Indecent judge

In the fresh case of REYES vs. JUDGE DUQUE, En Banc, A.M. No. RTJ-08-2136, Sept. 21, 2010, the Philippine Supreme Court found the respondent Judge Manuel N. Duque, of Las Pinas City, GUILTY of IMPROPRIETY and GROSS MISCONDUCT. The judge having previously retired from the service, it imposed on him a FINE of P40,000 to be deducted from his retirement benefits.



In her Verified Complaint, Susan O. Reyes (Reyes) charged respondent Judge Manuel N. Duque (Judge Duque) of the Regional Trial Court, Branch 197, Las Piñas City (RTC-Branch 197), with Impropriety, Corruption and Gross Misconduct. Reyes alleged that she was a party-in-intervention in Land Registration Case No. 06-005 entitled “In re: Petition of Philippine Savings Bank for Issuance of a Writ of Possession under Act No. 3135 over Properties covered by TCT Nos. T-85172 and T-84847” filed by the Philippine Savings Bank (bank) against the spouses Carolyn Choi and Nak San Choi (spouses Choi). In a Decision dated 6 November 2006, Judge Duque granted the motion for the issuance of a writ of possession in favor of the bank and ordered the spouses Choi and all those claiming rights under them to vacate the properties covered by TCT Nos. T-85172, T-84848, and T-84847 situated in BF Resort Village, Talon 2, Las Piñas. On 13 August 2007, Reyes filed an “Urgent Petition for Lifting and Setting Aside of Writ of Possession and Quashal of Notice to Vacate” claiming that she bought the subject property covered by TCT No. T-85172 from the spouses Choi and that she was in actual possession of the property with full knowledge of the bank.

At the hearing of Reyes’ petition, Atty. Herminio Ubana, Sr., (Atty. Ubana) the lawyer of Reyes, introduced her to Judge Duque who allegedly gave Reyes 30 days to settle matters with the bank. Reyes was unable to re-negotiate with the bank. On the first week of December 2007, Reyes allegedly received a phone call from Judge Duque and the latter instructed Reyes to go “to his house and bring some money in order that he can deny the pending motion to break open.” As she did not have the money yet, Reyes allegedly told Judge Duque that she would see him the following day as her allotment might arrive by that time. The following day, when her allotment arrived, Reyes went to the PNB Cubao Branch in Quezon City to withdraw P20,000. She, her secretary, and driver went to the house of Judge Duque at No. 9 CRM Corazon, BF Almanza, Las Piñas. The son of Judge Duque opened the gate. At his house, Judge Duque demanded P100,000. Reyes gave him P20,000 and she asked for time to give him the balance. After a week, Atty. Ubana called Reyes telling her that Judge Duque was asking for her and waiting for the balance he demanded. On 21 December 2007, Reyes went to the house of Judge Duque with P18,000 on hand. Judge Duque allegedly scolded her for not bringing the whole amount of P80,000. Reyes explained that she had difficulty raising the amount. Judge Duque locked the main door of his house and asked Reyes to step into his office. Judge Duque pointed to a calendar posted on the wall and pointed to December 26 as the date when she should complete the amount. All of a sudden, Judge Duque held the waist of Reyes, embraced and kissed her. Reyes tried to struggle and free herself. Judge Duque raised her skirt, opened her blouse and sucked her breasts. He touched her private parts and attempted to have sexual intercourse with Reyes. Reyes shouted for help but the TV was too loud. As a desperate move, Reyes appealed to Judge Duque saying: “kung gusto mo, huwag dito. Sa hotel, sasama ako sayo.” Judge Duque suddenly stopped his sexual advances and ordered Reyes to fix her hair.

The doctrinal parts of the decision of the Court are quoted below, thus:

1. On the charge of graft and corruption, the Investigating Justice and the OCA found insufficient evidence to sustain Reyes’ allegation that Judge Duque demanded and received money from her in consideration of a favorable ruling. Thus, this charge should be dismissed for being unsubstantiated.

2. On the charge of impropriety and gross misconduct, and after a thorough investigation conducted by the Investigating Justice, it was established, and Judge Duque admitted, that Reyes went to his house. Substantial evidence also pointed to Judge Duque’s liability for impropriety and gross misconduct when he sexually assaulted Reyes. There is no need to detail again the lewd acts of Judge Duque. The Investigating Justice’s narration was sufficient and thorough. The Investigating Justice likewise observed that Judge Duque merely attempted to destroy the credibility of Reyes when he insinuated that she could be a “woman of ill repute or a high class prostitute” or one whose “moral value is at its lowest level.” However, no judge has a right to solicit sexual favors from a party litigant even from a woman of loose morals.

3. We have repeatedly reminded members of the Judiciary to so conduct themselves as to be beyond reproach and suspicion, and to be free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday lives. For no position exacts a greater demand on the moral righteousness and uprightness of an individual than a seat in the Judiciary. Judges are mandated to maintain good moral character and are at all times expected to observe irreproachable behavior so as not to outrage public decency. We have adhered to and set forth the exacting standards of morality and decency, which every member of the judiciary must observe. A magistrate is judged not only by his official acts but also by his private morals, to the extent that such private morals are externalized. He should not only possess proficiency in law but should likewise possess moral integrity for the people look up to him as a virtuous and upright man.


4. Judges should avoid impropriety and the appearance of impropriety in all of their activities. Judges should conduct themselves in a way that is consistent with the dignity of the judicial office. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they should always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.

5. The conduct of Judge Duque fell short of the exacting standards for members of the judiciary. He failed to behave in a manner that would promote confidence in the judiciary. Considering that a judge is a visible representation of the law and of justice, he is naturally expected to be the epitome of integrity and should be beyond reproach. Judge Duque’s conduct indubitably bore the marks of impropriety and immorality. He failed to live up to the high moral standards of the judiciary and even transgressed the ordinary norms of decency of society. Had Judge Duque not retired, his misconduct would have merited his dismissal from the service.

Court stenographer dismissed for grave misconduct, deceit.

In the recent case of ESCALONA vs. PADILLO, En Banc & Per Curiam, A.M. No.P-10-2785, Sept. 21, 2010, the Philippine Supreme Court found respondent Consolacion S. Padillo, a Court Stenographer, GUILTY of GRAVE MISCONDUCT. Accordingly, her retirement benefits, except accrued leave credits, were FORFEITED. Her civil service eligibility was CANCELLED and she was PERPETUALLY DISQUALIFIED for reemployment in any branch of the government or any of its agencies or instrumentalities, including government-owned and controlled corporations. This decision was immediately executory.

Complainant Lourdes S. Escalona (Escalona) filed on 22 January 2007 a complaint charging respondent Consolacion S. Padillo (Padillo), Court Stenographer III of the Regional Trial Court (RTC) of Branch 260, Parañaque City with Grave Misconduct. Escalona claimed that she approached Jun Limcaco (Limcaco), the president of their homeowners’ association, regarding her problem with Loresette Dalit (Dalit). Limcaco referred her to Padillo to help facilitate the filing of a case against Dalit. Padillo allegedly promised to prepare the necessary documents and asked for P20,000 purportedly as payment for the prosecutor. Escalona requested that the amount be reduced to P15,000. Padillo received the P15,000 at the Little Quiapo Branch Better Living Subdivision. Thereafter, Escalona received a text message from Padillo informing her that the prosecutor was not amenable to the reduced amount of P15,000. After two weeks, Escalona gave the balance of P5,000 to Padillo allegedly for the service of the warrant of arrest. Escalona was also asked to submit a barangay clearance and to first take an oath before Prosecutor Antonio Arquiza, Jr. and later before Prosecutor Napoleon Ramolete. However, subsequent verification from the Prosecutor’s Office showed no record of a case filed against Dalit. Escalona confronted Padillo who promised to return to her the money. Padillo reneged on her promise. Hence, this complaint.

The Court Administrator, in his Memorandum dated 8 December 2009, found Padillo guilty of grave misconduct for soliciting money from Escalona in exchange for facilitating the filing of a case against Dalit. Padillo’s act of soliciting money from Escalona is an offense which merited the grave penalty of dismissal from the service. However, considering that Padillo tendered her resignation on 18 February 2007, a month after the complaint was filed but did not and had not filed any claim relative to the benefits due her, the Court Administrator recommended that all benefits due her, except accrued leave credits, be forfeited and that she be disqualified from reemployment in any branch of the government or any of its instrumentalities, including government-owned and controlled corporations.

The Supreme Court agreed with the Court Administrator that the Court could no longer impose the penalty of dismissal from the service because Padillo resigned a month after the filing of the administrative complaint. However, her resignation did not render the complaint against her moot. Resignation is not and should not be a convenient way or strategy to evade administrative liability when a court employee is facing administrative sanction.

There was no doubt that Padillo received from Escalona P20,000 purportedly “for fiscal & judge” and “for warrant officer” and this amount was “intended to facilitate” the case against Dalit. This was shown in the receipt signed by Padillo herself.

Section 2, Canon 1 of the Code of Conduct of Court Personnel provides that “(C)ourt personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions.” Section 52 (A)(11) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service also provides that dismissal is the penalty for improper solicitation even if it is the first offense. Section 58(a) of the same Rule provides that the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment in the government service.

Escalona submitted an Affidavit of Desistance alleging that the P20,000 was “refunded” to her and this she “voluntarily accepted” in the presence of Florante Gaerlan, Interpreter of RTC, Branch 119, Pasay City and Erlinda Dineros, Interpreter of RTC, Branch 260, Parañaque City. However, even Escalona’s affidavit of desistance will not absolve Padillo from administrative liability. The Court has always held that the withdrawal of the complaint or the desistance of a complainant does not warrant the dismissal of an administrative complaint. This Court has an interest in the conduct and behavior of its officials and employees and in ensuring at all times the proper delivery of justice to the people. No affidavit of desistance can divest this Court of its jurisdiction under Section 6, Article VIII of the Constitution to investigate and decide complaints against erring officials and employees of the judiciary. The issue in an administrative case is not whether the complainant has a cause of action against the respondent, but whether the employee has breached the norms and standards of the courts. Neither can the disciplinary power of this Court be made to depend on a complainant’s whims. To rule otherwise would undermine the discipline of court officials and personnel. The people, whose faith and confidence in their government and its instrumentalities need to be maintained, should not be made to depend upon the whims and caprices of complainants who, in a real sense, are only witnesses. Administrative actions are not made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. Such unilateral act does not bind this Court on a matter relating to its disciplinary power.

Recent New York Bar ethics opinions

Click the link above to access the latest ethics opinions of the New York Bar Association.

Social networking sites are good sources of relevant and material data that can impeach adverse parties or their witnesses.

When may a trial lawyer access the Facebook or Myspace pages of adverse parties or their witnesses for purposes of impeachment during the trial?

The New York State Bar Association’s Committee on Professional Ethics has determined that an attorney representing a party in pending litigation may access the public pages of another party’s social networking website for the purpose of obtaining information about that party.

The opinion rendered by the Committee on Professional Ethics focused solely on whether an attorney could access information from a party other than the attorney’s client where the information sought was contained in public pages posted by that party and accessible to all members of a particular social networking site.

According to Opinion 843, “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material.

“As long as the lawyer does not ‘friend’ the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 of the New York Rules of Professional Conduct (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by non-lawyers acting at their direction).”

On vague laws: Laserna interview.

Click the link above. The Business World Online recently interviewed me on the topics of vague laws and legal loopholes and their ill effects on the justice system and our democratic form of government. It extensively quoted my opinions.

Report on the Manila Hostage-Taking Incident Released

Click the link above. Full text of the DOJ-led committee report on the Aug. 23, 2010 hostage-taking incident has been posted on www.gov.ph (official Phil. govt portal). Minus the last page containing the names of the officials recommended for indictment. I will digest and analyze the report later this week when I have the time.

Abadilla 5: Carpio's dissent earns the respect of the intelligent.

In the very fresh EN BANC cases of the “ABADILLA 5”, i.e., G.R. No. 182555: LENIDO LUMANOG and AUGUSTO SANTOS, petitioners, v. PEOPLE OF THE PHILIPPINES, respondent; G.R. No. 185123: CESAR FORTUNA, petitioner, v. PEOPLE OF THE PHILIPPINES, respondent; G.R. No. 187745: PEOPLE OF THE PHILIPPINES, plaintiff-appellee, v. SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG, accused, RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, accused-appellants, all dated September 7, 2010, Assoc. Justice A. Carpio’s very strong and persuasive dissenting opinion earned the respect of the intelligent sectors of Philippine society, especially the mass media, for its wisdom and common sense, for which reason, I wish to quote its salient doctrinal parts, e.g., in re: defective identification of the accused, tainted police lineup, right to counsel, media exposure, and presumption of innocence, to wit:

1. An accused has the right to be presumed innocent unless proven guilty beyond reasonable doubt. No less than the fundamental law guarantees such human right. Section 14(2), Article III of the Constitution mandates that “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.” Reinforcing this right, Section 2, Rule 134 of the Rules of Court specifically provides that “In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.”

2. The “presumption of innocence” serves to emphasize that the prosecution has the obligation to prove not only each element of the offense beyond reasonable doubt but also the identity of the accused as the perpetrator. The accused, on the other hand, bears no burden of proof. The prosecution evidence must stand or fall on its own weight and cannot draw strength from the weakness of the defense.

3. As the majority found, “when appellants (accused) were arrested they were already considered suspects: Joel was pinpointed by security guard Alejo who went along with the PARAC squad to Fairview on June 19, 1996, x x x.” In other words, insofar as the police was concerned, Joel was already a suspect even before Alejo went with them to “identify” Joel. In fact, before Alejo pinpointed Joel as one of the suspects, the police showed Alejo a photograph of Joel, supporting the fact that the police focused on Joel as a suspect in the Abadilla killing.

4. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at the time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure. (Emphasis supplied)

5. Hence, in an out-of-court identification, among the factors to be considered is the suggestiveness of the procedure. In this case, the police resorted to a photographic identification of Joel, who was the first suspect to be apprehended and who provided the identities of the other accused.

6. Although showing mug shots of suspects is one of the established methods of identifying criminals, the procedure used in this case is unacceptable. The first rule in proper photographic identification procedure is that a series of photographs must be shown, and not merely that of the suspect. The second rule directs that when a witness is shown a group of pictures, their arrangement and display should in no way suggest which one of the pictures pertains to the suspect.

7. Where a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’s recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, "That’s the man that did it," what he may actually mean is, "That’s the man whose photograph I identified." A recognition of this psychological phenomenon leads logically to the conclusion that where a witness has made a photographic identification of a person, his subsequent corporeal identification of that same person is somewhat impaired in value, and its accuracy must be evaluated in light of the fact that he first saw a photograph. (Emphasis supplied)

8. Similarly, in this case, Alejo was first shown a photograph of Joel before Alejo pinpointed Joel as one of the suspects. The police showed only one photograph, that of Joel’s, highlighting the fact that the police primed and conditioned Alejo to identify Joel as one of the murderers of Abadilla. The police focused on Joel as one of the suspects, prior to Alejo’s identification. The police did not show Alejo any other photograph, only that of Joel’s. Assuming Alejo refused to glance at Joel’s photograph, which is quited unbelievable, the fact that he was shown only one photograph violates standard operating procedures in criminal investigations. Clearly, the police, in showing Alejo only a photograph of Joel, instead of a series of photographs arranged in an unsuspicious manner, breached the recognized rules in photographic identification. Undoubtedly, this procedure seriously corrupted the identification process with impermissible suggestion.



9. In People v. Rodrigo, the Court, speaking thru Justice Arturo Brion, acquitted the accused for failure of the prosecution to identify the accused as the perpetrator of the crime, which identification is extremely crucial to the prosecution’s burden of proof. Stressing the importance of a proper identification of the accused, most especially “when the identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification,” just like in this case, the Court held:

The greatest care should be taken in considering the identification of the accused especially, when this identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification. This level of care and circumspection applies with greater vigor when, as in the present case, the issue goes beyond pure credibility into constitutional dimensions arising from the due process rights of the accused.

x x x x

That a single photograph, not a series, was shown to Rosita is admitted by Rosita herself in her testimony.

x x x x

We hold it highly likely, based on the above considerations, that Rosita’s photographic identification was attended by an impermissible suggestion that tainted her in-court identification of Rodrigo as one of the three robbers. We rule too that based on the other indicators of unreliability we discussed above, Rosita’s identification cannot be considered as proof beyond reasonable doubt of the identity of Rodrigo as one of the perpetrators of the crime.

A first significant point to us is that Rosita did not identify a person whom she had known or seen in the past. The robbers were total strangers whom she saw very briefly. It is unfortunate that there is no direct evidence of how long the actual robbery and the accompanying homicide lasted. But the crime, as described, could not have taken long, certainly not more than a quarter of an hour at its longest. This time element alone raises the question of whether Rosita had sufficiently focused on Rodrigo to remember him, and whether there could have been a reliable independent recall of Rodrigo’s identity.

We also find it significant that three robbers were involved, all three brandishing guns, who immediately announced a holdup. This is an unusual event that ordinarily would have left a person in the scene nervous, confused, or in common parlance, "rattled." To this already uncommon event was added the shooting of Rosita’s husband who charged the robbers with a "bangko" and was promptly shot, not once but three times. These factors add up to our conclusion of the unlikelihood of an independent and reliable identification. (Emphasis supplied)


10. The clear import of Rodrigo is that an out-of-court identification, made by the lone witness, who was subjected to impermissible photographic suggestion, fatally tainted the subsequent in-court identification made by the same witness. Accordingly, the testimony of such witness on the identification of the accused, by itself, cannot be considered as proof beyond reasonable doubt of the identity of the perpetrator of the crime. Without proof beyond reasonable doubt of the identity of the perpetrator, the accused deserves an acquittal.

11. Inasmuch as the present case involves the alleged positive identification by a lone eyewitness and the entire case depends on such identification, the Rodrigo case squarely applies here. Moreover, similar to this case, the witness in Rodrigo was initially shown a single photograph of the accused. Applying Rodrigo to this case, the sole eyewitness Alejo’s out-of-court identification which proceeded from impermissible suggestion tainted his in-court identification of Joel as one of the perpetrators of the crime. As a result, Alejo’s corrupted testimony on the identification of Joel cannot be considered as proof beyond reasonable doubt of the identity of Joel as one of the perpetrators. Without such proof, Joel must be acquitted.
12. Further, it must be emphasized that a highly suggestive identification results in a denial of the accused’s right to due process since it effectively and necessarily deprives the accused of a fair trial. In Rodrigo, the Court stated:

The initial photographic identification in this case carries serious constitutional law implications in terms of the possible violation of the due process rights of the accused as it may deny him his rights to a fair trial to the extent that his in-court identification proceeded from and was influenced by impermissible suggestions in the earlier photographic identification. In the context of this case, the investigators might not have been fair to Rodrigo if they themselves, purposely or unwittingly, fixed in the mind of Rosita, or at least actively prepared her mind to, the thought that Rodrigo was one of the robbers. Effectively, this act is no different from coercing a witness in identifying an accused, varying only with respect to the means used. Either way, the police investigators are the real actors in the identification of the accused; evidence of identification is effectively created when none really exists.




13. In Pineda, the Court pointed out the dangers a photographic identification spawns: an impermissible suggestion and the risk that the eyewitness would identify the person he saw in the photograph and not the person he saw actually committing the crime. Citing Patrick M. Wall, the Court stated:


[W]here a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’ recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, "That’s the man that did it," what he may actually mean is, "That’s the man whose photograph I identified."

x x x x

A recognition of this psychological phenomenon leads logically to the conclusion that where a witness has made a photographic identification of a person, his subsequent corporeal identification of that same person is somewhat impaired in value, and its accuracy must be evaluated in light of the fact that he first saw a photograph.

14. Due process dictates that the photographic identification must be devoid of any impermissible suggestions in order to prevent a miscarriage of justice. In People v. Alcantara, the Court declared:

Due process demands that identification procedure of criminal suspects must be free from impermissible suggestions. As appropriately held in US vs. Wade, “the influence of improper suggestion upon identifying witness probably accounts for more miscarriages of justice than any other single factor.” (Emphasis supplied)

15. Therefore, the police’s act of showing a single photograph to Alejo, prior to “identifying” Joel as a suspect, corrupted the identification procedure with impermissible suggestion. Through this illegal procedure, the police, purposely or otherwise, suggested and implanted on Alejo’s mind that Joel was one of the perpetrators, thereby violating Joel’s right as an accused to due process. Not only did the police disregard recognized and accepted rules in photographic identification, they likewise transgressed the clear mandate of the Constitution that “No person shall be deprived of life, liberty, or property without due process of law.” More particularly, the police violated Section 14(1) of the Constitution which provides: “No person shall be held to answer for a criminal offense without due process of law.”


16. More importantly, the police denied Joel his right to counsel during the line-up, contrary to Section 12(1) of the Constitution which provides:

Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
17. In People v. Escordial, the Court pertinently ruled:

As a rule, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of the custodial inquest. However, the cases at bar are different inasmuch as accused-appellant, having been the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, was already under custodial investigation when these out-of-court identifications were conducted by the police.
An out-of-court identification of an accused can be made in various ways. In a show-up, the accused alone is brought face to face with the witness for identification, while in a police line-up, the suspect is identified by a witness from a group of persons gathered for that purpose. During custodial investigation, these types of identification have been recognized as “critical confrontations of the accused by the prosecution” which necessitate the presence of counsel for the accused. This is because the results of these pre-trial proceedings “might well settle the accused’s fate and reduce the trial itself to a mere formality.” We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a show-up for that matter, after the start of the custodial investigation is inadmissible as evidence against him. (Emphasis supplied)

18. As stated in Escordial, generally, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of custodial investigation. An exception to this rule is when the accused had been the focus of police attention at the start of the investigation. The line-up in this case squarely falls under this exception. It was established that Joel was already a suspect prior to the police line-up. In fact, even before Joel’s apprehension, the police had already zeroed in on Joel as one of Abadilla’s killers. As such, Joel was entitled to counsel during the police line-up.

However, there is no question that Joel was not assisted by counsel, whether of his own choice or provided by the police, during the line up. As Joel’s identification was uncounseled, it cannot be admitted in evidence for grossly violating Joel’s right to counsel under Section 12(1) of the Constitution.
19. Further, the Court held in Escordial that the testimony of the witness regarding the inadmissible identification cannot be admitted as well, thus:

Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police line-up on various dates after his arrest. Having been made when accused-appellant did not have the assistance of counsel, these out-of-court identifications are inadmissible in evidence against him. Consequently, the testimonies of these witnesses regarding these identifications should have been held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’”


20. Citing Patrick M. Wall, the majority enumerated the danger signals which give warning that the identification may be erroneous even though the method used is proper. Contrary to the majority, some of these danger signals are present in this case: (1) a serious discrepancy exists between the identifying witness’ original description and the actual description of the accused; (2) the limited opportunity on the part of the witness to see the accused before the commission of the crime; (3) a considerable time elapsed between the witness’ view of the criminal and his identification of the accused; and (4) several persons committed the crime.

21. The majority’s explanation is purely speculative. There was no evidence presented to prove (1) that Joel plied his tricycle everyday during daytime; (2) the amount of Joel’s exposure to sunlight; and (3) such exposure was excessive as to result to premature aging of the facial skin. Moreover, Joel’s height is 5’9” whereas the man whom Alejo described as lookout was about 5’5”-5’6” tall. There was no explanation offered as to the disparity in the height. To repeat, Alejo described only one lookout in his sworn statement, contrary to his testimony that there were two lookouts.


22. We agree with the accused that the swiftness by which the crime was committed and the physical impossibility of memorizing the faces of all the perpetrators of the crime whom the witness saw for the first time and only for a brief moment under life-threatening and stressful circumstances incite disturbing doubts as to whether the witness could accurately remember the identity of the perpetrators of the crime.
23. The crime took place on 13 June 1996, while Alejo testified in August 1996. Alejo was never made to identify Lumanog, Santos, Rameses, and Fortuna prior to their arrest until their in-court identification was made. Two months had elapsed between Alejo’s view of the criminals and his identification of the accused in open court. Alejo’s memory, just like any other human’s, is frail. In fact, as noted by the trial court, Alejo’s recollection at the time he gave his statement before the police investigators was more recent and fresher than when Alejo testified in court. Accordingly, the trial court gave more credence to Alejo’s sworn statement than his testimony in acquitting Delos Santos.

24. The police did not posses any description or prior identification of these accused. There was no leading information, or any piece of reliable information for that matter, on the identity of the killers, except Joel’s illegally extracted extrajudicial confession. Neither did the police have any evidence linking the other accused to the crime. To repeat, Joel provided the police, through a coerced confession, with the identities of his supposed co-conspirators and where they could be found. Clearly, “the police investigators are the real actors in the identification of the accused; evidence of identification is effectively created when none really exists.”


25. In Escordial, the Court stated that the testimonies of the witnesses on the identification of the accused should be held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’” Here, being a direct result of an illegal police activity, that is the coerced extraction of a confession from Joel, the subsequent in-court identification by Alejo of Lumanog, Rameses, Fortuna and Santos must be rejected. The testimony of Alejo on the identification of the accused as perpetrators of the crime cannot be given any weight. Alejo’s in-court identification of Lumanog, Rameses, Fortuna, and Santos was fatally tainted because the identity of the suspects came from a coerced confession of Joel, who himself was identified as a suspect through a fatally defective impermissible suggestion to Alejo. In short, Alejo’s identification of Joel was fatally defective; Alejo’s identification of Lumanog, Rameses, Fortuna and Santos was also fatally defective. Both identification directly emanated from illegal police activities – impermissible suggestion and coerced confession.



26. After the police investigators had illegally extracted from Joel the identities and locations of the other suspects, and after they had arrested Lumanog, Rameses, Fortuna and Santos, the police proudly declared: “crime solved” and “case closed.” With this remarkable development, the accused were presented before the media in a press conference in Camp Crame on 24 June 1996 or 11 days after the killing. The accused were photographed by mediamen and interviewed by members of the press. During the press conference, the accused were made to squat on the floor, their names written on boards dangling from their necks.

Indisputably, the police extracted the identities of the accused from a coerced confession of Joel. Then the police arrested the accused, and allowed the media to take their pictures with their names written on boards around their necks. The media promptly published these pictures in several newspapers. Thus, at that time, the faces of the accused were regularly splashed all over the newspapers and on television screens in news reports. Alejo could not have missed seeing the faces of the accused before he identified them in court. To rule otherwise strains credulity.

27. Alejo, as the star witness in this case, must naturally be interested to look, or even stare, at the faces of the alleged killers to make sure he identifies them in court. Assuming Alejo failed to personally see the faces of the accused in the newspapers or television, which is highly improbable, if not totally impossible, his family and friends, if not the police, would have provided him with photographs of the accused from the newspapers for easier identification later in court. Surely, Alejo had ample time to memorize and familiarize himself with the faces of the accused before he testified in court and identified Lumanog, Santos, Rameses, Joel, and Fortuna as the killers of Abadilla.

To give credence to Alejo’s in-court identification of the accused is to admit and give probative value to the coerced confession of Joel. Clearly, the publication of the pictures of the accused in the newspapers and television came directly from the coerced confession of Joel. Alejo would not have been able to identify the accused without the pictures of the accused that were taken by media as a result of the coerced confession of Joel.

28. Inexplicably, the majority fails to consider this extensive media exposure of the accused in ascertaining the reliability and admissibility of Alejo’s testimony on the identities of the accused. The majority ignores the fact that Alejo had seen the accused in print and on television, guaranteeing Alejo’s in-court identification of the accused as the perpetrators of the crime. The media exposure of the accused casts serious doubts on the integrity of Alejo’s testimony on the identification of the murderers. Such doubts are sufficient to rule that Alejo’s in-court identification of the accused as the perpetrators of the crime is neither positive nor credible. “It is not merely any identification which would suffice for conviction of the accused. It must be positive identification made by a credible witness, in order to attain the level of acceptability and credibility to sustain moral certainty concerning the person of the offender.”




29. The police arrested Joel, without any warrant, on 19 June 1996 or six days after the killing. Six days is definitely more than enough to secure an arrest warrant, and yet the police opted to arrest Joel and the other accused, without any warrant, claiming that it was conducted in “hot pursuit.” In law enforcement, “hot pursuit” can refer to an immediate pursuit by the police such as a car chase. Certainly, the warrantless arrrest of Joel, made six days after the murder, does not fall within the ambit of “hot pursuit.” The question now is whether the successive warrantless arrests of the accused are legal. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

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



30. None of the above instances is present in this case: (1) the accused were not arrested in flagrante delicto; (2) the arrest was not based on personal knowledge of the arresting officers that there is probable cause that the accused were the authors of the crime which had just been committed; (3) the accused were not prisoners who have escaped from custody serving final judgment or temporarily confined while their case is pending. There is no question that all the accused were apprehended several days after the crime while doing ordinary and unsuspicious activities. There is also no question that the police had no personal knowledge of probable cause that the accused were responsible for the crime which had been committed. The third situation is inapplicable since the accused are not prison escapees. Considering these facts, there is indeed no justification for the warrantless arrests effected by the police in their so-called “hot pursuit.” Such warrantless arrest, therefore, amounts to a violation of Section 2, Article III of the Constitution, which provides:

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.


31. The police investigation work in this case, which led to the unlawful warrantless arrest of the accused, is nothing but sloppy: (1) they chose to rely solely on the sworn statement of one eyewitness (Alejo); (2) they failed to obtain any description of the suspects from other eyewitnesses, including the owner of the Kia Pride which was forcefully obtained by the suspects as a get-away car; (3) they showed Alejo a picture of Joel to assist him in identifying the “suspect”; and (4) they arrested the other accused based entirely on the illegally extracted extrajudicial confession of Joel.

32. Worse than their illegal warrantless arrest, the accused reportedly underwent unspeakable torture in the hands of the police. While the Commission on Human Rights, “in its Resolution dated July 16, 1996, did not make any categorical finding of physical violence inflicted on the appellants by the police authorities, the CHR found prima facie evidence that the police officers could have violated Republic Act No. 7438, particularly on visitorial rights and the right to counsel, including the law on arbitrary detention, x x x.”

33. The speedy resolution of a crime is never a license for the police to apprehend any person and beat him to admit his participation in a gruesome crime. In this case, without any credible evidence linking the accused to the murder, the police blindly resorted to careless investigation and unlawful apprehension of innocent men. Worse, the police apparently tortured the accused to answer for the brutal slaying of Abadilla.

34. Indisputably, torturing the accused to extract incriminating confessions is repugnant to the Constitution. Section 12(2), Article III of the Constitution expressly provides “[n]o torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against [an accused].” The blatant and unacceptable transgression of the accused’s constitutional rights, for the sake of delivering speedy, but false, justice to the aggrieved, can never be countenanced. This Court can never tolerate official abuses and perpetuate the gross violation of these rights. The presumption that a public officer had regularly performed his official duty can at no instance prevail over the presumption of innocence.

35. In reviewing criminal cases, the Court must carefully determine and establish “first, the identification of the accused as perpetrator of the crime, taking into account the credibility of the prosecution witness who made the identification as well as the prosecution’s compliance with legal and constitutional standards; and second, all the elements constituting the crime were duly proven by the prosecution to be present.” The inexistence of any of these two factors compels us to acquit the accused.


36. It devolves upon the police authorities, as law enforcers, to ensure the proper and strict implementation of the laws, most specially, the fundamental law of the land. Lamentably, the present case showcases the dark reality in our country, where the police at times assumes the role of law offenders. The policemen, boasting of solving a highly sensationalized crime, flagrantly disregarded the accused’s constitutional rights. These men in uniform openly defiled the Constitution, which they are bound to observe and respect, by infringing upon the accused’s rights guaranteed under (1) Section 1, Article III; (2) Section 14(1); (3) Section 12(1); (4) Section 12 (2); and (5) Section 2, Article III of the Constitution. Such violations simply cannot be countenanced. Instead, they deserve utmost condemnation. As the Court declared emphatically in Alcantara:


The records show that [the police] illegally arrested appellant, arbitrarily detained, physically abused and coerced him to confess to a crime penalized by nothing less than reclusion perpetua. Too often, our law
enforcers, in their haste to solve crimes, strip people accused of serious
offenses of the sanctity of their constitutional rights. It is again time to pound on these law enforcers with the crania of cavern men that the guarantees of the rights of an accused in the Constitution are not mere saccharine statements but the bedrock of our liberty. If we allow a meltdown of these guarantees, our democracy will be a delusion. (Emphasis supplied)


37. In view of the gross violations of the accused’s constitutional rights as well as the seriously flawed identification of the accused as the perpetrators of the crime, there is sufficient reason to doubt the accused’s guilt for the crime charged. To repeat, the prosecution failed to discharge its burden of proof, specifically to prove the identity of the perpetrators of the crime beyond reasonable doubt. Accordingly, the presumption of innocence in favor of the accused prevails. The accused need not even raise the defenses of denial and alibi as the burden of proof never shifted to the defense. “Any consideration of the merits of these defenses is rendered moot and will serve no useful purpose.” Therefore, the accused are entitled to an acquittal.

Melissa Roxas' writ of amparo; partial (phyrric) victory

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF HABEAS DATA IN FAVOR OF MELISSA C. ROXAS. MELISSA C. ROXAS, Petitioner, vs. GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN. VICTOR S. IBRADO, P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN N. BANGIT, PC/SUPT. LEON NILO A. DELA CRUZ, MAJ. GEN. RALPH VILLANUEVA, PS/SUPT. RUDY GAMIDO LACADIN, AND CERTAIN PERSONS WHO GO BY THE NAME[S] DEX, RC AND ROSE, Respondents. En Banc, G.R. No. 189155, September 7, 2010


D E C I S I O N

PEREZ, J.:





At bench is a Petition For Review on Certiorari[1] assailing the Decision[2] dated 26 August 2009 of the Court of Appeals in CA-G.R. SP No. 00036-WRA — a petition that was commenced jointly under the Rules on the Writ of Amparo (Amparo Rule) and Habeas Data (Habeas Data Rule). In its decision, the Court of Appeals extended to the petitioner, Melissa C. Roxas, the privilege of the writs of amparo and habeas data but denied the latter’s prayers for an inspection order, production order and return of specified personal belongings. The fallo of the decision reads:



WHEREFORE, the Petition is PARTIALLY MERITORIOUS. This Court hereby grants Petitioner the privilege of the Writ of Amparo and Habeas Data.



Accordingly, Respondents are enjoined to refrain from distributing or causing the distribution to the public of any records in whatever form, reports, documents or similar papers relative to Petitioner’s Melissa C. Roxas, and/or Melissa Roxas; alleged ties to the CPP-NPA or pertinently related to the complained incident. Petitioner’s prayers for an inspection order, production order and for the return of the specified personal belongings are denied for lack of merit. Although there is no evidence that Respondents are responsible for the abduction, detention or torture of the Petitioner, said Respondents pursuant to their legally mandated duties are, nonetheless, ordered to continue/complete the investigation of this incident with the end in view of prosecuting those who are responsible. Respondents are also ordered to provide protection to the Petitioner and her family while in the Philippines against any and all forms of harassment, intimidation and coercion as may be relevant to the grant of these reliefs.[3]



We begin with the petitioner’s allegations.



Petitioner is an American citizen of Filipino descent.[4] While in the United States, petitioner enrolled in an exposure program to the Philippines with the group Bagong Alyansang Makabayan-United States of America (BAYAN-USA) of which she is a member.[5] During the course of her immersion, petitioner toured various provinces and towns of Central Luzon and, in April of 2009, she volunteered to join members of BAYAN-Tarlac[6] in conducting an initial health survey in La Paz, Tarlac for a future medical mission.[7]



In pursuit of her volunteer work, petitioner brought her passport, wallet with Fifteen Thousand Pesos (P15,000.00) in cash, journal, digital camera with memory card, laptop computer, external hard disk, IPOD,[8] wristwatch, sphygmomanometer, stethoscope and medicines.[9]



After doing survey work on 19 May 2009, petitioner and her companions, Juanito Carabeo (Carabeo) and John Edward Jandoc (Jandoc), decided to rest in the house of one Mr. Jesus Paolo (Mr. Paolo) in Sitio Bagong Sikat, Barangay Kapanikian, La Paz, Tarlac.[10] At around 1:30 in the afternoon, however, petitioner, her companions and Mr. Paolo were startled by the loud sounds of someone banging at the front door and a voice demanding that they open up.[11]



Suddenly, fifteen (15) heavily armed men forcibly opened the door, barged inside and ordered petitioner and her companions to lie on the ground face down.[12] The armed men were all in civilian clothes and, with the exception of their leader, were also wearing bonnets to conceal their faces.[13]



Petitioner tried to protest the intrusion, but five (5) of the armed men ganged up on her and tied her hands.[14] At this juncture, petitioner saw the other armed men herding Carabeo and Jandoc, already blindfolded and taped at their mouths, to a nearby blue van. Petitioner started to shout her name.[15] Against her vigorous resistance, the armed men dragged petitioner towards the van—bruising her arms, legs and knees.[16] Once inside the van, but before she can be blindfolded, petitioner was able to see the face of one of the armed men sitting beside her.[17] The van then sped away.



After about an hour of traveling, the van stopped.[18] Petitioner, Carabeo and Jandoc were ordered to alight.[19] After she was informed that she is being detained for being a member of the Communist Party of the Philippines-New People’s Army (CPP-NPA), petitioner was separated from her companions and was escorted to a room that she believed was a jail cell from the sound of its metal doors.[20] From there, she could hear the sounds of gunfire, the noise of planes taking off and landing and some construction bustle.[21] She inferred that she was taken to the military camp of Fort Magsaysay in Laur, Nueva Ecija.[22]



What followed was five (5) straight days of interrogation coupled with torture.[23] The thrust of the interrogations was to convince petitioner to abandon her communist beliefs in favor of returning to “the fold.”[24] The torture, on the other hand, consisted of taunting, choking, boxing and suffocating the petitioner.[25]



Throughout the entirety of her ordeal, petitioner was made to suffer in blindfolds even in her sleep.[26] Petitioner was only relieved of her blindfolds when she was allowed to take a bath, during which she became acquainted with a woman named “Rose” who bathed her.[27] There were also a few times when she cheated her blindfold and was able to peek at her surroundings.[28]



Despite being deprived of sight, however, petitioner was still able to learn the names of three of her interrogators who introduced themselves to her as “Dex,” “James” and “RC.”[29] “RC” even told petitioner that those who tortured her came from the “Special Operations Group,” and that she was abducted because her name is included in the “Order of Battle.”[30]



On 25 May 2009, petitioner was finally released and returned to her uncle’s house in Quezon City.[31] Before being released, however, the abductors gave petitioner a cellular phone with a SIM[32] card, a slip of paper containing an e-mail address with password,[33] a plastic bag containing biscuits and books,[34] the handcuffs used on her, a blouse and a pair of shoes.[35] Petitioner was also sternly warned not to report the incident to the group Karapatan or something untoward will happen to her and her family.[36]



Sometime after her release, petitioner continued to receive calls from RC via the cellular phone given to her.[37] Out of apprehension that she was being monitored and also fearing for the safety of her family, petitioner threw away the cellular phone with a SIM card.



Seeking sanctuary against the threat of future harm as well as the suppression of any existing government files or records linking her to the communist movement, petitioner filed a Petition for the Writs of Amparo and Habeas Data before this Court on 1 June 2009.[38] Petitioner impleaded public officials occupying the uppermost echelons of the military and police hierarchy as respondents, on the belief that it was government agents who were behind her abduction and torture. Petitioner likewise included in her suit “Rose,” “Dex” and “RC.”[39]



The Amparo and Habeas Data petition prays that: (1) respondents be enjoined from harming or even approaching petitioner and her family; (2) an order be issued allowing the inspection of detention areas in the 7th Infantry Division, Fort Magsaysay, Laur, Nueva Ecija; (3) respondents be ordered to produce documents relating to any report on the case of petitioner including, but not limited to, intelligence report and operation reports of the 7th Infantry Division, the Special Operations Group of the Armed Forces of the Philippines (AFP) and its subsidiaries or branch/es prior to, during and subsequent to 19 May 2009; (4) respondents be ordered to expunge from the records of the respondents any document pertinent or connected to Melissa C. Roxas, Melissa Roxas or any name which sounds the same; and (5) respondents be ordered to return to petitioner her journal, digital camera with memory card, laptop computer, external hard disk, IPOD, wristwatch, sphygmomanometer, stethoscope, medicines and her P15,000.00 cash.[40]



In a Resolution dated 9 June 2009, this Court issued the desired writs and referred the case to the Court of Appeals for hearing, reception of evidence and appropriate action.[41] The Resolution also directed the respondents to file their verified written return.[42]



On 18 June 2009, the Office of the Solicitor General (OSG), filed a Return of the Writs[43] on behalf of the public officials impleaded as respondents.



We now turn to the defenses interposed by the public respondents.



The public respondents label petitioner’s alleged abduction and torture as “stage managed.”[44] In support of their accusation, the public respondents principally rely on the statement of Mr. Paolo, as contained in the Special Report[45] of the La Paz Police Station. In the Special Report, Mr. Paolo disclosed that, prior to the purported abduction, petitioner and her companions instructed him and his two sons to avoid leaving the house.[46] From this statement, the public respondents drew the distinct possibility that, except for those already inside Mr. Paolo’s house, nobody else has any way of knowing where petitioner and her companions were at the time they were supposedly abducted.[47] This can only mean, the public respondents concluded, that if ever there was any “abduction” it must necessarily have been planned by, or done with the consent of, the petitioner and her companions themselves.[48]



Public respondents also cited the Medical Certificate[49] of the petitioner, as actually belying her claims that she was subjected to serious torture for five (5) days. The public respondents noted that while the petitioner alleges that she was choked and boxed by her abductors—inflictions that could have easily produced remarkable bruises—her Medical Certificate only shows abrasions in her wrists and knee caps.[50]



For the public respondents, the above anomalies put in question the very authenticity of petitioner’s alleged abduction and torture, more so any military or police involvement therein. Hence, public respondents conclude that the claims of abduction and torture was no more than a charade fabricated by the petitioner to put the government in bad light, and at the same time, bring great media mileage to her and the group that she represents.[51]



Nevertheless, even assuming the abduction and torture to be genuine, the public respondents insist on the dismissal of the Amparo and Habeas Data petition based on the following grounds: (a) as against respondent President Gloria Macapagal-Arroyo, in particular, because of her immunity from suit,[52] and (b) as against all of the public respondents, in general, in view of the absence of any specific allegation in the petition that they had participated in, or at least authorized, the commission of such atrocities.[53]



Finally, the public respondents posit that they had not been remiss in their duty to ascertain the truth behind the allegations of the petitioner.[54] In both the police and military arms of the government machinery, inquiries were set-up in the following manner:



Police Action



Police authorities first learned of the purported abduction around 4:30 o’clock in the afternoon of 19 May 2009, when Barangay Captain Michael M. Manuel came to the La Paz Municipal Police Station to report the presence of heavily armed men somewhere in Barangay Kapanikian.[55] Acting on the report, the police station launched an initial investigation.[56]



The initial investigation revolved around the statement of Mr. Paolo, who informed the investigators of an abduction incident involving three (3) persons—later identified as petitioner Melissa Roxas, Juanito Carabeo and John Edward Jandoc—who were all staying in his house.[57] Mr. Paolo disclosed that the abduction occurred around 1:30 o’clock in the afternoon, and was perpetrated by about eight (8) heavily armed men who forced their way inside his house.[58] Other witnesses to the abduction also confirmed that the armed men used a dark blue van with an unknown plate number and two (2) Honda XRM motorcycles with no plate numbers.[59]



At 5:00 o’clock in the afternoon of 19 May 2009, the investigators sent a Flash Message to the different police stations surrounding La Paz, Tarlac, in an effort to track and locate the van and motorcycles of the suspects. Unfortunately, the effort yielded negative results.[60]



On 20 May 2009, the results of the initial investigation were included in a Special Report[61] that was transmitted to the Tarlac Police Provincial Office, headed by public respondent P/S Supt. Rudy Lacadin (Supt. Lacadin). Public respondent Supt. Lacadin, in turn, informed the Regional Police Office of Region 3 about the abduction.[62] Follow-up investigations were, at the same time, pursued.[63]



On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz, as Director of the Regional Police Office for Region 3, caused the creation of Special Investigation Task Group—CAROJAN (Task Group CAROJAN) to conduct an in-depth investigation on the abduction of the petitioner, Carabeo and Jandoc.[64]



Task Group CAROJAN started its inquiry by making a series of background examinations on the victims of the purported abduction, in order to reveal the motive behind the abduction and, ultimately, the identity of the perpetrators.[65] Task Group CAROJAN also maintained liaisons with Karapatan and the Alliance for Advancement of People’s Rights—organizations trusted by petitioner—in the hopes of obtaining the latter’s participation in the ongoing investigations.[66] Unfortunately, the letters sent by the investigators requesting for the availability of the petitioner for inquiries were left unheeded.[67]



The progress of the investigations conducted by Task Group CAROJAN had been detailed in the reports[68] that it submitted to public respondent General Jesus Ame Verzosa, the Chief of the Philippine National Police. However, as of their latest report dated 29 June 2009, Task Group CAROJAN is still unable to make a definitive finding as to the true identity and affiliation of the abductors—a fact that task group CAROJAN attributes to the refusal of the petitioner, or any of her fellow victims, to cooperate in their investigative efforts.[69]



Military Action



Public respondent Gilbert Teodoro, the Secretary of National Defense, first came to know about the alleged abduction and torture of the petitioner upon receipt of the Resolution of this Court directing him and the other respondents to file their return.[70] Immediately thereafter, he issued a Memorandum Directive[71] addressed to the Chief of Staff of the AFP, ordering the latter, among others, to conduct an inquiry to determine the validity of the accusation of military involvement in the abduction.[72]



Acting pursuant to the Memorandum Directive, public respondent General Victor S. Ibrado, the AFP Chief of Staff, sent an AFP Radio Message[73] addressed to public respondent Lieutenant General Delfin N. Bangit (Lt. Gen. Bangit), the Commanding General of the Army, relaying the order to cause an investigation on the abduction of the petitioner.[74]



For his part, and taking cue from the allegations in the amparo petition, public respondent Lt. Gen. Bangit instructed public respondent Major General Ralph A. Villanueva (Maj. Gen. Villanueva), the Commander of the 7th Infantry Division of the Army based in Fort Magsaysay, to set in motion an investigation regarding the possible involvement of any personnel assigned at the camp in the purported abduction of the petitioner.[75] In turn, public respondent Maj. Gen. Villanueva tapped the Office of the Provost Marshal (OPV) of the 7th Infantry Division, to conduct the investigation.[76]



On 23 June 2009, the OPV of the 7th Infantry Division released an Investigation Report[77] detailing the results of its inquiry. In substance, the report described petitioner’s allegations as “opinionated” and thereby cleared the military from any involvement in her alleged abduction and torture.[78]



The Decision of the Court of Appeals



In its Decision,[79] the Court of Appeals gave due weight and consideration to the petitioner’s version that she was indeed abducted and then subjected to torture for five (5) straight days. The appellate court noted the sincerity and resolve by which the petitioner affirmed the contents of her affidavits in open court, and was thereby convinced that the latter was telling the truth.[80]



On the other hand, the Court of Appeals disregarded the argument of the public respondents that the abduction of the petitioner was “stage managed,” as it is merely based on an unfounded speculation that only the latter and her companions knew where they were staying at the time they were forcibly taken.[81] The Court of Appeals further stressed that the Medical Certificate of the petitioner can only affirm the existence of a true abduction, as its findings are reflective of the very injuries the latter claims to have sustained during her harrowing ordeal, particularly when she was handcuffed and then dragged by her abductors onto their van.[82]



The Court of Appeals also recognized the existence of an ongoing threat against the security of the petitioner, as manifested in the attempts of “RC” to contact and monitor her, even after she was released.[83] This threat, according to the Court of Appeals, is all the more compounded by the failure of the police authorities to identify the material perpetrators who are still at large.[84] Thus, the appellate court extended to the petitioner the privilege of the writ of amparo by directing the public respondents to afford protection to the former, as well as continuing, under the norm of extraordinary diligence, their existing investigations involving the abduction.[85]



The Court of Appeals likewise observed a transgression of the right to informational privacy of the petitioner, noting the existence of “records of investigations” that concerns the petitioner as a suspected member of the CPP-NPA.[86] The appellate court derived the existence of such records from a photograph and video file presented in a press conference by party-list representatives Jovito Palparan (Palparan) and Pastor Alcover (Alcover), which allegedly show the petitioner participating in rebel exercises. Representative Alcover also revealed that the photograph and video came from a female CPP-NPA member who wanted out of the organization. According to the Court of Appeals, the proliferation of the photograph and video, as well as any form of media, insinuating that petitioner is part of the CPP-NPA does not only constitute a violation of the right to privacy of the petitioner but also puts further strain on her already volatile security.[87] To this end, the appellate court granted the privilege of the writ of habeas data mandating the public respondents to refrain from distributing to the public any records, in whatever form, relative to petitioner’s alleged ties with the CPP-NPA or pertinently related to her abduction and torture.[88]



The foregoing notwithstanding, however, the Court of Appeals was not convinced that the military or any other person acting under the acquiescence of the government, were responsible for the abduction and torture of the petitioner.[89] The appellate court stressed that, judging by her own statements, the petitioner merely “believed” that the military was behind her abduction.[90] Thus, the Court of Appeals absolved the public respondents from any complicity in the abduction and torture of petitioner.[91] The petition was likewise dismissed as against public respondent President Gloria Macapagal-Arroyo, in view of her immunity from suit.[92]



Accordingly, the petitioner’s prayers for the return of her personal belongings were denied.[93] Petitioner’s prayers for an inspection order and production order also met the same fate.[94]



Hence, this appeal by the petitioner.



AMPARO



A.



Petitioner first contends that the Court of Appeals erred in absolving the public respondents from any responsibility in her abduction and torture.[95] Corollary to this, petitioner also finds fault on the part of Court of Appeals in denying her prayer for the return of her personal belongings.[96]



Petitioner insists that the manner by which her abduction and torture was carried out, as well as the sounds of construction, gun-fire and airplanes that she heard while in detention, as these were detailed in her two affidavits and affirmed by her in open court, are already sufficient evidence to prove government involvement.[97]



Proceeding from such assumption, petitioner invokes the doctrine of command responsibility to implicate the high-ranking civilian and military authorities she impleaded as respondents in her amparo petition.[98] Thus, petitioner seeks from this Court a pronouncement holding the respondents as complicit in her abduction and torture, as well as liable for the return of her belongings.[99]



Command Responsibility in Amparo Proceedings



It must be stated at the outset that the use by the petitioner of the doctrine of command responsibility as the justification in impleading the public respondents in her amparo petition, is legally inaccurate, if not incorrect. The doctrine of command responsibility is a rule of substantive law that establishes liability and, by this account, cannot be a proper legal basis to implead a party-respondent in an amparo petition.[100]



The case of Rubrico v. Arroyo,[101] which was the first to examine command responsibility in the context of an amparo proceeding, observed that the doctrine is used to pinpoint liability. Rubrico notes that:[102]



The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict."[103] In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility,[104] foreshadowing the present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is "an omission mode of individual criminal liability," whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators[105] (as opposed to crimes he ordered). (Emphasis in the orginal, underscoring supplied)



Since the application of command responsibility presupposes an imputation of individual liability, it is more aptly invoked in a full-blown criminal or administrative case rather than in a summary amparo proceeding. The obvious reason lies in the nature of the writ itself:



The writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate remedial measures and directives that may be crafted by the court, in order to address specific violations or threats of violation of the constitutional rights to life, liberty or security.[106] While the principal objective of its proceedings is the initial determination of whether an enforced disappearance, extralegal killing or threats thereof had transpired—the writ does not, by so doing, fix liability for such disappearance, killing or threats, whether that may be criminal, civil or administrative under the applicable substantive law.[107] The rationale underpinning this peculiar nature of an amparo writ has been, in turn, clearly set forth in the landmark case of The Secretary of National Defense v. Manalo:[108]



x x x The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.[109](Emphasis supplied)



It must be clarified, however, that the inapplicability of the doctrine of command responsibility in an amparo proceeding does not, by any measure, preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. In which case, commanders may be impleaded—not actually on the basis of command responsibility—but rather on the ground of their responsibility, or at least accountability. In Razon v. Tagitis,[110] the distinct, but interrelated concepts of responsibility and accountability were given special and unique significations in relation to an amparo proceeding, to wit:



x x x Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.



Responsibility of Public Respondents



At any rate, it is clear from the records of the case that the intent of the petitioner in impleading the public respondents is to ascribe some form of responsibility on their part, based on her assumption that they, in one way or the other, had condoned her abduction and torture.[111]



To establish such assumption, petitioner attempted to show that it was government agents who were behind her ordeal. Thus, the petitioner calls attention to the circumstances surrounding her abduction and torture—i.e., the forcible taking in broad daylight; use of vehicles with no license plates; utilization of blindfolds; conducting interrogations to elicit communist inclinations; and the infliction of physical abuse—which, according to her, is consistent with the way enforced disappearances are being practiced by the military or other state forces.[112]



Moreover, petitioner also claims that she was held inside the military camp Fort Magsaysay—a conclusion that she was able to infer from the travel time required to reach the place where she was actually detained, and also from the sounds of construction, gun-fire and airplanes she heard while thereat.[113]

We are not impressed. The totality of the evidence presented by the petitioner does not inspire reasonable conclusion that her abductors were military or police personnel and that she was detained at Fort Magsaysay.



First. The similarity between the circumstances attending a particular case of abduction with those surrounding previous instances of enforced disappearances does not, necessarily, carry sufficient weight to prove that the government orchestrated such abduction. We opine that insofar as the present case is concerned, the perceived similarity cannot stand as substantial evidence of the involvement of the government.



In amparo proceedings, the weight that may be accorded to parallel circumstances as evidence of military involvement depends largely on the availability or non-availability of other pieces of evidence that has the potential of directly proving the identity and affiliation of the perpetrators. Direct evidence of identity, when obtainable, must be preferred over mere circumstantial evidence based on patterns and similarity, because the former indubitably offers greater certainty as to the true identity and affiliation of the perpetrators. An amparo court cannot simply leave to remote and hazy inference what it could otherwise clearly and directly ascertain.



In the case at bench, petitioner was, in fact, able to include in her Offer of Exhibits,[114] the cartographic sketches[115] of several of her abductors whose faces she managed to see. To the mind of this Court, these cartographic sketches have the undeniable potential of giving the greatest certainty as to the true identity and affiliation of petitioner’s abductors. Unfortunately for the petitioner, this potential has not been realized in view of the fact that the faces described in such sketches remain unidentified, much less have been shown to be that of any military or police personnel. Bluntly stated, the abductors were not proven to be part of either the military or the police chain of command.



Second. The claim of the petitioner that she was taken to Fort Magsaysay was not adequately established by her mere estimate of the time it took to reach the place where she was detained and by the sounds that she heard while thereat. Like the Court of Appeals, We are not inclined to take the estimate and observations of the petitioner as accurate on its face—not only because they were made mostly while she was in blindfolds, but also in view of the fact that she was a mere sojourner in the Philippines, whose familiarity with Fort Magsaysay and the travel time required to reach it is in itself doubtful.[116] With nothing else but obscure observations to support it, petitioner’s claim that she was taken to Fort Magsaysay remains a mere speculation.



In sum, the petitioner was not able to establish to a concrete point that her abductors were actually affiliated, whether formally or informally, with the military or the police organizations. Neither does the evidence at hand prove that petitioner was indeed taken to the military camp Fort Magsaysay to the exclusion of other places. These evidentiary gaps, in turn, make it virtually impossible to determine whether the abduction and torture of the petitioner was in fact committed with the acquiescence of the public respondents. On account of this insufficiency in evidence, a pronouncement of responsibility on the part of the public respondents, therefore, cannot be made.



Prayer for the Return of Personal Belongings



This brings Us to the prayer of the petitioner for the return of her personal belongings.



In its decision, the Court of Appeals denied the above prayer of the petitioner by reason of the failure of the latter to prove that the public respondents were involved in her abduction and torture.[117] We agree with the conclusion of the Court of Appeals, but not entirely with the reason used to support it. To the mind of this Court, the prayer of the petitioner for the return of her belongings is doomed to fail regardless of whether there is sufficient evidence to hold public respondents responsible for the abduction of the petitioner.



In the first place, an order directing the public respondents to return the personal belongings of the petitioner is already equivalent to a conclusive pronouncement of liability. The order itself is a substantial relief that can only be granted once the liability of the public respondents has been fixed in a full and exhaustive proceeding. As already discussed above, matters of liability are not determinable in a mere summary amparo proceeding.[118]



But perhaps the more fundamental reason in denying the prayer of the petitioner, lies with the fact that a person’s right to be restituted of his property is already subsumed under the general rubric of property rights—which are no longer protected by the writ of amparo.[119] Section 1 of the Amparo Rule,[120] which defines the scope and extent of the writ, clearly excludes the protection of property rights.



B.



The next error raised by the petitioner is the denial by the Court of Appeals of her prayer for an inspection of the detention areas of Fort Magsaysay.[121]



Considering the dearth of evidence concretely pointing to any military involvement in petitioner’s ordeal, this Court finds no error on the part of the Court of Appeals in denying an inspection of the military camp at Fort Magsaysay. We agree with the appellate court that a contrary stance would be equivalent to sanctioning a “fishing expedition,” which was never intended by the Amparo Rule in providing for the interim relief of inspection order.[122] Contrary to the explicit position[123] espoused by the petitioner, the Amparo Rule does not allow a “fishing expedition” for evidence.



An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in order to aid the court before making a decision.[124] A basic requirement before an amparo court may grant an inspection order is that the place to be inspected is reasonably determinable from the allegations of the party seeking the order. While the Amparo Rule does not require that the place to be inspected be identified with clarity and precision, it is, nevertheless, a minimum for the issuance of an inspection order that the supporting allegations of a party be sufficient in itself, so as to make a prima facie case. This, as was shown above, petitioner failed to do.



Since the very estimates and observations of the petitioner are not strong enough to make out a prima facie case that she was detained in Fort Magsaysay, an inspection of the military camp cannot be ordered. An inspection order cannot issue on the basis of allegations that are, in themselves, unreliable and doubtful.



HABEAS DATA



As earlier intimated, the Court of Appeals granted to the petitioner the privilege of the writ of habeas data, by enjoining the public respondents from “distributing or causing the distribution to the public any records in whatever form, reports, documents or similar papers” relative to the petitioner’s “alleged ties with the CPP-NPA or pertinently related to her abduction and torture.” Though not raised as an issue in this appeal, this Court is constrained to pass upon and review this particular ruling of the Court of Appeals in order to rectify, what appears to Us, an error infecting the grant.



For the proper appreciation of the rationale used by the Court of Appeals in granting the privilege of the writ of habeas data, We quote hereunder the relevant portion[125] of its decision:



Under these premises, Petitioner prayed that all the records, intelligence reports and reports on the investigations conducted on Melissa C. Roxas or Melissa Roxas be produced and eventually expunged from the records. Petitioner claimed to be included in the Government’s Order of Battle under Oplan Bantay Laya which listed political opponents against whom false criminal charges were filed based on made up and perjured information.



Pending resolution of this petition and before Petitioner could testify before Us, Ex-army general Jovito Palaparan, Bantay party-list, and Pastor Alcover of the Alliance for Nationalism and Democracy party-list held a press conference where they revealed that they received an information from a female NPA rebel who wanted out of the organization, that Petitioner was a communist rebel. Alcover claimed that said information reached them thru a letter with photo of Petitioner holding firearms at an NPA training camp and a video CD of the training exercises.



Clearly, and notwithstanding Petitioner’s denial that she was the person in said video, there were records of other investigations on Melissa C. Roxas or Melissa Roxas which violate her right to privacy. Without a doubt, reports of such nature have reasonable connections, one way or another, to petitioner’s abduction where she claimed she had been subjected to cruelties and dehumanizing acts which nearly caused her life precisely due to allegation of her alleged membership in the CPP-NPA. And if said report or similar reports are to be continuously made available to the public, Petitioner’s security and privacy will certainly be in danger of being violated or transgressed by persons who have strong sentiments or aversion against members of this group. The unregulated dissemination of said unverified video CD or reports of Petitioner’s alleged ties with the CPP-NPA indiscriminately made available for public consumption without evidence of its authenticity or veracity certainly violates Petitioner’s right to privacy which must be protected by this Court. We, thus, deem it necessary to grant Petitioner the privilege of the Writ of Habeas Data. (Emphasis supplied).



The writ of habeas data was conceptualized as a judicial remedy enforcing the right to privacy, most especially the right to informational privacy of individuals.[126] The writ operates to protect a person’s right to control information regarding himself, particularly in the instances where such information is being collected through unlawful means in order to achieve unlawful ends.



Needless to state, an indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim.[127] This, in the case at bench, the petitioner failed to do.



The main problem behind the ruling of the Court of Appeals is that there is actually no evidence on record that shows that any of the public respondents had violated or threatened the right to privacy of the petitioner. The act ascribed by the Court of Appeals to the public respondents that would have violated or threatened the right to privacy of the petitioner, i.e., keeping records of investigations and other reports about the petitioner’s ties with the CPP-NPA, was not adequately proven—considering that the origin of such records were virtually unexplained and its existence, clearly, only inferred by the appellate court from the video and photograph released by Representatives Palparan and Alcover in their press conference. No evidence on record even shows that any of the public respondents had access to such video or photograph.



In view of the above considerations, the directive by the Court of Appeals enjoining the public respondents from “distributing or causing the distribution to the public any records in whatever form, reports, documents or similar papers” relative to the petitioner’s “alleged ties with the CPP-NPA,” appears to be devoid of any legal basis. The public respondents cannot be ordered to refrain from distributing something that, in the first place, it was not proven to have.



Verily, until such time that any of the public respondents were found to be actually responsible for the abduction and torture of the petitioner, any inference regarding the existence of reports being kept in violation of the petitioner’s right to privacy becomes farfetched, and premature.



For these reasons, this Court must, at least in the meantime, strike down the grant of the privilege of the writ of habeas data.



DISPOSITION OF THE CASE



Our review of the evidence of the petitioner, while telling of its innate insufficiency to impute any form of responsibility on the part of the public respondents, revealed two important things that can guide Us to a proper disposition of this case. One, that further investigation with the use of extraordinary diligence must be made in order to identify the perpetrators behind the abduction and torture of the petitioner; and two, that the Commission on Human Rights (CHR), pursuant to its Constitutional mandate to “investigate all forms of human rights violations involving civil and political rights and to provide appropriate legal measures for the protection of human rights,”[128] must be tapped in order to fill certain investigative and remedial voids.



Further Investigation Must Be Undertaken



Ironic as it seems, but part and parcel of the reason why the petitioner was not able to adduce substantial evidence proving her allegations of government complicity in her abduction and torture, may be attributed to the incomplete and one-sided investigations conducted by the government itself. This “awkward” situation, wherein the very persons alleged to be involved in an enforced disappearance or extralegal killing are, at the same time, the very ones tasked by law to investigate the matter, is a unique characteristic of these proceedings and is the main source of the “evidentiary difficulties” faced by any petitioner in any amparo case.[129]



Cognizant of this situation, however, the Amparo Rule placed a potent safeguard—requiring the “respondent who is a public official or employee” to prove that no less than “extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.”[130] Thus, unless and until any of the public respondents is able to show to the satisfaction of the amparo court that extraordinary diligence has been observed in their investigations, they cannot shed the allegations of responsibility despite the prevailing scarcity of evidence to that effect.



With this in mind, We note that extraordinary diligence, as required by the Amparo Rule, was not fully observed in the conduct of the police and military investigations in the case at bar.



A perusal of the investigation reports submitted by Task Group CAROJAN shows modest effort on the part of the police investigators to identify the perpetrators of the abduction. To be sure, said reports are replete with background checks on the victims of the abduction, but are, at the same time, comparatively silent as to other concrete steps the investigators have been taking to ascertain the authors of the crime. Although conducting a background investigation on the victims is a logical first step in exposing the motive behind the abduction—its necessity is clearly outweighed by the need to identify the perpetrators, especially in light of the fact that the petitioner, who was no longer in captivity, already came up with allegations about the motive of her captors.



Instead, Task Group CAROJAN placed the fate of their investigations solely on the cooperation or non-cooperation of the petitioner—who, they claim, was less than enthusiastic in participating in their investigative efforts.[131] While it may be conceded that the participation of the petitioner would have facilitated the progress of Task Group CAROJAN’s investigation, this Court believes that the former’s reticence to cooperate is hardly an excuse for Task Group CAROJAN not to explore other means or avenues from which they could obtain relevant leads.[132] Indeed, while the allegations of government complicity by the petitioner cannot, by themselves, hold up as adequate evidence before a court of law—they are, nonetheless, a vital source of valuable investigative leads that must be pursued and verified, if only to comply with the high standard of diligence required by the Amparo Rule in the conduct of investigations.



Assuming the non-cooperation of the petitioner, Task Group CAROJAN’s reports still failed to explain why it never considered seeking the assistance of Mr. Jesus Paolo—who, along with the victims, is a central witness to the abduction. The reports of Task Group CAROJAN is silent in any attempt to obtain from Mr. Paolo, a cartographic sketch of the abductors or, at the very least, of the one who, by petitioner’s account, was not wearing any mask.



The recollection of Mr. Paolo could have served as a comparative material to the sketches included in petitioner’s offer of exhibits that, it may be pointed out, were prepared under the direction of, and first submitted to, the CHR pursuant to the latter’s independent investigation on the abduction and torture of the petitioner.[133] But as mentioned earlier, the CHR sketches remain to be unidentified as of this date.



In light of these considerations, We agree with the Court of Appeals that further investigation under the norm of extraordinary diligence should be undertaken. This Court simply cannot write finis to this case, on the basis of an incomplete investigation conducted by the police and the military. In a very real sense, the right to security of the petitioner is continuously put in jeopardy because of the deficient investigation that directly contributes to the delay in bringing the real perpetrators before the bar of justice.



To add teeth to the appellate court’s directive, however, We find it fitting, nay, necessary to shift the primary task of conducting further investigations on the abduction and torture of the petitioner upon the CHR.[134] We note that the CHR, unlike the police or the military, seems to enjoy the trust and confidence of the petitioner—as evidenced by her attendance and participation in the hearings already conducted by the commission.[135] Certainly, it would be reasonable to assume from such cooperation that the investigations of the CHR have advanced, or at the very least, bears the most promise of advancing farther, in terms of locating the perpetrators of the abduction, and is thus, vital for a final resolution of this petition. From this perspective, We also deem it just and appropriate to relegate the task of affording interim protection to the petitioner, also to the CHR.

Hence, We modify the directive of the Court of the Appeals for further investigation, as follows—



1.) Appointing the CHR as the lead agency tasked with conducting further investigation regarding the abduction and torture of the petitioner. Accordingly, the CHR shall, under the norm of extraordinary diligence, take or continue to take the necessary steps: (a) to identify the persons described in the cartographic sketches submitted by the petitioner, as well as their whereabouts; and (b) to pursue any other leads relevant to petitioner’s abduction and torture.



2.) Directing the incumbent Chief of the Philippine National Police (PNP), or his successor, and the incumbent Chief of Staff of the AFP, or his successor, to extend assistance to the ongoing investigation of the CHR, including but not limited to furnishing the latter a copy of its personnel records circa the time of the petitioner’s abduction and torture, subject to reasonable regulations consistent with the Constitution and existing laws.



3.) Further directing the incumbent Chief of the PNP, or his successor, to furnish to this Court, the Court of Appeals, and the petitioner or her representative, a copy of the reports of its investigations and their recommendations, other than those that are already part of the records of this case, within ninety (90) days from receipt of this decision.



4.) Further directing the CHR to (a) furnish to the Court of Appeals within ninety (90) days from receipt of this decision, a copy of the reports on its investigation and its corresponding recommendations; and to (b) provide or continue to provide protection to the petitioner during her stay or visit to the Philippines, until such time as may hereinafter be determined by this Court.



Accordingly, this case must be referred back to the Court of Appeals, for the purposes of monitoring compliance with the above directives and determining whether, in light of any recent reports or recommendations, there would already be sufficient evidence to hold any of the public respondents responsible or, at least, accountable. After making such determination, the Court of Appeals shall submit its own report with recommendation to this Court for final action. The Court of Appeals will continue to have jurisdiction over this case in order to accomplish its tasks under this decision.



WHEREFORE, the instant petition is PARTIALLY MERITORIOUS. We hereby render a decision:



1.) AFFIRMING the denial of the petitioner’s prayer for the return of her personal belongings;



2.) AFFIRMING the denial of the petitioner’s prayer for an inspection of the detention areas of Fort Magsaysay.



3.) REVERSING the grant of the privilege of habeas data, without prejudice, however, to any modification that this Court may make on the basis of the investigation reports and recommendations submitted to it under this decision.



4.) MODIFYING the directive that further investigation must be undertaken, as follows—



a. APPOINTING the Commission on Human Rights as the lead agency tasked with conducting further investigation regarding the abduction and torture of the petitioner. Accordingly, the Commission on Human Rights shall, under the norm of extraordinary diligence, take or continue to take the necessary steps: (a) to identify the persons described in the cartographic sketches submitted by the petitioner, as well as their whereabouts; and (b) to pursue any other leads relevant to petitioner’s abduction and torture.



b. DIRECTING the incumbent Chief of the Philippine National Police, or his successor, and the incumbent Chief of Staff of the Armed Forces of the Philippines, or his successor, to extend assistance to the ongoing investigation of the Commission on Human Rights, including but not limited to furnishing the latter a copy of its personnel records circa the time of the petitioner’s abduction and torture, subject to reasonable regulations consistent with the Constitution and existing laws.



c. Further DIRECTING the incumbent Chief of the Philippine National Police, or his successor, to furnish to this Court, the Court of Appeals, and the petitioner or her representative, a copy of the reports of its investigations and their recommendations, other than those that are already part of the records of this case, within ninety (90) days from receipt of this decision.



d. Further DIRECTING the Commission on Human Rights (a) to furnish to the Court of Appeals within ninety (90) days from receipt of this decision, a copy of the reports on its investigation and its corresponding recommendations; and (b) to provide or continue to provide protection to the petitioner during her stay or visit to the Philippines, until such time as may hereinafter be determined by this Court.



5.) REFERRING BACK the instant case to the Court of Appeals for the following purposes:



a. To MONITOR the investigations and actions taken by the PNP, AFP, and the CHR;



b. To DETERMINE whether, in light of the reports and recommendations of the CHR, the abduction and torture of the petitioner was committed by persons acting under any of the public respondents; and on the basis of this determination—



c. To SUBMIT to this Court within ten (10) days from receipt of the report and recommendation of the Commission on Human Rights—its own report, which shall include a recommendation either for the DISMISSAL of the petition as against the public respondents who were found not responsible and/or accountable, or for the APPROPRIATE REMEDIAL MEASURES, AS MAY BE ALLOWED BY THE AMPARO AND HABEAS DATA RULES, TO BE UNDERTAKEN as against those found responsible and/or accountable.



Accordingly, the public respondents shall remain personally impleaded in this petition to answer for any responsibilities and/or accountabilities they may have incurred during their incumbencies.



Other findings of the Court of Appeals in its Decision dated 26 August 2009 in CA-G.R. SP No. 00036-WRA that are not contrary to this decision are AFFIRMED.



SO ORDERED.








JOSE PORTUGAL PEREZ
Associate Justice
















WE CONCUR:









RENATO C. CORONA

Chief Justice









ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice















PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice













(On Official Leave)

TERESITA J. LEONARDO-DECASTRO ARTURO D. BRION
Associate Justice Associate Justice















DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

















MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice













MARTIN S. VILLARAMA, JR. JOSE CATRAL MENDOZA

Associate Justice Associate Justice













MARIA LOURDES P.A. SERENO

Associate Justice











C E R T I F I C A T I O N




Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.









RENATO C. CORONA

Chief Justice



--------------------------------------------------------------------------------

* On Official Leave.

[1] Under Rule 45 of the Rules of Court, in relation with Section 19 of The Rule on the Writ of Amparo (A.M. No. 07-9-12-SC) and Section 19 of the Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC).

[2] Penned by Associate Justice Noel G. Tijam with Associate Justices Arturo G. Tayag and Normandie B. Pizarro, concurring. Rollo, pp 50-82.

[3] Id. at 81-82.

[4] Id. at 53.

[5] Id.

[6] A sister organization of BAYAN-USA.

[7] Affidavit of Petitioner. CA rollo, p.11.

[8] A digital multi-media player combined with a hard drive.

[9] Supplemental Affidavit of Petitioner. CA rollo, p. 194.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 12.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at 54.

[23] Id. at 12-15.

[24] Id.

[25] Id.

[26] Id. at 12.

[27] Id. at 12-13.

[28] Supplemental Affidavit. Id. at 194-196.

[29] Id. at 14-15 and 195.

[30] Id. at 15.

[31] Id. at 15-16. Per investigation of the police, Juanito Carabeo was released by the abductors on 24 May 2009 along the highway of Barangay Santa Cruz, Lubao, Pampanga. His exact wherabouts are, however, presently unknown. According to the police, Carabeo has 7 outstanding warrants of arrest. As of the time of this decision, no news relative to the release and/or whereabouts of John Edward Jandoc is obtainable.

[32] Meaning, subscriber Identity Module.

[33] The email address is “riveradong@yahoo.com,” with the password “dantes2009.” CA rollo, at 196.

[34] The book was “Love in the Times of Cholera” by Gabriel Garcia Marquez, and a copy of a Bible of the King James Version. Id. at 195.

[35] Id. at 15.

[36] Id.

[37] Id.

[38] Id. at 2-18. Shortly after filing the petition, petitioner went to the United States to recuperate from her experience. She came back to the Philippines on 30 July 2009 to testify on the affidavits attached to her petition before the Court of Appeals, but returned immediately to the United States.

[39] The interrogator identified only by the name of “James” was not similarly impleaded as a co-respondent.

[40] CA rollo, pp. 7-8.

[41] Supreme Court En Banc Resolution, id. at 19-21.

[42] Id.

[43] No return was filed by or for the unknown respondents “Dex,” “Rose” and “RC.” Id. at 35-98.

[44] Id. at 56.

[45] Id. at 18 and 90.

[46] Id.

[47] Id. at 58.

[48] Id. at 59.

[49] Id. at 17.

[50] Id. at 60-61.

[51] Id. at 60.

[52] Id. at 42-43

[53] Id. at 43-55.

[54] Id.

[55] Id. at 18 and 90.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id. at 113

[61] Id. at 18.

[62] Affidavit of PC/Supt. Leon Nilo A. Dela Cruz. Id. at 83.

[63] Id. at 18-90.

[64] Initial Report of Special Investigative Task Group CAROJAN, id. at 112-114.

[65] Id. at 113-114.

[66] See Letters sent by PC/Supt. Gil C. Meneses, head of Special Investigative Task Group CAROJAN, to Sister Cecile Ruiz of Karapatan and the Alliance for Advancement of People’s Rights. Id. at 93-94.

[67] Id. at 54.

[68] See Initial Report dated 26 May 2009; First Progress Report dated 27 May 2009; Second Progress Report dated 1 June 2009; Third Progress Report dated 8 June 2009, on the alleged abduction and torture of Melissa Roxas, Juanito Carabeo and John Edward Jandoc, prepared by Task Group CAROJAN, id. at 112-120. See also Investigation Report dated 29 June 2009, id. at 179-185.

[69] Id. at 185.

[70] Counter-Affidavit of Secretary Gilbert Teodoro, id. at 121-123.

[71] Id. at 124.

[72] Id. at 122.

[73] Id. at 77.

[74] Affidavit of General Victor S. Ibrado, id. at 73-74.

[75] Affidavit of Lt. Gen. Delfin N. Bangit, id. at 79-80.

[76] Affidavit of Maj. Gen. Ralph A. Villanueva, id. at 81-82.

[77] Id. at 107-110.

[78] Id. at 110.

[79] Rollo, pp. 50-82.

[80] Id. at 63-64.

[81] Id. at 64.

[82] Id. at 64-65.

[83] Id. at 67.

[84] Id. at 69-71.

[85] Id. at 81-82.

[86] Id. at 80-81.

[87] Id.

[88] Id. at 81-82.

[89] Id. at 71-72.

[90] Id. at 73.

[91] Id. at 71-72.

[92] Id. at 73.

[93] Id. at 81.

[94] Id. at 75-77.

[95] Id. at 2-40 and 7.

[96] Id.

[97] Id. at 15. See also CA rollo, p. 5.

[98] Id. at 17.

[99] Id. at 38.

[100] See Separate Opinion of Associate Justice Arturo D. Brion in Rubrico v. Arroyo, G.R. No. 183871, 18 February 2010.

[101] Rubrico v. Arroyo, G.R. No. 183871, 18 February 2010.

[102] Id.

[103] Joaquin G. Bernas, S.J., Command Responsibility, 5 February 2007, http://sc.judiciary.gov.ph/publications/summit/Summit%20Papers/Bernas%20-%20Command%20Responsibility.pdf (visited 2 September 2010).

[104] Eugenia Levine, Command Responsibility, The Mens Rea Requirement, Global Policy Forum, February 2005 (www.globalpolicy.org.). As stated in Kuroda v. Jalandoni, 83 Phil. 171 (1949), the Philippines is not a signatory to the Hague Conventions.

[105] Iavor Rangelov and Jovan Nicic, "Command Responsibility: The Contemporary Law," http://www.hlc-rdc.org/uploads/editor/Command%20Responsibility.pdf (visited 2 August 2009)

[106] Razon, Jr. v. Tagitis, G.R. No. 182498, 3 December 2009, 606 SCRA 598, 602.

[107] Separate Opinion of Associate Justice Arturo D. Brion in Rubrico v. Arroyo, supra note 101.

[108] G.R. No. 180906, 7 October 2008, 568 SCRA 1, 42.

[109] Deliberations of the Committee on the Revision of the Rules of Court, 10 August 2007, 24 August 2007, 31 August 2007 and 20 September 2008.

[110] Supra note 106 at 620-621.

[111] Rollo, pp. 26-27.

[112] Id. at 15.

[113] CA rollo, p. 5.

[114] Id. at 187-193.

[115] Id. See Exhibit “G,’ and its sub-markings.

[116] Rollo, pp. 75-76. As observed by the Court of Appeals:

As respondents correctly argued, considering that Petitioner is an American citizen who claimed to be unfamiliar with Fort Magsaysay or its immediate vicinity, she cannot possibly have any familiarity or actual knowledge of the buildings in or around Fort Magsaysay or the relative distances to and from the same. Petitioner failed to offer a single evidence to definitely prove that she was brought to Fort Magsaysay to the exclusion of other places. It is also unfortunate that her two other companions Messrs. Carabeo and Jandoc, chose not to appear in Court to corroborate the testimony of the Petitioner.

[117] Id. at 81.

[118] Razon, Jr. v. Tagitis, supra note 106 at 688-689.

[119] Tapuz v. Del Rosario, G.R. No. 182484, 17 June 2008, 554 SCRA 768, 784-785.

[120] Section 1 of the Amparo Rule states:

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 extra-legal killings and enforced disappearances or threats thereof. (Emphasis supplied).

[121] Rollo, pp. 27-31.

[122] Id. at 76.

[123] Id. at 28.

[124] Yano v. Sanchez, G.R. No. 186640, 11 February 2010.

[125] Rollo, pp. 80-81.

[126] Annotation to the Rule on the Writ of Habeas Data, A.M. No. 08-1-16-SC, effective 2 February 2008 (pamphlet released by the Supreme Court), p. 23.

[127] Section 1 of the Habeas Data Rule states:

SECTION 1. Habeas Data. - The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (Emphasis supplied).

[128] CONSTITUTION, Article VIII, Section 18.

[129] In Razon, Jr. v. Tagitis, supra note 106 at 684, this Court, thru Associate Justice Arturo D. Brion, recognized the three (3) types of evidentiary difficulties faced by a petitioner in an amparo petition. In explaining the origins of such difficulties, Justice Brion explained:

“These difficulties largely arise because the State itself – the party whose involvement is alleged – investigates enforced disappearances. x x x.”

[130] Section 17 of the Amparo Rule states:

SEC. 17. Burden of Proof and Standard of Diligence Required. – x x x.

x x x x.

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. (Emphasis supplied.)

[131] CA rollo, p. 185.

[132] Placed in a similar situation, the case of Rubrico v. Arroyo, supra note 101, instructs:

The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end. To repeat what the Court said in Manalo, the right to security of persons is a guarantee of the protection of one’s right by the government. And this protection includes conducting effective investigations of extra-legal killings, enforced disappearances, or threats of the same kind. (Emphasis supplied).

[133] TSN, 30 July 2009, pp. 171-173.

[134] We follow suit with the recent case of Burgos v. Arroyo, G.R. No. 183711, 22 June 2010, where this Court, after having found significant lapses in the conduct of the police investigations, resolved to assign the CHR, as its directly commissioned agency, with the task of continuing the investigations on the disappearance of Jonas Burgos.

[135] Rollo, p. 33.