition for review under Rule 45 are the Decision and Resolution of the Court of Appeals (CA)
rendered on June 25, 2012 and September 21, 2012, respectively, in CA-G.R. SP. No. 03834, which effectively
affirmed the Resolutions dated February 8, 20 I 0 and July 19, 2010 of the Regional Trial Court (RTC) of Sindangan,
Zamboanga del Norte, Branch 11, in Civil Case No. S-760, approving respondent Dominalda Espina-Caboverde's
application for receivership and appointing the receivers over the disputed properties.

The Facts

Petitioners Mila Caboverde Tantano (Mila) and Roseller Caboverde (Roseller) are children of respondent Dominalda
Espina-Caboverde (Dominalda) and siblings of other respondents in this case, namely: Eve Caboverde-Yu (Eve),
Fe Caboverde-Labrador (Fe), and Josephine E. Caboverde (Josephine).

Petitioners and their siblings, Ferdinand, Jeanny and Laluna, are the registered owners and in possession of certain
parcels of land, identified as Lots 2, 3 and 4 located at Bantayan, Sindangan and Poblacion, Sindangan in
Zamboanga del Norte, having purchased them from their parents, Maximo and Dominalda Caboverde. 1

The present controversy started when on March 7, 2005, respondents Eve and Fe filed a complaint before the RTC
of Sindangan, Zamboanga del Norte where they prayed for the annulment of the Deed of Sale purportedly
transferring Lots 2, 3 and 4 from their parents Maximo and Dominalda in favor of petitioners Mila and Roseller and
their other siblings, Jeanny, Laluna and Ferdinand. Docketed as Civil Case No. S-760, the case was raffled to
Branch 11 of the court.

In their verified Answer, the defendants therein, including Maximo and Dominalda, posited the validity and due
execution of the contested Deed of Sale.

During the pendency of Civil Case No. S-760, Maximo died. On May 30, 2007, Eve and Fe filed an Amended
Complaint with Maximo substituted by his eight (8) children and his wife Dominalda. The Amended Complaint
reproduced the allegations in the original complaint but added eight (8) more real properties of the Caboverde
estate in the original list.

As encouraged by the RTC, the parties executed a Partial Settlement Agreement (PSA) where they fixed the
sharing of the uncontroverted properties among themselves, in particular, the adverted additional eight (8) parcels of
land including their respective products and improvements. Under the PSA, Dominalda’s daughter, Josephine, shall
be appointed as Administrator. The PSA provided that Dominalda shall be entitled to receive a share of one-half
(1/2) of the net income derived from the uncontroverted properties. The PSA also provided that Josephine shall
have special authority, among others, to provide for the medicine of her mother.
The parties submitted the PSA to the court on or about March 10, 2008 for approval. 2

Before the RTC could act on the PSA, Dominalda, who, despite being impleaded in the case as defendant, filed a
Motion to Intervene separately in the case. Mainly, she claimed that the verified Answer which she filed with her co-
defendants contained several material averments which were not representative of the true events and facts of the
case. This document, she added, was never explained to her or even read to her when it was presented to her for
her signature.

On May 12, 2008, Dominalda filed a Motion for Leave to Admit Amended Answer, attaching her Amended Answer
where she contradicted the contents of the aforesaid verified Answer by declaring that there never was a sale of the
three (3) contested parcels of land in favor of Ferdinand, Mila, Laluna, Jeanny and Roseller and that she and her
husband never received any consideration from them. She made it clear that they intended to divide all their
properties equally among all their children without favor. In sum, Dominalda prayed that the reliefs asked for in the
Amended Complaint be granted with the modification that her conjugal share and share as intestate heir of Maximo
over the contested properties be recognized. 3

The RTC would later issue a Resolution granting the Motion to Admit Amended Answer. 4

On May 13, 2008, the court approved the PSA, leaving three (3) contested properties, Lots 2, 3, and 4, for further
proceedings in the main case.

Fearing that the contested properties would be squandered, Dominalda filed with the RTC on July 15, 2008 a
Verified Urgent Petition/Application to place the controverted Lots 2, 3 and 4 under receivership. Mainly, she
claimed that while she had a legal interest in the controverted properties and their produce, she could not enjoy
them, since the income derived was solely appropriated by petitioner Mila in connivance with her selected kin. She
alleged that she immediately needs her legal share in the income of these properties for her daily sustenance and
medical expenses. Also, she insisted that unless a receiver is appointed by the court, the income or produce from
these properties is in grave danger of being totally dissipated, lost and entirely spent solely by Mila and some of her
selected kin. Paragraphs 5, 6, 7, and 8 of the Verified Urgent Petition/Application for Receivership 5 (Application for
Receivership) capture Dominalda’s angst and apprehensions:

5. That all the income of Lot Nos. 2, 3 and 4 are collected by Mila Tantano, thru her collector Melinda
Bajalla, and solely appropriated by Mila Tantano and her selected kins, presumably with Roseller E.
Caboverde, Ferdinand E. Caboverde, Jeanny Caboverde and Laluna Caboverde, for their personal use and
benefit;

6. That defendant Dominalda Espina Caboverde, who is now sickly, in dire need of constant medication or
medical attention, not to mention the check-ups, vitamins and other basic needs for daily sustenance, yet
despite the fact that she is the conjugal owner of the said land, could not even enjoy the proceeds or income
as these are all appropriated solely by Mila Tantano in connivance with some of her selected kins;

7. That unless a receiver is appointed by the court, the income or produce from these lands, are in grave
danger of being totally dissipated, lost and entirely spent solely by Mila Tantano in connivance with some of
her selected kins, to the great damage and prejudice of defendant Dominalda Espina Caboverde, hence,
there is no other most feasible, convenient, practicable and easy way to get, collect, preserve, administer
and dispose of the legal share or interest of defendant Dominalda Espina Caboverde except the
appointment of a receiver x x x;

xxxx

9. That insofar as the defendant Dominalda Espina Caboverde is concerned, time is of the utmost essence.
She immediately needs her legal share and legal interest over the income and produce of these lands so
that she can provide and pay for her vitamins, medicines, constant regular medical check-up and daily
sustenance in life. To grant her share and interest after she may have passed away would render everything
that she had worked for to naught and waste, akin to the saying "aanhin pa ang damo kung patay na ang
kabayo."
On August 27, 2009, the court heard the Application for Receivership and persuaded the parties to discuss among
themselves and agree on how to address the immediate needs of their mother. 6

On October 9, 2009, petitioners and their siblings filed a Manifestation formally expressing their concurrence to the
proposal for receivership on the condition, inter alia, that Mila be appointed the receiver, and that, after getting the
2/10 share of Dominalda from the income of the three (3) parcels of land, the remainder shall be divided only by and
among Mila, Roseller, Ferdinand, Laluna and Jeanny. The court, however, expressed its aversion to a party to the
action acting as receiver and accordingly asked the parties to nominate neutral persons. 7

On February 8, 2010, the trial court issued a Resolution granting Dominalda’s application for receivership over Lot
Nos. 2, 3 and 4. The Resolution reads:

As regards the second motion, the Court notes the urgency of placing Lot 2 situated at Bantayan, covered by TCT
No. 46307; Lot 3 situated at Poblacion, covered by TCT No. T-8140 and Lot 4 also situated at Poblacion covered by
TCT No. T-8140, all of Sindangan, Zamboanga del Norte under receivership as defendant Dominalda Espina
Caboverde (the old and sickly mother of the rest of the parties) who claims to be the owner of the one-half portion of
the properties under litigation as her conjugal share and a portion of the estate of her deceased husband Maximo, is
in dire need for her medication and daily sustenance. As agreed by the parties, Dominalda Espina Caboverde shall
be given 2/10 shares of the net monthly income and products of the said properties. 8

In the same Resolution, the trial court again noted that Mila, the nominee of petitioners, could not discharge the
duties of a receiver, she being a party in the case. 9 Thus, Dominalda nominated her husband’s relative, Annabelle
Saldia, while Eve nominated a former barangay kagawad, Jesus Tan. 10

Petitioners thereafter moved for reconsideration raising the arguments that the concerns raised by Dominalda in her
Application for Receivership are not grounds for placing the properties in the hands of a receiver and that she failed
to prove her claim that the income she has been receiving is insufficient to support her medication and medical
needs. By Resolution11 of July 19, 2010, the trial court denied the motion for reconsideration and at the same time
appointed Annabelle Saldia as the receiver for Dominalda and Jesus Tan as the receiver for Eve. The trial court
stated:

As to the issue of receivership, the Court stands by its ruling in granting the same, there being no cogent reason to
overturn it. As intimated by the movant-defendant Dominalda Caboverde, Lots 2, 3 and 4 sought to be under
receivership are not among those lots covered by the adverted Partial Amicable Settlement. To the mind of the
Court, the fulfilment or non-fulfilment of the terms and conditions laid therein nonetheless have no bearing on these
three lots. Further, as correctly pointed out by her, there is possibility that these Lots 2, 3, and 4, of which the
applicant has interest, but are in possession of other defendants who are the ones enjoying the natural and civil
fruits thereof which might be in the danger of being lost, removed or materially injured. Under this precarious
condition, they must be under receivership, pursuant to Sec. 1 (a) of Rule 59. Also, the purpose of the receivership
is to procure money from the proceeds of these properties to spend for medicines and other needs of the movant
defendant Dominalda Caboverde who is old and sickly. This circumstance falls within the purview of Sec. 1(d), that
is, "Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible
means of preserving, administering, or disposing of the property in litigation."

Both Annabelle Saldia and Jesus Tan then took their respective oaths of office and filed a motion to fix and approve
bond which was approved by the trial court over petitioners’ opposition.

Undaunted, petitioners filed an Urgent Precautionary Motion to Stay Assumption of Receivers dated August 9, 2010
reiterating what they stated in their motion for reconsideration and expressing the view that the grant of receivership
is not warranted under the circumstances and is not consistent with applicable rules and jurisprudence. The RTC,
on the postulate that the motion partakes of the nature of a second motion for reconsideration, thus, a prohibited
pleading, denied it via a Resolution dated October 7, 2011 where it likewise fixed the receiver’s bond at PhP
100,000 each. The RTC stated:

[1] The appointed receivers, JESUS A. TAN and ANNABELLE DIAMANTE-SALDIA, are considered duly appointed
by this Court, not only because their appointments were made upon their proper nomination from the parties in this
case, but because their appointments have been duly upheld by the Court of Appeals in its Resolution dated 24 May
2011 denying the herein defendants’ (petitioners therein) application for a writ of preliminary injunction against the 8
February 2010 Resolution of this Court placing the properties (Lots 2, 3 and 4) under receivership by the said
JESUS A. TAN and ANNABELLE DIAMANTE-SALDIA, and Resolution dated 29 July 2011 denying the herein
defendants’ (petitioners therein) motion for reconsideration of the 24 May 2011 Resolution, both, for lack of merit. In
its latter Resolution, the Court of Appeals states:

A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect
or preserve his rights or interests and for no other purpose during the pendency of the principal action. But before a
writ of preliminary injunction may be issued, there must be a clear showing that there exists a right to be protected
and that the acts against which the writ is to be directed are violative of the said right and will cause irreparable
injury.

Unfortunately, petitioners failed to show that the acts of the receivers in this case are inimical to their rights as
owners of the property. They also failed to show that the non-issuance of the writ of injunction will cause them
irreparable injury. The court-appointed receivers merely performed their duties as administrators of the disputed lots.
It must be stressed that the trial court specifically appointed these receivers to preserve the properties and its
proceeds to avoid any prejudice to the parties until the main case is resolved, Hence, there is no urgent need to
issue the injunction.

ACCORDINGLY, the motion for reconsideration is DENIED for lack of merit.

SO ORDERED.

xxxx

WHEREFORE, premises considered, this Court RESOLVES, as it is hereby RESOLVED, that:

1. The defendants’ "Urgent Precautionary Motion to Stay Assumption of Receivers" be DENIED for lack of
merit. Accordingly, it being patently a second motion for reconsideration, a prohibited pleading, the same is
hereby ordered EXPUNGED from the records;

2. The "Motion to Fix the Bond, Acceptance and Approval of the Oath of Office, and Bond of the Receiver" of
defendant Dominalda Espina Caboverde, be GRANTED with the receivers’ bond set and fixed at ONE
HUNDRED THOUSAND PESOS (Ph₱100,000.00) each. 12

It should be stated at this juncture that after filing their Urgent Precautionary Motion to Stay Assumption of
Receivers but before the RTC could rule on it, petitioners filed a petition for certiorari with the CA dated September
29, 2010 seeking to declare null and void the February 8, 2010 Resolution of the RTC granting the Application for
Receivership and its July 19, 2010 Resolution denying the motion for reconsideration filed by petitioners and
appointing the receivers nominated by respondents. The petition was anchored on two grounds, namely: (1) non-
compliance with the substantial requirements under Section 2, Rule 59 of the 1997 Rules of Civil

Procedure because the trial court appointed a receiver without requiring the applicant to file a bond; and (2) lack of
factual or legal basis to place the properties under receivership because the applicant presented support and
medication as grounds in her application which are not valid grounds for receivership under the rules.

On June 25, 2012, the CA rendered the assailed Decision denying the petition on the strength of the following
premises and ratiocination:

Petitioners harp on the fact that the court a quo failed to require Dominalda to post a bond prior to the issuance of
the order appointing a receiver, in violation of Section 2, Rule 59 of the Rules of court which provides that:

SEC. 2. Bond on appointment of receiver.-- Before issuing the order appointing a receiver the court shall require the
applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by
the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the
appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause;
and the court may, in its discretion, at any time after the appointment, require an additional bond as further security
for such damages.
The Manifestation dated September 30, 2009 filed by petitioners wherein "they formally manifested their
concurrence" to the settlement on the application for receivership estops them from questioning the sufficiency of
the cause for the appointment of the receiver since they themselves agreed to have the properties placed under
receivership albeit on the condition that the same be placed under the administration of Mila. Thus, the filing of the
bond by Dominalda for this purpose becomes unnecessary.

It must be emphasized that the bond filed by the applicant for receivership answers only for all damages that the
adverse party may sustain by reason of the appointment of such receiver in case the applicant shall have procured
such appointment without sufficient cause; it does not answer for damages suffered by reason of the failure of the
receiver to discharge his duties faithfully or to obey the orders of the court, inasmuch as such damages are covered
by the bond of the receiver.

As to the second ground, petitioners insist that there is no justification for placing the properties under receivership
since there was neither allegation nor proof that the said properties, not the fruits thereof, were in danger of being
lost or materially injured. They believe that the public respondent went out of line when he granted the application
for receivership for the purpose of procuring money for the medications and basic needs of Dominalda despite the
income she’s supposed to receive under the Partial Settlement Agreement.

The court a quo has the discretion to decide whether or not the appointment of a receiver is necessary. In this case,
the public respondent took into consideration that the applicant is already an octogenarian who may not live up to
the day when this conflict will be finally settled. Thus, We find that he did not act with grave abuse of discretion
amounting to lack or excess of jurisdiction when he granted the application for receivership based on Section 1(d) of
Rule 59 of the Rules of Court.

A final note, a petition for certiorari may be availed of only when there is no appeal, nor any plain, speedy and
adequate remedy in the ordinary course of law. In this case, petitioners may still avail of the remedy provided in
Section 3, Rule 59 of the said Rule where they can seek for the discharge of the receiver.

FOR REASONS STATED, the petition for certiorari is DENIED.

SO ORDERED.13

Petitioners’ Motion for Reconsideration was also denied by the CA on September 21, 2012. 14

Hence, the instant petition, petitioners effectively praying that the approval of respondent Dominalda’s application
for receivership and necessarily the concomitant appointment of receivers be revoked.

The Issues

Petitioners raise the following issues in their petition:

(1) Whether or not the CA committed grave abuse of discretion in sustaining the appointment of a receiver
despite clear showing that the reasons advanced by the applicant are not any of those enumerated by the
rules; and

(2) Whether or not the CA committed grave abuse of discretion in upholding the Resolution of the RTC and
ruling that the receivership bond is not required prior to appointment despite clear dictates of the rules.

The Court’s Ruling

The petition is impressed with merit.

We have repeatedly held that receivership is a harsh remedy to be granted with utmost circumspection and only in
extreme situations. The doctrinal pronouncement in Velasco & Co. v. Gochico & Co is instructive:
The power to appoint a receiver is a delicate one and should be exercised with extreme caution and only under
circumstances requiring summary relief or where the court is satisfied that there is imminent danger of loss, lest the
injury thereby caused be far greater than the injury sought to be averted. The court should consider the
consequences to all of the parties and the power should not be exercised when it is likely to produce irreparable
injustice or injury to private rights or the facts demonstrate that the appointment will injure the interests of others
whose rights are entitled to as much consideration from the court as those of the complainant. 15

To recall, the RTC approved the application for receivership on the stated rationale that receivership was the most
convenient and feasible means to preserve and administer the disputed properties. As a corollary, the RTC,
agreeing with the applicant Dominalda, held that placing the disputed properties under receivership would ensure
that she would receive her share in the income which she supposedly needed in order to pay for her vitamins,
medicines, her regular check-ups and daily sustenance. Considering that, as the CA put it, the applicant was
already an octogenarian who may not live up to the day when the conflict will be finally settled, the RTC did not act
with grave abuse of discretion amounting to lack or excess of jurisdiction when it granted the application for
receivership since it was justified under Sec. 1(d), Rule 59 of the Rules of Court, which states:

Section 1. Appointment of a receiver. – Upon a verified application, one or more receivers of the property subject of
the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or
by the Supreme Court, or a member thereof, in the following cases:

xxxx

(d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible
means of preserving, administering, or disposing of the property in litigation. (Emphasis supplied.)

Indeed, Sec. 1(d) above is couched in general terms and broad in scope, encompassing instances not covered by
the other grounds enumerated under the said section. 16 However, in granting applications for receivership on the
basis of this section, courts must remain mindful of the basic principle that receivership may be granted only when
the circumstances so demand, either because the property sought to be placed in the hands of a receiver is in
danger of being lost or because they run the risk of being impaired, 17 and that being a drastic and harsh remedy,
receivership must be granted only when there is a clear showing of necessity for it in order to save the plaintiff from
grave and immediate loss or damage. 18

Before appointing a receiver, courts should consider: (1) whether or not the injury resulting from such appointment
would probably be greater than the injury ensuing if the status quo is left undisturbed; and (2) whether or not the
appointment will imperil the interest of others whose rights deserve as much a consideration from the court as those
of the person requesting for receivership.19

Moreover, this Court has consistently ruled that where the effect of the appointment of a receiver is to take real
estate out of the possession of the defendant before the final adjudication of the rights of the parties, the
appointment should be made only in extreme cases.20

After carefully considering the foregoing principles and the facts and circumstances of this case, We find that the
grant of Dominalda’s Application for Receivership has no leg to stand on for reasons discussed below.

First, Dominalda’s alleged need for income to defray her medical expenses and support is not a valid justification for
the appointment of a receiver. The approval of an application for receivership merely on this ground is not only
unwarranted but also an arbitrary exercise of discretion because financial need and like reasons are not found in
Sec. 1 of Rule 59 which prescribes specific grounds or reasons for granting receivership. The RTC’s insistence that
the approval of the receivership is justified under Sec. 1(d) of Rule 59, which seems to be a catch-all provision, is far
from convincing. To be clear, even in cases falling under such provision, it is essential that there is a clear showing
that there is imminent danger that the properties sought to be placed under receivership will be lost, wasted or
injured.

Second, there is no clear showing that the disputed properties are in danger of being lost or materially impaired and
that placing them under receivership is most convenient and feasible means to preserve, administer or dispose of
them.
Based on the allegations in her application, it appears that Dominalda sought receivership mainly because she
considers this the best remedy to ensure that she would receive her share in the income of the disputed properties.
Much emphasis has been placed on the fact that she needed this income for her medical expenses and daily
sustenance. But it can be gleaned from her application that, aside from her bare assertion that petitioner Mila solely
appropriated the fruits and rentals earned from the disputed properties in connivance with some of her siblings,
Dominalda has not presented or alleged anything else to prove that the disputed properties were in danger of being
wasted or materially injured and that the appointment of a receiver was the most convenient and feasible means to
preserve their integrity.

Further, there is nothing in the RTC’s February 8 and July 19, 2010 Resolutions that says why the disputed
properties might be in danger of being lost, removed or materially injured while in the hands of the defendants a
quo. Neither did the RTC explain the reasons which compelled it to have them placed under receivership. The RTC
simply declared that placing the disputed properties under receivership was urgent and merely anchored its
approval on the fact that Dominalda was an elderly in need of funds for her medication and sustenance. The RTC
plainly concluded that since the purpose of the receivership is to procure money from the proceeds of these
properties to spend for medicines and other needs of the Dominalda, who is old and sickly, this circumstance falls
within the purview of Sec. 1(d), that is, "Whenever in other cases it appears that the appointment of a receiver is the
most convenient and feasible means of preserving, administering, or disposing of the property in litigation."

Verily, the RTC’s purported determination that the appointment of a receiver is the most convenient and feasible
means of preserving, administering or disposing of the properties is nothing but a hollow conclusion drawn from
inexistent factual considerations.

Third, placing the disputed properties under receivership is not necessary to save Dominalda from grave and
immediate loss or irremediable damage. Contrary to her assertions, Dominalda is assured of receiving income
under the PSA approved by the RTC providing that she was entitled to receive a share of one-half (1/2) of the net
income derived from the uncontroverted properties. Pursuant to the PSA, Josephine, the daughter of Dominalda,
was appointed by the court as administrator of the eight (8) uncontested lots with special authority to provide for the
medicine of her mother. Thus, it was patently erroneous for the RTC to grant the Application for Receivership in
order to ensure Dominalda of income to support herself because precisely, the PSA already provided for that. It
cannot be over-emphasized that the parties in Civil Case No. S-760 were willing to make arrangements to ensure
that Dominalda was provided with sufficient income. In fact, the RTC, in its February 8, 2010 Resolution granting the
Application for Receivership, noted the agreement of the parties that "Dominalda Espina Caboverde shall be given
2/10 shares of the net monthly income and products of said properties." 21

Finally, it must be noted that the defendants in Civil Case No. S-760 are the registered owners of the disputed
properties that were in their possession. In cases such as this, it is settled jurisprudence that the appointment should
be made only in extreme cases and on a clear showing of necessity in order to save the plaintiff from grave and
irremediable loss or damage.22

This Court has held that a receiver should not be appointed to deprive a party who is in possession of the property
in litigation, just as a writ of preliminary injunction should not be issued to transfer property in litigation from the
possession of one party to another where the legal title is in dispute and the party having possession asserts
ownership in himself, except in a very clear case of evident usurpation. 23

Furthermore, this Court has declared that the appointment of a receiver is not proper when the rights of the parties,
one of whom is in possession of the property, depend on the determination of their respective claims to the title of
such property24 unless such property is in danger of being materially injured or lost, as by the prospective
foreclosure of a mortgage on it or its portions are being occupied by third persons claiming adverse title. 25

It must be underscored that in this case, Dominalda’s claim to the disputed properties and her share in the
properties’ income and produce is at best speculative precisely because the ownership of the disputed properties is
yet to be determined in Civil Case No. S-760. Also, except for Dominalda’s claim that she has an interest in the
disputed properties, Dominalda has no relation to their produce or income. 1âwphi1

By placing the disputed properties and their income under receivership, it is as if the applicant has obtained
indirectly what she could not obtain directly, which is to deprive the other parties of the possession of the property
until the controversy between them in the main case is finally settled. 26 This Court cannot countenance this
arrangement.

To reiterate, the RTC’s approval of the application for receivership and the deprivation of petitioners of possession
over the disputed properties would be justified only if compelling reasons exist. Unfortunately, no such reasons were
alleged, much less proved in this case.

In any event, Dominalda’s rights may be amply protected during the pendency of Civil Case No. S-760 by causing
her adverse claim to be annotated on the certificates of title covering the disputed properties. 27

As regards the issue of whether or not the CA was correct in ruling that a bond was not required prior to the
appointment of the receivers in this case, We rule in the negative.

Respondents Eve and Fe claim that there are sufficient grounds for the appointment of receivers in this case and
that in fact, petitioners agreed with them on the existence of these grounds when they acquiesced to Dominalda’s
Application for Receivership. Thus, respondents insist that where there is sufficient cause to appoint a receiver,
there is no need for an applicant’s bond because under Sec. 2 of Rule 59, the very purpose of the bond is to answer
for all damages that may be sustained by a party by reason of the appointment of a receiver in case the applicant
shall have procured such appointment without sufficient cause. Thus, they further argue that what is needed is the
receiver’s bond which was already fixed and approved by the RTC.28 Also, the CA found that there was no need for
Dominalda to file a bond considering that petitioners filed a Manifestation where they formally consented to the
receivership. Hence, it was as if petitioners agreed that there was sufficient cause to place the disputed properties
under receivership; thus, the CA declared that petitioners were estopped from challenging the sufficiency of such
cause.

The foregoing arguments are misplaced. Sec. 2 of Rule 59 is very clear in that before issuing the order appointing a
receiver the court shall require the applicant to file a bond executed to the party against whom the application is
presented. The use of the word "shall" denotes its mandatory nature; thus, the consent of the other party, or as in
this case, the consent of petitioners, is of no moment. Hence, the filing of an applicant’s bond is required at all times.
On the other hand, the requirement of a receiver’s bond rests upon the discretion of the court. Sec. 2 of Rule 59
clearly states that the court may, in its discretion, at any time after the appointment, require an additional bond as
further security for such damages.

WHEREFORE, upon the foregoing considerations, this petition is GRANTED. The assailed CA June 25, 2012
Decision and September 21, 2012 Resolution in CA-G.R. SP No. 03834 are hereby REVERSED and SET ASIDE.
The Resolutions dated February 8, 2010 and July 19, 2010 of the RTC, Branch 11 in Sindangan, Zamboanga del
Norte, in Civil Case No. S-760, approving respondent Dominalda Espina-Caboverde’s application for receivership
and appointing the receivers over the disputed properties are likewise SET ASIDE.

SO ORDERED.
 G.R. No. 206528, June 28, 2016

PHILIPPINE ASSET GROWTH TWO, INC. (SUCCESSOR-IN-INTEREST OF PLANTERS

DEVELOPMENT BANK) AND PLANTERS DEVELOPMENT BANK, Petitioners, v. FASTECH
SYNERGY PHILIPPINES, INC. (FORMERLY FIRST ASIA SYSTEM TECHNOLOGY, INC.),
FASTECH MICROASSEMBLY & TEST, INC., FASTECH ELECTRONIQUE, INC., AND FASTECH
PROPERTIES, INC., Respondents.

DECISION

PERLAS-BERNABE, J.:

For the Court's resolution is a petition for review on certiorari1 assailing the Decision2 dated
September 28, 2012 and the Resolution3 dated March 5, 2013 of the Court of Appeals (CA) in CA-
G.R. SP No. 122836 which: (a) approved the Rehabilitation Plan4 of respondents Fastech Synergy
Philippines, Inc. (formerly First Asia System Technology, Inc.) (Fastech Synergy), Fastech
Microassembly & Test, Inc. (Fastech Microassembly), Fastech Electronique, Inc. (Fastech
Electronique), and Fastech Properties, Inc. (Fastech Properties; collectively, respondents); (b)
enjoined petitioner Planters Development Bank (PDB) from effecting the foreclosure of respondents'
properties during the implementation thereof; and (c) remanded the case to the Regional Trial Court
(RTC) of Makati City, Branch 149 (RTC-Makati) to supervise its implementation.

The Facts

On April 8, 2011, respondents filed a verified Joint Petition5 for corporate rehabilitation (rehabilitation
petition) before the RTC-Makati, with prayer for the issuance of a Stay or Suspension
Order,6 docketed as SP Case No. M-7130. They claimed that: (a) their business operations and daily
affairs are being managed by the same individuals;7 (b) they share a majority of their common
assets;8 and (c) they have common creditors and common liabilities.9 chanrobleslaw

Among the common creditors listed in the rehabilitation petition was PDB,10 which had earlier filed a
petition11 for extrajudicial foreclosure of mortgage over the two (2) parcels of land, covered by
Transfer Certificate of Title (TCT) Nos. T-45810212 and T-45810313 and registered in the name of
Fastech Properties (subject properties),14 listed as common assets of respondents in the rehabilitation
petition.15 The foreclosure sale was held on April 13, 2011, with PDB emerging as the highest
bidder.16 Respondents claimed that this situation has impacted on their chance to recover from the
losses they have suffered over the years, since the said properties are being used by Fastech
Microassembly and Fastech Electronique17 in their business operations, and a source of significant
revenue for their owner-lessor, Fastech Properties.18 Hence, respondents submitted for the court's
approval their proposed Rehabilitation Plan,19 which sought: (a) a waiver of all accrued interests and
penalties; (b) a grace period of two (2) years to pay the principal amount of respondents'
outstanding loans, with the interests accruing during the said period capitalized as part of the
principal, to be paid over a twelve (12)-year period after the grace period; and (c) an interest rate of
four percent (4%) and two percent (2%) per annum (p.a.) for creditors whose credits are secured by
real estate and chattel mortgages, respectively.20 chanrobleslaw

On April 19, 2011, the RTC-Makati issued a Commencement Order with Stay Order,21 and appointed
Atty. Rosario S. Bernaldo as Rehabilitation Receiver, which the latter subsequently accepted.22 chanrobleslaw
After the initial hearing on May 18, 2011, and the filing of the comments/oppositions on the
rehabilitation petition,23 the RTC-Makati gave due course to the said petition, and, thereafter,
referred the same to the court-appointed Rehabilitation Receiver, who submitted in due time her
preliminary report,24 opining that respondents may be rehabilitated, considering that their assets
appear to be sufficient to cover their liabilities, but reserved her comment to the Rehabilitation Plan's
underlying assumptions, financial goals, and procedures to accomplish said goals after the
submission of a revised rehabilitation plan as directed by the RTC-Makati,25  which respondents cralawred

subsequently complied.26 chanrobleslaw

After the creditors had filed their respective comments and/or oppositions to the revised
Rehabilitation Plan, and respondents had submitted their consolidated reply27 thereto, the court-
appointed Rehabilitation Receiver submitted her comments,28 opining that respondents may be
successfully rehabilitated, considering the sufficiency of their assets to cover their liabilities and the
underlying assumptions, financial projections and procedures to accomplish said goals in their
Rehabilitation Plan.29 chanrobleslaw

The RTC-Makati Ruling

In a Resolution30 dated December 9, 2011, the RTC-Makati dismissed the rehabilitation petition

despite the favorable recommendation of its appointed Rehabilitation Receiver. It found the facts and
figures submitted by respondents to be unreliable in view of the disclaimer of opinion of the
independent auditors who reviewed respondents' 2009 financial statements,31 which it considered as
amounting to a "straightforward unqualified adverse opinion."32 In the same vein, it did not give
credence to the unaudited 2010 financial statements as the same were mere photocopied documents
and unsigned by any of respondents' responsible officers.33 It also observed that respondents added
new accounts and/or deleted/omitted certain accounts.34 Furthermore, it rejected the revised
financial projections as the bases for which were not submitted for its evaluation on the ground of
confidentiality.35
chanrobleslaw

Aggrieved, respondents appealed36 to the CA, with prayer for the issuance of a temporary restraining
order (TRO) and/or a writ of preliminary injunction (WPI), docketed as CA-G.R. SP No. 122836.

The Proceedings Before the CA

In a Resolution dated January 24, 2012, the CA issued a TRO37 so as not to render moot and
academic the case before it in view of PDB's pending Ex-Parte Petition for Issuance of a Writ of
Possession over the subject properties before the RTC of Biñan, Laguna, docketed as LRC Case No.
B-5141.38 Thereafter, the CA issued a WPI39 on March 22, 2012.

On April 30, 2012, the court-appointed Rehabilitation Receiver submitted a manifestation40 before the
CA, maintaining that the rehabilitation of respondents is viable since the financial projections and
procedures set forth to accomplish the goals in their Rehabilitation Plan are attainable.41 chanrobleslaw

After the creditors and respondents had filed their respective comments and reply to the
manifestation, the CA rendered a Decision42 dated September 28, 2012 (September 28, 2012
Decision), reversing and setting aside the RTC-Makati ruling.43 It ruled that the RTC-Makati
grievously erred in disregarding the report/opinion of the Rehabilitation Receiver that respondents
may be successfully rehabilitated, despite being highly qualified to make an opinion on accounting in
relation to rehabilitation matters.44 It likewise observed that the RTC-Makati failed to distinguish the
difference between an adverse or negative opinion and a disclaimer or when an auditor cannot
formulate an opinion with exactitude for lack of sufficient data.45 Finally, the CA declared that the
Rehabilitation Plan is feasible and should be approved, finding that respondents would be able to
meet their obligations to their creditors within their operating cash profits and other assets without
disrupting their business operations, which will be beneficial to their creditors, employees,
stockholders, and the economy.46 chanrobleslaw
Accordingly, the CA reinstated the rehabilitation petition, approved respondents' Rehabilitation Plan,
and remanded the case to the RTC-Makati to supervise its implementation. Considering that
respondents' creditors are placed in equal footing as a necessary consequence, it permanently
enjoined PDB from "effecting the foreclosure" of the subject properties during the implementation of
the Rehabilitation Plan.47 chanrobleslaw

Dissatisfied, PDB filed a motion for reconsideration48 which was, however, denied in a

Resolution49 dated March 5, 2013 (March 5, 2013 Resolution).

In the interim, DivinaLaw entered50 its appearance as the new lead counsel of PDB, in
collaboration51 and with the conformity of its counsel of record, Janda Asia & Associates.52 On April 3,
2013, DivinaLaw, on behalf of petitioner Philippine Asset Growth Two, Inc. (PAGTI), filed a Motion for
Substitution of Parties (motion for substitution),53 averring that PAGTI had acquired PDB's claims and
interests in the instant case, hence, should be substituted as a party therein.

The Proceedings Before the Court

On April 18, 2013, PAGTI and PDB (petitioners), represented by DivinaLaw, filed the instant petition,
claiming that PDB received a copy of the March 5, 2013 Resolution on April 3, 2013.54 chanrobleslaw

On July 10, 2013, respondents filed their Urgent Motion to Dismiss Petition for Review
on Certiorari for Being Filed Out of Time55 (urgent motion), positing that contrary to petitioners' claim
that PDB received notice of the March 5, 2013 Resolution on April 3, 2013, its counsel, Janda Asia &
Associates, already received a Copy of the said resolution on March 12, 2013. Thus, petitioners only
had until March 27, 2013 to file a petition for review on certiorari before the Court, and the petition
filed on April 18, 2013 was filed out of time.56 chanrobleslaw

Meanwhile, the Court required respondents to file their comment57 to the petition, and subsequently
directed petitioners to submit their comment on respondents' urgent motion, and reply to the latter's
comment.58 chanrobleslaw

In their Comment,59 respondents prayed for the dismissal of the petition and reiterated their stand
that the same was filed out of time, arguing that the receipt of the March 5, 2013 Resolution on
March 12, 2013 by Janda Asia & Associates, which remained as collaborating counsel of PDB, binds
petitioners and started the running of the fifteen (15)-day period within which to file a petition for
review on certiorari before the Court. Thus, the petition filed on April 18, 2013 was filed beyond the
reglementary period.60 Respondents likewise maintained the viability of the rehabilitation plan, which
will benefit not only their employees, but their stockholders, creditors, and the general public.61 chanrobleslaw

For their part, petitioners contended62 that: (a) the date of receipt of petitioners' lead counsel, i.e.,
DivinaLaw's receipt of the March 5, 2013 Resolution, should be the reckoning point of the fifteen
(15)-day period within which to file the instant petition, since only the lead counsel is entitled to
service of court processes,63 citing the case of Home Guaranty Corporation v. R-II Builders,
Inc.;64 and (b) the CA erred in not upholding the dismissal of the rehabilitation petition despite the
insufficiency of the Rehabilitation Plan which was based on financial statements that contained
misleading statements, and financial projections that are mere unfounded
assumptions/speculations.65 chanrobleslaw

Thereafter, respondents filed a Manifestation and Update (Re: Compliance to [the CA] Decision dated
September 28, 2012)66 before the Court, stating that it had achieved the EBITDA67 requirement of
the Rehabilitation Plan and made quarterly payments in favor of the bank and non-bank creditors
from December 28, 2014 to September 28, 2015, totalling P27,119,481.79.68 However, the amount
of P8,364,836.53 in favor of PDB was not accepted, and is being held by respondents.69 chanrobleslaw

The Issues Before the Court

The essential issues for the Court's resolution are: (a) whether or not the petition for review
on certiorari was timely filed; and (b) the Rehabilitation Plan is feasible.
The Court's Ruling

I.
The Court first resolves the procedural issue anent the timeliness of the petition's filing.

It is a long-standing doctrine that where a party is represented by several counsels, notice to one is
sufficient, and binds the said party.70 Notice to any one of the several counsels on record is
equivalent to notice to all, and such notice starts the running of the period to appeal notwithstanding
that the other counsel on record has not received a copy of the decision or resolution.71 chanrobleslaw

In the present case, PDB was represented by both Janda Asia & Associates and DivinaLaw. It was not
disputed that Janda Asia & Associates, which remained a counsel of record, albeit, as collaborating
counsel, received notice of the CA's March 5, 2013 Resolution on March 12, 2013. As such, it is from
this date, and not from DivinaLaw's receipt of the notice of said resolution on April 3, 2013 that the
fifteen (15)-day period72 to file the petition for review on certiorari before the Court started to run.

Hence, petitioners only had until March 27, 2013 to file a petition for review on certiorari before the
Court, and the petition filed on April 18, 2013 was filed out of time. Notably, there is no showing that
the CA had already resolved PAGTI's motion for substitution;73 hence, it remained bound by the
proceedings and the judgment rendered against its transferor, PDB.

Generally, the failure to perfect an appeal in the manner and within the period provided for by law
renders the decision appealed from final and executory,74 and beyond the competence of the Court to
review. However, the Court has repeatedly relaxed this procedural rule in the higher interest of
substantial justice. In Barnes v. Padilla,75 it was held that:
ChanRoblesVirtualawlibrary

[A] final and executory judgment can no longer be attacked by any of the parties or be modified,
directly or indirectly, even by the highest court of the land.

However, this Court has relaxed this rule in order to serve substantial justice[,] considering (a)
matters of life, liberty, honor or property, (b) the existence of special or compelling circumstances,
(c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party
favored by the suspension of the rules, (e) a lack of any showing that the review sought is merely
frivolous and dilatory, and (f) the other party will not be unjustly prejudiced thereby.76 chanroblesvirtuallawlibrary

After a meticulous scrutiny of this case, the Court finds that the unjustified rehabilitation of
respondents, by virtue of the CA ruling if so allowed to prevail, warrants the relaxation of the
procedural rule violated by petitioners in the higher interest of substantial justice. The reasons
therefor are hereunder explained.

II.

Rehabilitation is statutorily defined under Republic Act No. 10142,77 otherwise known as the
"Financial Rehabilitation and Insolvency Act of 2010" (FRIA), as follows: ChanRoblesVirtualawlibrary

Section 4. Definition of Terms. - As used in this Act, the term: x x x x

(gg) Rehabilitation shall refer to the restoration of the debtor to a condition of successful

operation and solvency, if it is shown that its continuance of operation is economically feasible and
its creditors can recover by way of the present value of payments projected in the plan, more if the
debtor continues as a going concern than if it is immediately liquidated. (Emphasis supplied)
Case law explains that corporate rehabilitation contemplates a continuance of corporate life and
activities in an effort to restore and reinstate the corporation to its former position of
successful operation and solvency, the purpose being to enable the company to gain a new
lease on life and allow its creditors to be paid their claims out of its earnings.78 Thus, the
basic issues in rehabilitation proceedings concern the viability and desirability of continuing the
business operations of the distressed corporation,79 all with a view of effectively restoring it to a state
of solvency or to its former healthy financial condition through the adoption of a rehabilitation plan.

III.

In the present case, however, the Rehabilitation Plan failed to comply with the minimum
requirements, i.e.: (a) material financial commitments to support the rehabilitation plan; and (b) a
proper liquidation analysis, under Section 18, Rule 3 of the 2008 Rules of Procedure on Corporate
Rehabilitation80 (Rules), which Rules were in force at the time respondents' rehabilitation petition was
filed on April 8, 2011:ChanRoblesVirtualawlibrary

Section 18. Rehabilitation Plan. - The rehabilitation plan shall include (a) the desired business targets
or goals and the duration and coverage of the rehabilitation; (b) the terms and conditions of such
rehabilitation which shall include the manner of its implementation, giving due regard to the interests
of secured creditors such as, but not limited, to the non-impairment of their security liens or
interests; (c) the material financial commitments to support the rehabilitation plan; (d) the
means for the execution of the rehabilitation plan, which may include debt to equity conversion,
restructuring of the debts, dacion en pago or sale or exchange or any disposition of assets or of the
interest of shareholders, partners or members; (e) a liquidation analysis setting out for each
creditor that the present value of payments it would receive under the plan is more than
that which it would receive if the assets of the debtor were sold by a liquidator within a
six-month period from the estimated date of filing of the petition; and (f) such other relevant
information to enable a reasonable investor to make an informed decision on the feasibility of the
rehabilitation plan. (Emphases supplied)
The Court expounds.

A. Lack of Material Financial Commitment to Support the Rehabilitation Plan.

A material financial commitment becomes significant in gauging the resolve, determination,

earnestness, and good faith of the distressed corporation in financing the proposed rehabilitation
plan. This commitment may include the voluntary undertakings of the stockholders or the would-
be investors of the debtor-corporation indicating their readiness, willingness, and ability to contribute
funds or property to guarantee the continued successful operation of the debtor-corporation
during the period of rehabilitation.81 chanrobleslaw

In this case, respondents' Chief Operating Officer, Primo D. Mateo, Jr., in his executed Affidavit of
General Financial Condition82 dated April 8, 2011, averred that respondents will not require the
infusion of additional capital as he, instead, proposed to have all accrued penalties, charges, and
interests waived, and a reduced interest rate prospectively applied to all respondents' obligations, in
addition to the implementation of a two (2)-year grace period.83 Thus, there appears to be no
concrete plan to build on respondents' beleaguered financial position through substantial investments
as the plan for rehabilitation appears to be pegged merely on financial reprieves. Anathema to the
true purpose of rehabilitation, a distressed corporation cannot be restored to its former position of
successful operation and regain solvency by the sole strategy of delaying payments/waiving accrued
interests and penalties at the expense of the creditors.

The Court also notes that while respondents have substantial total assets, a large portion of the
assets of Fastech Synergy84 and Fastech Properties85 is comprised of noncurrent assets,86 such as
advances to affiliates which include Fastech Microassembly,87 and investment properties which form
part of the common assets of Fastech Properties, Fastech Electronique, and Fastech
Microassembly.88 Moreover, while there is a claim that unnamed customers have made investments
by way of consigning production equipment, and advancing money to fund procurement of various
equipment intended to increase production capacity,89 this can hardly be construed as a material
financial commitment which would inspire confidence that the rehabilitation would turn out to be
successful. Case law holds that nothing short of legally binding investment commitment/s from third
parties is required to qualify as a material financial commitment.90 Here, no such binding investment
was presented.

B. Lack of Liquidation Analysis.

Respondents likewise failed to include any liquidation analysis in their Rehabilitation Plan. The total
liquidation assets and the estimated liquidation return to the creditors, as well as the fair market
value vis-a-vis the forced liquidation value of the fixed assets were not shown. As such, the Court
could not ascertain if the petitioning debtor's creditors can recover by way of the present value of
payments projected in the plan, more if the debtor continues as a going concern than if it is
immediately liquidated. This is a crucial factor in a corporate rehabilitation case, which the CA,
unfortunately, failed to address.

C. Effect of Non-Compliance.

The failure of the Rehabilitation Plan to state any material financial commitment to support
rehabilitation, as well as to include a liquidation analysis, renders the CA's considerations for
approving the same, i.e., that: (a) respondents would be able to meet their obligations to their
creditors within their operating cash profits and other assets without disrupting their business
operations; (b) the Rehabilitation Receiver's opinion carries great weight; and (c) rehabilitation will
be beneficial for respondents' creditors, employees, stockholders, and the economy,91 as
actually unsubstantiated, and hence, insufficient to decree the feasibility of respondents'
rehabilitation. It is well to emphasize that the remedy of rehabilitation should be denied to
corporations that do not qualify under the Rules. Neither should it be allowed to corporations whose
sole purpose is to delay the enforcement of any of the rights of the creditors.

Even if the Court were to set aside the failure of the Rehabilitation Plan to comply with the
fundamental requisites of material financial commitment to support the rehabilitation and an
accompanying liquidation analysis, a review of the financial documents presented by respondents
fails to convince the Court of the feasibility of the proposed plan.

IV.

The test in evaluating the economic feasibility of the plan was laid down in Bank of the Philippine
Islands v. Sarabia Manor Hotel Corporation92 (Bank of the Philippine Islands), to wit: ChanRoblesVirtualawlibrary

In order to determine the feasibility of a proposed rehabilitation plan, it is imperative that a thorough
examination and analysis of the distressed corporation's financial data must be conducted. If the
results of such examination and analysis show that there is a real opportunity to rehabilitate the
corporation in view of the assumptions made and financial goals stated in the proposed rehabilitation
plan, then it may be said that a rehabilitation is feasible. In this accord, the rehabilitation court
should not hesitate to allow the corporation to operate as an on-going concern, albeit under the
terms and conditions stated in the approved rehabilitation plan. On the other hand, if the results of
the financial examination and analysis clearly indicate that there lies no reasonable probability that
the distressed corporation could be revived and that liquidation would, in fact, better subserve the
interests of its stakeholders, then it may be said that a rehabilitation would not be feasible. In such
case, the rehabilitation court may convert the proceedings into one for liquidation.93 chanroblesvirtuallawlibrary

94
In the recent case of Viva Shipping Lines, Inc. v. Keppel Philippines Mining, Inc.,  the Court took
note of the characteristics of an economically feasible rehabilitation plan as opposed to an infeasible
rehabilitation plan:
ChanRoblesVirtualawlibrary

Professor Stephanie V. Gomez of the University of the Philippines College of Law suggests specific
characteristics of an economically feasible rehabilitation plan:

a. The debtor has assets that can generate more cash if used in its daily operations than if
sold.
 b. Liquidity issues can be addressed by a practicable business plan that will generate
enough cash to sustain daily operations.

c. The debtor has a definite source of financing for the proper and full implementation of a
Rehabilitation Plan that is anchored on realistic assumptions and goals.

These requirements put emphasis on liquidity: the cash flow that the distressed corporation will
obtain from rehabilitating its assets and operations. A corporation's assets may be more than its
current liabilities, but some assets may be in the form of land or capital equipment, such as
machinery or vessels. Rehabilitation sees to it that these assets generate more value if used
efficiently rather than if liquidated.

On the other hand, this court enumerated the characteristics of a rehabilitation plan that is
infeasible:
chanRoblesvirtualLawlibrary

(a) the absence of a sound and workable business plan;

(b) baseless and unexplained assumptions, targets and goals;
(c) speculative capital infusion or complete lack thereof for the execution of the business plan;
(d) cash flow cannot sustain daily operations; and
(e) negative net worth and the assets are near full depreciation or fully depreciated.

In addition to the tests of economic feasibility, Professor Stephanie V. Gomez also suggests that the
Financial and Rehabilitation and Insolvency Act of 2010 emphasizes on rehabilitation that provides for
better present value recovery for its creditors.

Present value recovery acknowledges that, in order to pave way for rehabilitation, the creditor will
not be paid by the debtor when the credit falls due. The court may order a suspension of payments
to set a rehabilitation plan in motion; in the meantime, the creditor remains unpaid. By the time the
creditor is paid, the financial and economic conditions will have been changed. Money paid in the past
has a different value in the future. It is unfair if the creditor merely receives the face value of the
debt. Present value of the credit takes into account the interest that the amount of money would
have earned if the creditor were paid on time.

Trial courts must ensure that the projected cash flow from a business' rehabilitation plan allows for
the closest present value recovery for its creditors. If the projected cash flow is realistic and allows
the corporation to meet all its obligations, then courts should favor rehabilitation over liquidation.
However, if the projected cash flow is unrealistic, then courts should consider converting the
proceedings into that for liquidation to protect the creditors.95 chanroblesvirtuallawlibrary

A perusal of the 2009 audited financial statements shows that respondents' cash operating
position96 was not even enough to meet their maturing obligations. Notably, their current assets were
materially lower than their current liabilities,97 and consisted mostly of advances to related parties in
the case of Fastech Microassembly, Fastech Electronique, and Fastech Properties.98 Moreover, the
independent auditors recognized the absence of available historical or reliable market information to
support the assumptions made by the management to determine the recoverable amount (value in
use) of respondents' properties and equipment.99 chanrobleslaw

On the other hand, respondents' unaudited financial statements for the year 2010, and the months of
February and March 2011 were unaccompanied by any notes or explanation on how the figures were
arrived at. Besides, respondents' cash operating position remained insufficient to meet their maturing
obligations as their current assets are still substantially lower than their current liabilities.100 The
Court also notes the RTC-Makati's observation that respondents added new accounts and/or
deleted/omitted certain accounts,101 but failed to explain or justify the same.
Verily, respondents' Rehabilitation Plan should have shown that they have enough serviceable assets
to be able to continue its business operation. In fact, as opposed to this objective, the revised
Rehabilitation Plan still requires "front load Capex spending" to replace common equipment and
facility equipment to ensure sustainability of capacity and capacity robustness,102 thus, further
sacrificing respondents' cash flow. In addition, the Court is hard-pressed to see the effects of the
outcome of the streamlining of respondents' manufacturing operations on the carrying value of their
existing properties and equipment.

In fine, the Rehabilitation Plan and the financial documents submitted in support thereof fail to show
the feasibility of rehabilitating respondents' business.

V.

The CA's reliance on the expertise of the court-appointed Rehabilitation Receiver, who opined that
respondents' rehabilitation is viable, in order to justify its finding that the financial statements
submitted were reliable, overlooks the fact that the determination of the validity and the approval of
the rehabilitation plan is not the responsibility of the rehabilitation receiver, but remains the function
of the court. The rehabilitation receiver's duty prior to the court's approval of the plan is to study the
best way to rehabilitate the debtor, and to ensure that the value of the debtor's properties is
reasonably maintained; and after approval, to implement the rehabilitation plan.103 Notwithstanding
the credentials of the court-appointed rehabilitation receiver, the duty to determine the feasibility of
the rehabilitation of the debtor rests with the court. While the court may consider the receiver's
report favorably recommending the debtor's rehabilitation, it is not bound thereby if, in its judgment,
the debtor's rehabilitation is not feasible.

The purpose of rehabilitation proceedings is not only to enable the company to gain a new lease on
life, but also to allow creditors to be paid their claims from its earnings when so rehabilitated. Hence,
the remedy must be accorded only after a judicious regard of all stakeholders' interests; it is not a
one-sided tool that may be graciously invoked to escape every position of distress.104 Thus, the
remedy of rehabilitation should be denied to corporations whose insolvency appears to be irreversible
and whose sole purpose is to delay the enforcement of any of the rights of the creditors, which is
rendered obvious by: (a) the absence of a sound and workable business plan; (b) baseless and
unexplained assumptions, targets, and goals; and (c) speculative capital infusion or complete lack
thereof for the execution of the business plan,105 as in this case.

VI.

In view of all the foregoing, the Court is therefore constrained to grant the instant petition,
notwithstanding the preliminary technical error as above-discussed. A distressed corporation should
not be rehabilitated when the results of the financial examination and analysis clearly indicate that
there lies no reasonable probability that it may be revived, to the detriment of its numerous
stakeholders which include not only the corporation's creditors but also the public at large. In Bank of
the Philippine Islands:106
Recognizing the volatile nature of every business, the rules on corporate rehabilitation have been
crafted in order to give companies sufficient leeway to deal with debilitating financial predicaments in
the hope of restoring or reaching a sustainable operating form if only to best accommodate the
various interests of all its stakeholders, may it be the corporation's stockholders, its creditors, and
even the general public.107chanroblesvirtuallawlibrary

Thus, the higher interest of substantial justice will be better subserved by the reversal of the CA
Decision. Since the rehabilitation petition should not have been granted in the first place, it is of no
moment that the Rehabilitation Plan is currently under implementation. While payments in
accordance with the Rehabilitation Plan were already made, the same were only possible because of
the financial reprieves and protracted payment schedule accorded to respondents, which, as above-
intimated, only works at the expense of the creditors and ultimately, do not meet the true purpose of
rehabilitation.
WHEREFORE, the petition is GRANTED. The Decision dated September 28, 2012 and the Resolution
dated March 5, 2013 of the Court of Appeals in CA-G.R. SP No. 122836 are
hereby REVERSED and SET ASIDE. Accordingly, the Joint Petition for corporate rehabilitation filed
by respondents Fastech Synergy Philippines, Inc. (formerly First Asia System Technology, Inc.),
Fastech Microassembly & Test, Inc., Fastech Electronique, Inc., and Fastech Properties, Inc., before
the Regional Trial Court of Makati City, Branch 149 in SP Case No. M-7130 is DISMISSED.

SO ORDERED. chanRoblesvirtualLawlibrary