Friday, June 29, 2012

Philippine Supreme Court Selection Process Should Change

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"x x x.

JURIST columnist Edsel Tupaz of Tupaz and Associates argues that the impeachment of the Philippine Supreme Court Justice offers possibilities to create new appointment procedures...

In the aftermath of the May 29impeachment verdict against Renato Corona, the position of the chief justice of the Republic of the Philippines is now vacant. There has been ongoing, heightened scrutiny over what President Benigno Aquino III can and ought to do in the appointment process in the forthcoming weeks. Should he follow settled constitutional practice where a "short list" of "at least" three nominees is submitted by the Judicial and Bar Council (JBC)? Or could new dynamics — provided they are no less constitutionally permissible — be thrown into the mix? There is no question that the stakes today are still high, though not as tense as in the times of impeachment. Everyone seems to be looking to Aquino to somehow set new precedent and overturn the bad ones, "midnight appointees" among them. If you happen to be in a position of power, or at least stay politically relevant, you might conclude, quite easily, that the government should attempt to expand the deliberative space, or "think-through," over an appointment of a new chief justice.

In what follows, I explore the question of how someone holding the reins of the presidency, under our new circumstances, might better approach the appointment process of a chief justice and avoid a second constitutional "system failure." In particular, I hold on to the idea of expanding what I call "deliberative constitutional space" — our constitutional "think-through" — in addressing this (hopefully temporary) constitutional vacuum. I think Dean Jorge Bocobo made a good, leading sally: Article VIII, Section 9 of the Philippine Constitution can be construed as providing a range of action under presidential discretion: from an obligation to an option. The "obligation" here is that the president must fill every vacancy in the Supreme Court according to the shortlist supplied by the JBC. This is something which he must do, and prior constitutional practice certainly affirms it. When the vacancy happens to pertain to the position of chief justice, it is not clear under Section 9 that the "Member" he appoints, whenever there is no chief justice, should always be a chief justice.
Suppose President Aquino chooses to appoint a new associate justice (presumably from outside the Court) instead of a chief justice (presumably from within the Supreme Court). I think he could not be accused of any constitutionally impermissible action. Here lies his option: he could appoint a chief justice, be it someone from outside the Court or from within, or he may choose not to, and, instead, appoint an associate justice. In our hypothetical, contrarian case, this kind of appointment would imply, and imply very clearly, that the policy choice of who should be the new chief justice may lie with someone else. Meanwhile, the various default rules on who becomes the acting chief justice will continue to operate.

Who could that "appointing" authority be? It seems well-settled, at least constitutionally settled, that the power of appointment should really rest with the president. There is no issue that the power to appoint is essentially an executive prerogative. Precisely, we are trying to better think-our-way-through-and-through, in the aftermath of Corona's impeachment, and perhaps by seeking to expand the space for deliberative scrutiny — by securing a unique kind of stakeholder support, perhaps — to make sure that we'll get it right this time from the beginning.

That new stakeholder, according to Bocobo, would be the Supreme Court en banc. The Philippine Supreme Court could venture to appoint its own chief justice from among its extant membership, much in the same way it can appoint its own acting chief justice. Arguably this self-appointing power should be traceable to an enabling statute, but a case could be made in the name of inherent judicial powers regardless of the absence of explicit statutory or even constitutional text.

However, let us not venture that far. Let us suppose that Aquino will go about constitutional appointments according to settled practice (by "settled," I refer to constitutional practices prior to Corona's midnight appointment). In addition, let us add, as a new dynamic, the institutional voice of the Supreme Court as a decisional factor for the president.

How could our constitutional system ever accommodate that? Even if we concede that a few more chefs might actually spice up and not spoil the broth, wouldn't considering the preferences of the entire en banc, even if court-packed by someone else, be an unconstitutional setup? What do we make of the JBC?

It is here where Bocobo draws the line between recommendatory (non-binding) action on one hand, and binding (read: unconstitutional) action on the other. "What I am suggesting," says Bocobo, "still follows our process but asks the President to get the Supreme Court's nonbinding 'recommendation.'" Accepted practice is that the JBC scrutinizes contenders for an imminent judicial appointment and shortlists them for the president to choose among, but the novelty here would be a hybrid three-stage process: First, the JBC submits its shortlist to the president; second, and possibly simultaneously, the Supreme Court in an en banc session issues a resolution indicating its preferences (akin to congressional resolutions, bills excluded); and third, the president, taking into account this tripartite deliberation, then appoints a justice (I think the first two steps can be switched, and I leave the propriety of that topic elsewhere).

If we go by current politics, no matter who Aquino chooses, some people will say that that person will be beholden to him, by that fact of appointment alone, and will do his bidding. In that regard, Aquino will be no different from former-President Gloria Macapagal-Arroyo. However, if President Aquino can give the Supreme Court en banc freedom to recommend their new chief justice, a policy choice which he would then approve, wouldn't this demonstrate a very real commitment to judicial independence while still fulfilling his constitutional obligations under Section 9?

Bocobo's case makes much sense. I do not think this hypothetical dynamic will run into any difficult constitutional hurdles, although it does tread new ground. Aquino would still appoint the next chief justice, but the innovation, to Bocobo, is to insert the Supreme Court into the loop. This is where presidential discretion can demonstrate a sincere commitment to judicial independence beyond name.
I wish to take it a step further by treating the voice of the Supreme Court en banc as one of inter-departmental courtesy, a request made by one co-equal branch to another, whose substance perhaps even qualifies as a political question, akin to the communicative policy dynamics between Congress and the president. Whenever Congress passes a resolution exhorting sundry institutions under the executive branch to do this or do that, the president and his secretaries or bureau chiefs have all the right (nay, the power) to deny that request, but only at great political cost. There will always be a calculus of political capital factored into any constitutional question, even if the issue can strike one as simply "recommendatory." In a similar vein, denying the preferences of an en bancresolution, which is no ordinary resolution since it expresses the 'will' of the court over one whom they deem to be theirprimus inter pares, will likely be equally damaging to another co-equal branch.

Including all sitting members of the Supreme Court may certainly expand our deliberative space and may even up the ante beyond what the JBC, quality-wise, could ever provide. Remember the JBC was originally conceived by the 1986 Constitutional Commission to diffuse, if not eliminate, political horse trading over judicial positions. This is a departure for Senate confirmations under the 1935 Philippine Constitution. If we go by the results of the impeachment, and if we find ourselves in agreement with our senators (more or less), then our pre-appointment review process over who should be our top three picks for Supreme Court posts, including the chief justice, was a system failure.

If our tripartite dynamic can hold, over time confidence can be built up that such recommendations can ripen into an entrenched constitutional practice, if not automatically binding. What is more, Bocobo's setup wouldn't require a constitutional amendment, only a little more creative constitutional interpretation. This may go a long way in pushing the boundaries of a whole society's grassroots understanding of such lofty ideals of fidelity to law, impartiality and independence, even-handed justice, transparency and accountability. If Congress and the executive branch are already in the habit of "recommending" policy choice and policy action between and among them, and perhaps rightly so, why not accord the Supreme Court, in the attempt to choose its own, the same institutional dignity and respect?

Edsel Tupaz is a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.
Suggested citation: Edsel Tupaz, Philippine Supreme Court Selection Process Should Change, JURIST - Sidebar, Jun. 27, 2012,

x x x."

Wednesday, June 27, 2012

Pretrial; duty of judge and clerk to set date

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"x x x.

In Mely Hanson Magpali vs. Judge Moises M. Pardo, RTC, Branch 31, Cabarroquis, Quirino (A.M. No. RTJ-08-2146; 14 November 2008), the Court held:

Respondent Judge fell short of these standards when he failed in his duties to follow elementary law and to keep abreast with prevailing jurisprudence. His claim that the party did not in any manner request that the case be scheduled for hearing as provided under Rule 18, par[.] 1 of the 1997 Rules of Civil Procedure, and that it should be the party who will ask an ex-parte setting/scheduling of the case for its pre-trial is not exactly correct. A.M. No. 03-1-09-SC, 16 August 2004 (Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-trial and Use of Deposition-Discovery Measures) provides that within 5 days from date of filing of reply, the plaintiff must promptly move ex-parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial. The respondent Judge should be conversant therewith.  The case has not been set for pre-trial or at least for a hearing after the filing of the Answer dated 23 July 2007. He must know the laws and apply them properly.  Service in the judiciary involves continuous study and research from beginning to end.[24] (italics, emphases and underscorings supplied)

In the aforementioned case, the Court found the respondent judge guilty of Gross Ignorance of the Law and fined him in the amount of P10,000.00.

        Indeed, the respondent deserves to be sanctioned for gross ignorance of the law. With her inaction on the petition for contempt, she betrayed her unbecoming lack of familiarity with basic procedural rules such as what was involved in the contempt proceedings before her court.  She should have known that while the petitioners have the responsibility to move ex parte to have the case scheduled for preliminary conference, the court (through the branch clerk of court) has the duty to schedule the case for pre-trial in the event that the petitioners fail to file the motion.

x x x."

Unauthorized practice of law is indirect contempt

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"         We likewise agree with the OCA that Karaan was engaged in unauthorized practice of law.

         In Cayetano v. Monsod,[3] the Court ruled that “practice of law” means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to perform acts which are usually performed by members of the legal profession.[4] Generally, to practice law is to render any kind of service which requires the use of legal knowledge or skill.[5] Here, the OCA was able to establish the pattern in Karaan’s unauthorized practice of law. He would require the parties to execute a special power of attorney in his favor to allow him to join them as one of the plaintiffs as their attorney-in-fact. Then, he would file the necessary complaint and other pleadings “acting for and in his own behalf and as attorney-in-fact, agent or representative” of the parties. The fact that Karaan did not indicate in the pleadings that he was a member of the Bar, or any PTR, Attorney’s Roll, or MCLE Compliance Number does not detract from the fact that, by his actions, he was actually engaged in the practice of  law.

         Under Section 3(e), Rule 71 of the 1997 Rules of Civil Procedure, a person “[a]ssuming to be an attorney or an officer of a court, and acting as such without authority,” is liable for indirect contempt of court. Under Section 7 of the same rules, a respondent adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank “may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both.” If a respondent is adjudged guilty of contempt committed against a lower court, he “may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both.”

         Following the ruling of this Court in In re: Joaquin T. Borromeo,[6] the OCA recommended that Karaan be cited for indirect contempt and be sentenced to serve an imprisonment of ten days at the Manila City Jail, and to pay a fine of P1,000 with a warning that a repetition of any of the offenses, or any similar or other offense against the courts, judges or court employees will merit further and more serious sanctions. The OCA further recommended that a memorandum be issued to all courts of the land to notify the judges and court employees of Karaan’s unauthorized practice of law and to report to the OCA any further appearance to be made by Karaan. However, the records would show that Karaan is already 71 years old. In consideration of his old age and his state of health, we deem it proper to remove the penalty of imprisonment as recommended by the OCA and instead increase the recommended fine to P10,000.

         WHEREFORE, we DENY the motion for reconsideration of the Court’s Resolution dated 24 November 2010 dismissing the complaint against Judge Antonio C. Lubao for being judicial in nature. We find REMBERTO C. KARAAN, SR. GUILTY of indirect contempt under  Section 3(e), Rule 71 of the 1997 Rules of Civil Procedure and impose on him a Fine of Ten Thousand Pesos (P10,000).

         Let a copy of this Resolution be furnished all courts of the land for their guidance and information. The courts and court employees are further directed to report to the Office of the Court Administrator any further appearance by Remberto C. Karaan, Sr. before their sala.

         SO ORDERED.

x x x."

JURIST - Paper Chase: Supreme Court partially strikes down Arizona immigration law but upholds controversial section

JURIST - Paper Chase: Supreme Court partially strikes down Arizona immigration law but upholds controversial section

Due to the great number of Filipinos in the USA, I am posting this report.

"x x x.

 Supreme Court partially strikes down Arizona immigration law but upholds controversial section
Rebecca DiLeonardo at 11:46 AM ET

Photo source or description
[JURIST] The US Supreme Court [official website] on Monday ruled 5-3 [opinion, PDF] that three provisions of Arizona's controversial immigration law [SB 1070 materials; JURIST news archive] are preempted by federal law but upheld the most controversial provision. In Arizona v. United States [SCOTUSblog backgrounder], four specific provisions of the law were at issue: Section 2(B), which requires police officers to check the immigration status of anyone whom they arrest and allows police to stop and arrest anyone whom they believe to be an illegal immigrant; Section 3, which makes it a crime for someone even to be in the state without valid immigration papers; Section 5(C), which makes it a crime to apply for or hold a job in Arizona without proper papers; and Section 6, which gives a police officer the power to arrest an individual, without a warrant, whom the officer believes has committed a crime that could cause him or her to be deported, no matter where the crime may have occurred. In his opinion, Justice Anthony Kennedy found that sections 3, 5(C) and 6 intruded in areas reserved for the federal government:
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
In upholding section 2(B), the court found that 2(B) can be construed as a constitutional exercise of state authority, and that "it would be inappropriate to assume 2(B) will be construed in a way that creates a conflict with federal law." The court noted, however, that this decision does not bar other actions against 2(B) and other parts of the law based on different constitutional issues. Kennedy was joined in his opinion by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Justices Antonin Scalia, Clarence Thomas, and Samuel Alito each entered dissenting opinions. In his dissent, Scalia said he would uphold the Arizona law in its entirety. He maintained that the Constitution has given states the authority to regulate immigration just as they have the authority to prosecute individuals for other crimes. He concluded that the Arizona laws do not interfere with federal regulations:
What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government's inherent authority.
Justice Elena Kagan took no part in the decision of this case. The US Court of Appeals for the Ninth Circuit upheld an injunction blocking the four controversial sections last April before the law ever took effect, and Arizona asked the high court to weigh in [JURIST reports]. The court agreed to hear [JURIST report] the case in December.

x x x."

JURIST - Paper Chase: Supreme Court rules mandatory life sentences for juveniles unconstitutional

JURIST - Paper Chase: Supreme Court rules mandatory life sentences for juveniles unconstitutional

This US SC ruling should be read in relation to the Philippines' JUVENILE JUSTICE SYSTEM LAW, which seems to be more pro-youth in spirit than that of the US system.

"x x x.

Supreme Court rules mandatory life sentences for juveniles unconstitutional 
Rebecca DiLeonardo at 12:45 PM ET

Photo source or description
[JURIST] The US Supreme Court on Monday ruled 5-4 [opinion, PDF] in two combined cases that mandatory life sentences for juveniles violate the Eighth Amendment [text] prohibition against cruel and unusual punishment. In Miller v. Alabama and Jackson v. Hobbs[SCOTUSblog backgrounders], the court was asked to consider the life sentences of two 14-year-old boys who, after being convicted of murder, were sentenced to life in prison based on a statutory mandate. The sentencing judge had no authority to give the juveniles a lesser sentence. In her decision, Justice Elena Kagan concluded that the mandatory sentencing scheme was not an appropriate standard for juveniles:
Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stablehousehold and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14 year-olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses—but really ,... a greater sentence than those adults will serve.
The court's decision did not address whether it is generally constitutional to sentence a juvenile to life in prison without a mandatory sentencing scheme. Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito each entered dissenting opinions in the case, concluding that the court should defer to the judgment of the legislators who enacted the statutory mandates.The court heard oral arguments [JURIST report] for the combined cases in March. One of the concerns advanced by the justices regarded the age limit upon which to base a ban against mandatory life sentences. In Miller, Justice Antonin Scalia asked, "What's the distinction between 14 and 15? ... How are we to know where to draw those lines?" Later, Miller's attorney called for 18 to be the minimum age needed to impose a life sentence, and pointed out that most of the jurisdictions that have considered the issue in a legislative context have adopted an age 18 minimum for mandatory life sentences. He offered that those jurisdictions that permitted the imposition of mandatory life-sentences did so through a regime that transferred juveniles to the adult criminal justice system where they are exposed to mandatory life sentences, not because of the express will of the people or their legislators to impose mandatory life sentences on juvenile offenders. He indicated that roughly 80 percent of life sentences imposed on juveniles were a result of mandatory sentencing regimes. The Supreme Courtagreed to hear [JURIST report] the cases in November.

x x x."

Sunday, June 24, 2012

Republic Act 7077 - "Citizen Armed Forces of the Philippines Reservist Act.

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"x x x.

The Supreme Court has insisted that reserve officers of the Armed Forces of the Philippines (AFP) who are called to duty can only serve a maximum of two years.

The court handed down the ruling as it dismissed a petition filed by Col. Jesus G. Cabarrus Jr of the Philippine Army, a reserve officer, asking for the "proper construction" of Republic Act 7077 or the "Citizen Armed Forces of the Philippines Reservist Act."

In 2000, the AFP called Cabarrus – then 60 years – into active service and assigned him as Group Commander of the Public Affairs Service of the AFP Reserve Command.

Five years later, the AFP relieved Cabarrus from his post after he reached the retirement age of 65. The reservist opposed his relief saying under Section 13 (3) of RA 7077, he could still stay in his post if he was "qualified and fit for duty."

Cabarrus elevated his complaint to the Supreme Court, after his letters of protest went unheeded by the AFP, the Department of National Defense and a Quezon City court.

But the Supreme Court, in a ruling written by Associate Justice Roberto Abad, denied Cabarrus' petition for declaratory relief with a request for the proper construction of Sec. 13 (3) of RA 7077.

In its ruling, the high court said the particular section of the law on military reservists does not apply to Cabarrus' case because he was not yet in a retirable age when he was called to duty by the AFP.

"The said provision applies only to retired reserve officers or citizen soldiers who are organized, trained, and maintained as mobilizable ready reserve, subject to call at any time to augment the regular armed force of the Armed Forces of the Philippines (AFP)," the court said.

"The same provision, however, does not apply to reservists who have been called to active duty in the regular armed forces such as Cabarrus who, at 60 years old, was called into active service by the AFP," the court added.

As to how long Cabarrus should have been allowed to stay in active service, the high court cited Section 53 of RA 7077, stating that "reserve officers in the inactive status shall be called to active duty for a period not exceeding two years without extension."

The court also stressed that the only time reservists should be called to active duty and hold commands in the AFP is when they need to "train... in order to improve their professional competence and leadership qualities." — LBG, GMA News

x x x."

Homeless bill of rights

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Maybe the Philippines should have its own HOMELESS BILL OF RIGHTS, too.

"x x x.

n contrast to cities and states that have been trying to sweep the homeless out of sight by criminalizing aspects of homeless activity (like strengthened laws against loitering and asking for change), Rhode Island is taking the “high road,” according to Mother Jones reporter Erika Eichelberger.
The Rhode Island State Assembly has just passed the first Homeless Bill of Rights in the U.S. We looked at the text of the bill, which we assume is pretty much the same as the legislation that will be presented to Gov. Lincoln Chafee next week. The purpose of the law is that, “(N)o person should suffer unnecessarily or be subject to unfair discrimination based on his or her homeless status. It is the intent of this [law]…to ameliorate the adverse effects visited upon individuals and our communities when the state’s residents lack a home.” The bill contains the following provisions, among others, which are worth quoting at some length to see if this bill might be a model for other states:
“A person experiencing homelessness: (1) Has the right to use and move freely in public spaces, including, but not limited to, public sidewalks, public parks, public transportation and public buildings, in the same manner as any other person, and without discrimination on the basis of his or her housing status; (2) Has the right to equal treatment by all state and municipal agencies, without discrimination on the basis of housing status; (3) Has the right not to face discrimination while seeking or maintaining employment due to his or her lack of permanent mailing address, or his or her mailing address being that of a shelter or social service provider; (4) Has the right to emergency medical care free from discrimination based on his or her housing status; (5) Has the right to vote, register to vote, and receive documentation necessary to prove identity for voting without discrimination due to his or her housing status; (6) Has the right to protection from disclosure of his or her records and information provided to homeless shelters and service providers to state, municipal and private entities without appropriate legal authority; and the right to confidentiality of personal records and information in accordance with all limitations on disclosure established by the Federal Homeless Management Information Systems, the Federal Health Insurance Portability and Accountability Act, and the Federal Violence Against Women Act; and (7) Has the right to a reasonable expectation of privacy in his or her personal property to the same extent as personal property in a permanent residence.”
Should there be a right to shelter—that is, a right afforded to everyone of a decent, safe home? We don’t think the Rhode Island homeless bill of rights guarantee the homeless the right to shelter or, even better, the right to a home to cure their homelessness. Still, this is a new development in civil rights. The National Law Center on Homelessness and Poverty believes that this is the first time a state has made “unequal treatment based on housing status…a form of discrimination, which will allow enforcement through litigation.” So one state in this nation’s increasingly federalized system has made discrimination against the homeless based on their lack of a home a violation of civil rights. How quickly will other states pick up this tack? Or does it need a federal standard, rather than subjecting the homeless to various levels of state-by-state acceptance and enforcement?—Rick Cohen
x x x."

Friday, June 22, 2012

Defective petition for writ of amparo

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"x x x.

            Virginia’s Petition for Writ of Amparo is fatally defective and must perforce be dismissed, but not for the reasons adverted to by the petitioners. 

A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to arrest the rampant extralegal killings and enforced disappearances in the country.  Its purpose is to provide an expeditious and effective relief “to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.” [40]

Here, Ben’s right to life, liberty and security is firmly settled as the parties do not dispute his identity as the same person summoned and questioned at petitioners’ security office on the night of March 31, 2008.  Such uncontroverted fact ipso facto established Ben’s inherent and constitutionally enshrined right to life, liberty and security.  Article 6[41] of the International Covenant on Civil and Political Rights[42]recognizes every human being’s inherent right to life, while Article 9[43] thereof ordains that everyone has the right to liberty and security.  The right to life must be protected by law while the right to liberty and security cannot be impaired except on grounds provided by and in accordance with law.  This overarching command against deprivation of life, liberty and security without due process of law is also embodied in our fundamental law.[44]  

The pivotal question now that confronts us is whether Ben’s disappearance as alleged in Virginia’s petition and proved during the summary proceedings conducted before the court a quo, falls within the ambit of A.M. No. 07-9-12-SC and relevant laws. 

It does not.  Section 1 of A.M. No. 07-9-12-SC provides:

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

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

            While Section 1 provides A.M. No. 07-9-12-SC’s coverage, said Rules does not, however, define extralegal killings and enforced disappearances.  This omission was intentional as the Committee on Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC chose to allow it to evolve through time and jurisprudence and through substantive laws as may be promulgated by Congress.[45]  Then, the budding jurisprudence on amparo blossomed in Razon, Jr. v. Tagitis[46] when this Court defined enforced disappearances.  The Court in that case applied the generally accepted principles of international law and adopted the International Convention for the Protection of All Persons from Enforced Disappearance’s definition of enforced disappearances, as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”[47]  

Not long thereafter, another significant development affecting A.M. No. 07-9-12-SC came about after Congress enacted Republic Act (RA) No. 9851[48] on December 11, 2009.  Section 3(g) thereof defines enforced or involuntary disappearances as follows:

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

Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo D. Brion wrote in his Separate Opinion that with the enactment of RA No. 9851, “the Rule on the Writ of Amparo is now a procedural law anchored, not only on the constitutional rights to the rights to life, liberty and security, but on a concrete statutory definition as well of what an ‘enforced or involuntary disappearance’ is.”[50] Therefore, A.M. No. 07-9-12-SC’s reference to enforced disappearances should be construed to mean the enforced or involuntary disappearance of persons contemplated in Section 3(g) of RA No. 9851. Meaning, in probing enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in relation to RA No. 9851. 

From the statutory definition of enforced disappearance, thus, we can derive the following elements that constitute it:

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

(b)         that it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization;

(c)          that it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and,

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

            As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are not enough.  It must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time.  Simply put, the petitioner in an amparocase has the burden of proving by substantial evidence the indispensable element of government participation.

In the present case, we do not doubt Bong’s testimony that Navia had a menacing attitude towards Ben and that he slapped and inflicted fistic blows upon him.  Given the circumstances and the pugnacious character of Navia at that time, his threatening statement, “Wala kang nakita at wala kang narinig, papatayin ko na si Ben,” cannot be taken lightly.  It unambiguously showed his predisposition at that time.  In addition, there is nothing on record which would support petitioners’ assertion that they released Ben on the night of March 31, 2008 unscathed from their wrath.  Lolita sufficiently explained how she was prodded into affixing her signatures in the logbook without reading the entries therein.  And so far, the information petitioners volunteered are sketchy at best, like the alleged complaint of Mrs. Emphasis who was never identified or presented in court and whose complaint was never reduced in writing.

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

We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against a private individual or entity.  But even if the person sought to be held accountable or responsible in anamparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element.  Here, petitioners are mere security guards at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian Land, is a private entity.  They do not work for the government and nothing has been presented that would link or connect them to some covert police, military or governmental operation.  As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be attended by some governmental involvement. This hallmark of State participation differentiates an enforced disappearance case from an ordinary case of a missing person.
x x x."

The rule on reinstatement of illegally dismissed worker

See -

"x x x.

Article 223 of the Labor Code provides that in case there is an order of reinstatement, the employer must admit the dismissed employee under the same terms and conditions, or merely reinstate the employee in the payroll. The order shall be immediately executory. Thus, 3rd Alert cannot escape liability by simply invoking that Navia did not report for work. The law states that the employer must still reinstate the employee in the payroll. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service could be awarded as an alternative.[5]

Since the proceedings below indicate that 3rd Alert failed to adduce additional evidence to show that it tried to reinstate Navia, either physically or in the payroll, we adopt as correct the finding that there was no earnest effort to reinstate Navia. The CA was correct in affirming the judgment of the NLRC in this regard.

We also take note that 3rd Alert resorted to legal tactics to frustrate the execution of the labor arbiter’s order; for about four (4) years, it evaded the obligation to reinstate Navia.  By so doing, 3rd Alert has made a mockery of justice.  We thus find it proper, under the circumstances, to impose treble costs against 3rd Alert for its utter disregard to comply with the writ of execution.  To reiterate, no indication exists showing that 3rd Alert exerted any efforts to reinstate Navia; worse, 3rd Alert’s lame excuse of having sent a notice of reinstatement to a certain “Biznar” only compounded the intent to mislead the courts.

x x x."

Formula for compensatory damages for the loss of the victim’s earning capacity

See -

"x x x.

However, we modify the CA’s decision on the other awards of damages.

          In accordance with current jurisprudence, we delete the award of P20,000 as actual damages and, in its stead, award P30,000.00 as temperate damages.[28]  We also award the heirs of the victim compensatory damages for the loss of the victim’s earning capacity, there being testimonial and documentary evidence on record to support the award.[29]  The wife of the victim testified that the victim was 36 years old and was a soldier receiving a monthly salary of more than P9,000.00. The victim’s pay slip was also presented, showing his earnings of P9,576.00 a month.[30] The award of compensatory damages for loss of earning capacity is computed using the following formula:

Net earning capacity (x)    =         life expectancy x gross annual income -living expenses (50% of gross annual income) [31]

          Under this formula, we award to the heirs of the victim the amount of P1,685,184.48 as compensatory damages for the victim’s loss of earning capacity, calculated as follows:

x        =      2(80-36)   [P 114,912.00 – 57,456.00]

          =      29.33   P 57,456.00

          =      P 1,685,184.48

          Finally, we also award P30,000.00 as exemplary damages, in accordance with prevailing jurisprudence, since the killing was attended by treachery.[32]

x x x."

Judicial policy of non-interference in the investigative powers of the Ombudsman; substantial evidence is required to establish probable cause.

See -

"x x x.

The Court’s policy of non-interference with the Office of the Ombudsman except in a clear case of grave abuse of discretion
The Constitution and R.A. No. 6770[15] endowed the Office of the Ombudsman with wide latitude, in the exercise of its investigatory and prosecutory powers, to pass upon criminal complaints involving public officials and employees.[16] Specifically, the determination of whether probable cause exists[17] is a function that belongs to the Office of the Ombudsman. Whether a criminal case, given its attendant facts and circumstances, should be filed or not is basically its call.[18]

As a general rule, the Court does not interfere with the Office of the Ombudsman’s exercise of its investigative and prosecutorial powers,[19] and respects the initiative and independence inherent in the Office of the Ombudsman which, “beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service.”[20] While the Ombudsman’s findings as to whether probable cause exists are generally not reviewable by this Court,[21] where there is an allegation of grave abuse of discretion, the Ombudsman’s act cannot escape judicial scrutiny under the Court’s own constitutional power and duty “to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”[22]

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman’s exercise of power must have been done in an arbitrary or despotic manner - which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law – in order to exceptionally warrant judicial intervention. The petitioner failed to show the existence of grave abuse of discretion in this case.

Evidentiary basis of probable cause

The petitioner argues that in finding probable cause for violation of Section 3(b) of R.A. No. 3019, the Ombudsman should have used the clear-and-convincing-evidence standard as threshold.

We strongly disagree.   

In line with the constitutionally-guaranteed independence of the Office of the Ombudsman[23] and coupled with the inherent limitations in a certiorari proceeding in reviewing the Ombudsman’s discretion,[24] we have consistently held that so long as substantial evidence supports the Ombudsman’s ruling, his decision should stand.[25] In a criminal proceeding before the Ombudsman, the Ombudsman merely determines whether probable cause exists, i.e., whether there is a sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guiltythereof.[26] Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.[27] As the term itself implies, probable cause is concerned merely with probability and not absolute or even moral certainty;[28] it is merely based on opinion and reasonable belief.[29] On this score, Galario v. Office of the Ombudsman (Mindanao)[30] is instructive

[A] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused. It need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. [italics, underscoring and emphasis ours.]

A finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged.  Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.[31]

          In the present case, the Ombudsman’s finding of probable cause for violation of Section 3(b) of R.A. No. 3019 against the petitioner is supported by substantial evidence. First, the petitioner himself recommended the non-renewal of the complainants’ contractual employment;[32] and second, the petitioner is the head of the Task Force where the complainants were previously employed. As the Ombudsman does, we find these facts sufficient to engender a reasonable belief that the petitioner’s act satisfies one of the elements[33] of the law allegedly violated, and whose existence the petitioner strongly disputes. In turn, these facts rule out any arbitrariness in the Ombudsman’s determination of probable cause. Whether the evidence before the Ombudsman will be sufficient to procure a conviction is a different matter that must await the trial of the criminal case.

x x x."