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.

Lawyer disbarred for deceit and falsification as notary public.

In LUSTESTICA vs. ATTY. BERNABE, AC No. 6258, En Banc, Aug. 24, 2010, the Supreme Court declared the respondent Atty. Sergio E. Bernabe liable for gross negligence, in the performance of his duties as notary public, and for his deceitful and dishonest attestation, in the course of administering the oath taken before him. Atty. Sergio E. Bernabe was DISBARRED from the practice of law and his name ordered STRICKEN from the Roll of Attorneys. He waa also PERPETUALLY DISQUALIFIED from being commissioned as a notary public. The Court ordered that a copy of the Decision be attached to Atty. Sergio E. Bernabe’s record, as a member of the bar, and copies furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator for circulation to all courts. In view of the notarization of a falsified deed whose purported parties were already dead at the time of notarization, the Court ordered that a copy of the Decision be furnished the Office of the Prosecutor General, Department of Justice for whatever action, within its jurisdiction, it may deem appropriate to bring against Atty. Sergio E. Bernabe. The doctrinal pronouncements of the Court are as follows:

1. IMPORTANCE OF NOTARY PUBLIC. - We cannot overemphasize the important role a notary public performs. In Gonzales v. Ramos,[11] we stressed that notarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity.[12] A notarized document is, by law, entitled to full faith and credit upon its face.[13] It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.[14]



2. GROSS NEGLIGENCE. - The records undeniably show the gross negligence exhibited by the respondent in discharging his duties as a notary public. He failed to ascertain the identities of the affiants before him and failed to comply with the most basic function that a notary public must do, i.e., to require the parties’ presentation of their residence certificates or any other document to prove their identities. Given the respondent’s admission in his pleading that the donors were already dead when he notarized the Deed of Donation, we have no doubt that he failed in his duty to ascertain the identities of the persons who appeared before him as donors in the Deed of Donation.



3. DOUBLE VIOLATIONS. - Under the circumstances, we find that the respondent should be made liable not only as a notary public but also as a lawyer. He not only violated the Notarial Law (Public Act No. 2103), but also Canon 1 and Rule 1.01 of the Code of Professional Responsibility.



Section 1 of Public Act No. 2103 (Old Notarial Law)[15] states:





(a) The acknowledgment shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state.



In turn, Canon 1 of the Code of Professional Responsibility provides that “[a] lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.” At the same time, Rule 1.01 of the Code of Professional Responsibility prohibits a lawyer from engaging in unlawful, dishonest, immoral or deceitful conduct.


4. PRECEDENTS. - In Maligsa v. Cabanting,[19] we disbarred a lawyer for failing to subscribe to the sacred duties imposed upon a notary public. In imposing the penalty of disbarment, the Court considered the lawyer’s prior misconduct where he was suspended for a period of six (6) months and warned that a repetition of the same or similar act would be dealt with more severely.[20]



In Flores v. Chua,[21] we disbarred the lawyer after finding that he deliberately made false representations that the vendor appeared before him when he notarized a forged deed of sale. We took into account that he was previously found administratively liable for violation of Rule 1.01 of the Code of Professional Responsibility (for bribing a judge) and sternly warned that a repetition of similar act or acts or violation committed by him in the future would be dealt with more severely.[22]



In Traya v. Villamor,[23] we found the respondent notary public guilty of gross misconduct in his notarial practice for failing to observe the proper procedure in determining that the person appearing before him is the same person who executed the document presented for notarization. Taking into account that it was his second offense, he was perpetually disqualified from being commissioned as a notary public.[24]



In Social Security Commission v. Coral,[25] we suspended indefinitely the notarial commission of the respondent lawyer who was found to have prepared, notarized and filed two complaints that were allegedly executed and verified by people who have long been dead. We also directed him to show cause why he should not be disbarred.[26]



5. DISBARRED. - Considering these established rulings, read in light of the circumstances in the present case, we find that Atty. Bernabe should be disbarred from the practice of law and perpetually disqualified from being commissioned as a notary public. We emphasize that this is respondent’s second offense and while he does not appear to have any participation in the falsification of the Deed of Donation, his contribution was his gross negligence for failing to ascertain the identity of the persons who appeared before him as the donors. This is highlighted by his admission[27] in his Answer that he did not personally know the parties and was not acquainted with them. The blank spaces in the Acknowledgment indicate that he did not even require these parties to produce documents that would prove that they are the same persons they claim to be. As we emphasized in Maligsa:

A lawyer shall at all times uphold the integrity and dignity of the legal profession. The bar should maintain a high standard of legal proficiency as well as honesty and fair dealing. A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end a member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession.[28]

Substantive and quality justice vs. speedy justice per se; justices punished.

In Jamsani-Ropdriguez v.s Ong, et. al., AM No. 08-19-SB_J, Aug. 24, 2010, the Supreme Court ordered ASSOCIATE JUSTICE GREGORY S. ONG to pay a fine of P15,000.00, with a stern warning that a repetition of the same or similar offenses shall be dealt with more severely; admonished ASSOCIATE JUSTICE JOSE R. HERNANDEZ with a warning that a repetition of the same or similar offenses shall be dealt with more severely; and warned ASSOCIATE JUSTICE RODOLFO A. PONFERRADA to be more cautious about the proper procedure to be taken in proceedings before his court. The doctrinal pronouncements of the Court are as follows:


1. Respondents’ Violation of the provisions of PD 1606 and Revised Internal Rules of the Sandiganbayan. -



Respondent Justices contend that they preserved the collegiality of the Fourth Division despite their having separately conducted hearings, considering that the three of them were in the same venue and were acting within hearing and communicating distance of one another.



The contention is not well-taken.



Section 3 of PD 1606,[21] the law establishing the Sandiganbayan, provides:



Section 3. Division of the Courts; Quorum. - The Sandiganbayan shall sit in three divisions of three Justices each. The three divisions may sit at the same time.



Three Justices shall constitute a quorum for sessions in division; Provided, that when the required quorum for the particular division cannot be had due to the legal disqualification or temporary disability of a Justice or of a vacancy occurring therein, the Presiding Justice may designate an Associate Justice of the Court, to be determined by strict rotation on the basis of the reverse order of precedence, to sit as a special member of said division with all the rights and prerogatives of a regular member of said division in the trial and determination of a case or cases assigned thereto, unless the operation of the court will be prejudiced thereby, in which case the President shall, upon the recommendation of the Presiding Justice, designate any Justice or Justices of the Court of Appeals to sit temporarily therein.



An implementing rule is Section 3, Rule II of the Revised Internal Rules of the Sandiganbayan, viz:



Section 3. Constitution of the Divisions. - The Sandiganbayan shall sit in five (5) Divisions of three (3) Justices each, including the Presiding Justice. The five (5) Divisions may sit separately at the same time. Each of the five (5) most senior Associate Justices including the Presiding Justice, shall be the Chairman of a Division; each of the five (5) Associate Justices next in rank shall be the Senior Member of a Division; and each of the last five (5) Associate Justices shall be the Junior Member of a Division.





Under the foregoing provisions, the Sandiganbayan is a collegial court. Collegial is defined as relating to a collegium or group of colleagues. In turn, a collegium is “an executive body with each member having approximately equal power and authority.”[22] In a collegial court, therefore, the members act on the basis of consensus or majority rule. Thus, PD 1606, as amended, and the Revised Internal Rules of the Sandiganbayan, supra, call for the actual presence of the three Justices composing the Division to constitute a quorum to conduct business and to hold trial proceedings. Necessarily, the exclusion or absence of any member of a Division from the conduct of its business and from the trial proceedings negates the existence of a quorum and precludes collegiality.



As if underscoring the need for all three members to be actually present and in attendance during sessions, Section 3 of PD 1606, as amended, further requires that:-



xxx when the required quorum for the particular division cannot be had due to the legal disqualification or temporary disability of a Justice or of a vacancy occurring therein, the Presiding Justice may designate an Associate Justice of the Court, to be determined by strict rotation on the basis of the reverse order of precedence, to sit as a special member of said division with all the rights and prerogatives of a regular member of said division in the trial and determination of a case or cases assigned thereto, unless the operation of the court will be prejudiced thereby, in which case the President shall, upon the recommendation of the Presiding Justice, designate any Justice or Justices of the Court of Appeals to sit temporarily therein.



Respondent Justices cannot lightly regard the legal requirement for all of them to sit together as members of the Fourth Division “in the trial and determination of a case or cases assigned thereto.” The information and evidence upon which the Fourth Division would base any decisions or other judicial actions in the cases tried before it must be made directly available to each and every one of its members during the proceedings. This necessitates the equal and full participation of each member in the trial and adjudication of their cases. It is simply not enough, therefore, that the three members of the Fourth Division were within hearing and communicating distance of one another at the hearings in question, as they explained in hindsight, because even in those circumstances not all of them sat together in session.



2. COLLEGIALITY. - Indeed, the ability of the Fourth Division to function as a collegial body became impossible when not all of the members sat together during the trial proceedings. The internal rules of the Sandiganbayan spotlight an instance of such impossibility. Section 2, Rule VII of the Revised Internal Rules of the Sandiganbayan expressly requires that rulings on oral motions made or objections raised in the course of the trial proceedings or hearings are be made by the Chairman of the Division. Obviously, the rule cannot be complied with because Justice Ong, the Chairman, did not sit in the hearing of the cases heard by the other respondents. Neither could the other respondents properly and promptly contribute to the rulings of Justice Ong in the hearings before him.



Moreover, the respondents’ non-observance of collegiality contravened the very purpose of trying criminal cases cognizable by Sandiganbayan before a Division of all three Justices. Although there are criminal cases involving public officials and employees triable before single-judge courts, PD 1606, as amended, has always required a Division of three Justices (not one or two) to try the criminal cases cognizable by the Sandiganbayan, in view of the accused in such cases holding higher rank or office than those charged in the former cases. The three Justices of a Division, rather than a single judge, are naturally expected to exert keener judiciousness and to apply broader circumspection in trying and deciding such cases. The tighter standard is due in part to the fact that the review of convictions is elevated to the Supreme Court generally via the discretionary mode of petition for review on certiorari under Rule 45, Rules of Court, which eliminates issues of fact, instead of via ordinary appeal set for the former kind of cases (whereby the convictions still undergo intermediate review before ultimately reaching the Supreme Court, if at all).



3. COLLEGIAL BODY. - In GMCR, Inc. v. Bell Telecommunication Philippines, Inc.,[23] the Court delved on the nature of a collegial body, and how the act of a single member, though he may be its head, done without the participation of the others, cannot be considered the act of the collegial body itself. There, the question presented was whether Commissioner Simeon Kintanar, as chairman of the National Telecommunications Commission (NTC), could alone act in behalf of and bind the NTC, given that the NTC had two other commissioners as members. The Court ruled:



First. We hereby declare that the NTC is a collegial body requiring a majority vote out of the three members of the commission in order to validly decide a case or any incident therein. Corollarily, the vote alone of the chairman of the commission, as in this case, the vote of Commissioner Kintanar, absent the required concurring vote coming from the rest of the membership of the commission to at least arrive at a majority decision, is not sufficient to legally render an NTC order, resolution or decision.



Simply put, Commissioner Kintanar is not the National Telecommunications Commission. He alone does not speak for and in behalf of the NTC. The NTC acts through a three-man body, and the three members of the commission each has one vote to cast in every deliberation concerning a case or any incident therein that is subject to the jurisdiction of the NTC. When we consider the historical milieu in which the NTC evolved into the quasi-judicial agency it is now under Executive Order No. 146 which organized the NTC as a three-man commission and expose the illegality of all memorandum circulars negating the collegial nature of the NTC under Executive Order No. 146, we are left with only one logical conclusion: the NTC is a collegial body and was a collegial body even during the time when it was acting as a one-man regime.



The foregoing observations made in GMCR, Inc. apply to the situation of respondent Justices as members of the Fourth Division. It is of no consequence, then, that no malice or corrupt motive impelled respondent Justices into adopting the flawed procedure. As responsible judicial officers, they ought to have been well aware of the indispensability of collegiality to the valid conduct of their trial proceedings.



4. JUSTICES VIOLATED THEIR OWN RULES. - We find that the procedure adopted by respondent Justices for their provincial hearings was in blatant disregard of PD 1606, as amended, the Rules of Court, and the Revised Internal Rules of the Sandiganbayan. Even worse, their adoption of the procedure arbitrarily denied the benefit of a hearing before a duly constituted Division of the Sandiganbayan to all the affected litigants, including the State, thereby rendering the integrity and efficacy of their proceedings open to serious challenge on the ground that a hearing before a duly constituted Division of the Sandiganbayan was of the very essence of the constitutionally guaranteed right to due process of law.



Judges are not common individuals whose gross errors men forgive and time forgets.[24] They are expected to have more than just a modicum acquaintance with the statutes and procedural rules.[25] For this reason alone, respondent Justices’ adoption of the irregular procedure cannot be dismissed as a mere deficiency in prudence or as a lapse in judgment on their part, but should be treated as simple misconduct, which is to be distinguished from either gross misconduct or gross ignorance of the law. The respondent Justices were not liable for gross misconduct – defined as the transgression of some established or definite rule of action, more particularly, unlawful behavior or gross negligence,[26] or the corrupt or persistent violation of the law or disregard of well-known legal rules[27] – considering that the explanations they have offered herein, which the complainant did not refute, revealed that they strove to maintain their collegiality by holding their separate hearings within sight and hearing distance of one another. Neither were they liable for gross ignorance of the law, which must be based on reliable evidence to show that the act complained of was ill-motivated, corrupt, or inspired by an intention to violate the law, or in persistent disregard of well-known legal rules;[28] on the contrary, none of these circumstances was attendant herein, for the respondent Justices have convincingly shown that they had not been ill-motivated or inspired by an intention to violate any law or legal rule in adopting the erroneous procedure, but had been seeking, instead, to thereby expedite their disposition of cases in the provinces.



6. JUSTICE IS THE GOAL, NOT SPEEDY TRIAL PER SE. - Nonetheless, it remains that the respondent Justices did not ensure that their proceedings accorded with the provisions of the law and procedure. Their insistence that they adopted the procedure in order to expedite the hearing of provincial cases is not a sufficient reason to entirely exonerate them, even if no malice or corruption motivated their adoption of the procedure. They could have seen that their procedure was flawed, and that the flaw would prevent, not promote, the expeditious disposition of the cases by precluding their valid adjudication due to the nullifying taint of the irregularity. They knew as well that the need to expedite their cases, albeit recommended, was not the chief objective of judicial trials. As the Court has reminded judges in State Prosecutors v. Muro,[29] viz:



Although a speedy determination of an action or proceeding implies a speedy trial, it should be borne in mind that speed is not the chief objective of a trial. Careful and deliberate consideration for the administration of justice is more important than a race to end the trial. A genuine respect for the rights of all parties, thoughtful consideration before ruling on important questions, and a zealous regard for the just administration of law are some of the qualities of a good trial judge, which are more important than a reputation for hasty disposal of cases.

xxx xxx xxx

What is required on the part of judges is objectivity. An independent judiciary does not mean that judges can resolve specific disputes entirely as they please. There are both implicit and explicit limits on the way judges perform their role. Implicit limits include accepted legal values and the explicit limits are substantive and procedural rules of law.



The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinate to the “primordial necessity of order in the social life.”




7. NOT FALSIFICATION. - Relevantly, we do not consider the respondent Justices’ signing of the orders issued during the flawed proceedings as a form of falsification or dishonesty, in that they thereby made it appear that they had all been physically present when the truth was different. Such act merely ensued from the flawed proceedings and cannot be treated as a separate offense.


8. Unbecoming Conduct of Justice Ong and Justice Hernandez NOT PROVED. - The Court approves the Court Administrator’s finding and recommendation that no evidence supported the complainant’s charge that Justice Ong and Justice Hernandez had uttered the improper and intemperate statements attributed to them.



A review of the transcripts of the stenographic notes for the hearings in which the offensive statements were supposedly uttered by them has failed to substantiate the complainant’s charge. In the absence of a clear showing to the contrary, the Court must accept such transcripts as the faithful and true record of the proceedings, because they bear the certification of correctness executed by the stenographers who had prepared them.


9. JUSTICES INSULT LAWYERS, PUNISHED. - Even so, Justice Ong and Justice Hernandez admitted randomly asking the counsels appearing before them from which law schools they had graduated, and their engaging during the hearings in casual conversation about their respective law schools. They thereby publicized their professional qualifications and manifested a lack of the requisite humility demanded of public magistrates. Their doing so reflected a vice of self-conceit. We view their acts as bespeaking their lack of judicial temperament and decorum, which no judge worthy of the judicial robes should avoid especially during their performance of judicial functions. They should not exchange banter or engage in playful teasing of each other during trial proceedings (no matter how good-natured or even if meant to ease tension, as they want us to believe). Judicial decorum demands that they behave with dignity and act with courtesy towards all who appear before their court.



Indeed, Section 6, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary clearly enjoins that:



Section 6. Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control.



We point out that publicizing professional qualifications or boasting of having studied in and graduated from certain law schools, no matter how prestigious, might have even revealed, on the part of Justice Ong and Justice Hernandez, their bias for or against some lawyers. Their conduct was impermissible, consequently, for Section 3, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary, demands that judges avoid situations that may reasonably give rise to the suspicion or appearance of favoritism or partiality in their personal relations with individual members of the legal profession who practice regularly in their courts.



9. JUDGES SHOULD ACT WITH DIGNITY. - Judges should be dignified in demeanor, and refined in speech. In performing their judicial duties, they should not manifest bias or prejudice by word or conduct towards any person or group on irrelevant grounds.[30] It is very essential that they should live up to the high standards their noble position on the Bench demands. Their language must be guarded and measured, lest the best of intentions be misconstrued. In this regard, Section 3, Canon 5 of the New Code of Judicial Conduct for the Philippine Judiciary, mandates judges to carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff, and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties.



In view of the foregoing, Justice Ong and Justice Hernandez were guilty of unbecoming conduct, which is defined as improper performance. Unbecoming conduct “applies to a broader range of transgressions of rules not only of social behavior but of ethical practice or logical procedure or prescribed method.”[31]



10. Respondent Justices Not Guilty of Manifest Partiality. - The charge of manifest partiality for issuing the resolution granting the demurrer to evidence of the accused in Criminal Case No. 25801 is dismissed. As already mentioned, this Court upheld the assailed resolution on June 5, 2006 in G. R. No. 171116 by declaring the petition of the Office of the Special Prosecutor assailing such dismissal to have “failed to sufficiently show that the Sandiganbayan had committed any reversible error in the questioned judgment to warrant the exercise by this Court of its discretionary appellate jurisdiction.”



At any rate, it is worth stressing that a judge will be held administratively liable for rendering an unjust judgment only if he acts with bad faith, malice, revenge, or some other similar motive.[32]




10. JUDGES MUST BE ACCOUNTABLE. - It becomes timely to reiterate that an honorable, competent and independent Judiciary exists to administer justice in order to promote the stability of government and the well-being of the people.[34] We warn, therefore, that no conduct, act, or omission on the part of anyone involved in the administration of justice that violates the norm of public accountability and diminishes the faith of the people in the Judiciary shall be countenanced.[35] Public confidence in the judicial system and in the moral authority and integrity of the Judiciary is of utmost importance in a modern democratic society; hence, it is essential for all judges, individually and collectively, to respect and honor the judicial office as a public trust and to strive to enhance and maintain confidence in the judicial system.[36]

Additional evidence, recall of witness - when allowed.

In Republic v. Sandiganbayan, GR No. 159275, Aug. 25, 2010, the Supreme Court allowed the Republic to present additional evidence and recall witnesses as prayed for in its Motion to Reopen Plaintiff’s Presentation of Evidence, on the following doctrinal pronouncements, to wit:

1. CERTIORARI, when motion for reconsideration not needed. - As a rule, the special civil action of certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, lies only when the lower court has been given the opportunity to correct the error imputed to it through a motion for reconsideration of the assailed order or resolution.[21] This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in cases of urgency. As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that have already been squarely argued and exhaustively passed upon by the lower court.[22]

Aside from the public interest involved in the recovery of alleged ill-gotten wealth by the Government, it was shown that the issue herein raised by petitioner had already been squarely argued by it and amply discussed by public respondent in its assailed resolution. Hence, the requirement of prior filing of a motion for reconsideration may be dispensed with.

2. INTERLOCUTORY ORDER defined. - Contrary to public respondent’s posture, its order denying admission to petitioner’s documentary exhibits, as well as the denial of the motion to reopen for presentation of additional evidence for plaintiff, was merely interlocutory. An order that does not finally dispose of the case, and does not end the Court’s task of adjudicating the parties’ contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is interlocutory.[23]

Certiorari is an appropriate remedy to assail an interlocutory order (1) when the tribunal issued such order without or in excess of jurisdiction or with grave abuse of discretion; and (2) when the assailed interlocutory order is patently erroneous, and the remedy of appeal would not afford adequate and expeditious relief.[24] Recourse to a petition for certiorari to assail an interlocutory order is now expressly recognized in the ultimate paragraph of Section 1, Rule 41 of the Revised Rules of Court on the subject of appeal, which states:[25]

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.

Public respondent seriously erred in denying the motion to reopen for presentation of additional evidence on the basis of the supposed “final and executory” ruling which denied admission of Exhibits “B” to “E” in the Formal Offer of Evidence filed by the petitioner. Admission of additional evidence is addressed to the sound discretion of the trial court. Indeed, in the furtherance of justice, the court may grant the parties the opportunity to adduce additional evidence bearing upon the main issue in question.[26] The remedy of reopening a case for presenting further proofs was meant to prevent a miscarriage of justice.[27]

While it is true that the 1997 Rules of Civil Procedure, as amended, prescribed an order of trial (Section 5, Rule 30), relaxation of the rule is permitted in sound discretion of the court. According to Justice Jose Y. Feria in his annotations on civil procedure:

3. ADDITIONAL EVIDENCE, when allowed. - After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered.[28]

Considering that petitioner, in requesting to reopen the presentation of additional evidence after it has rested its case, sought to present documentary exhibits consisting of certified copies which had earlier been denied admission for being photocopies, additional documents previously mentioned in its pre-trial brief and new additional evidence material in establishing the main issue of ill-gotten wealth allegedly amassed by the private respondents, singly or collectively, public respondent should have, in the exercise of sound discretion, properly allowed such presentation of additional evidence. Bearing in mind that even if the originals of the documentary exhibits offered as additional evidence have been in the custody of the PCGG since the filing of the complaint or at least at the time of the preparation of its original pre-trial brief in September 1990, public respondent should have duly considered the explanation given by PCGG Commissioner Ruben C. Carranza and PCGG Librarian Ma. Lourdes O. Magno in their respective affidavits[29] attached to the motion, as to the belated discovery of the original documentary evidence which had long been in the possession of PCGG. Given the voluminous documents and papers involved in ill-gotten wealth cases, it was indeed unavoidable that in the course of trial certain documentary exhibits were omitted or unavailable by inadvertence, as what had happened in this case where the subject original documentary evidence were found misfiled in a different case folder.

Lamentably, public respondent peremptorily denied petitioner’s plea for a chance to present additional evidence vital to its case, saying that it cannot “just simply brush aside what had been taken up [after these years of hearing],” and even alluding to the supposed “adverse consequences to the time honored orderly presentation of evidence and the universally acclaimed expeditious, speedy and inexpensive disposition of all action[s] and proceedings.” On the other hand, respondent Silverio contended that allowing the motion to reopen would only cause him to suffer further “harassment and injustice.” However, perusal of the records plainly reveals that petitioner was not responsible for the delay in the prosecution of this case. The protracted litigation was due to the numerous pleadings, postponements and various motions filed by respondents Marcoses. Clearly, public respondent’s rigid application of the rule on order of trial was arbitrary, improper and in utter disregard of the demands of substantial justice.

4. TECHNICAL RULES not applicable in ill-gotten wealth cases. - Executive Order No. 14, series of 1986, issued by former President Corazon C. Aquino, provided that technical rules of procedure and evidence shall not be strictly applied to cases involving ill-gotten wealth. Apropos is our pronouncement in Republic v. Sandiganbayan (Third Division):[30]

In all cases involving alleged ill-gotten wealth brought by or against the Presidential Commission on Good Government, it is the policy of this Court to set aside technicalities and formalities that serve merely to delay or impede their judicious resolution. This Court prefers to have such cases resolved on the merits before the Sandiganbayan. Substantial justice to all parties, not mere legalisms or perfection of form, should now be relentlessly pursued. Eleven years have passed since the government started its search for and reversion of such alleged ill-gotten wealth. The definitive resolution of such cases on the merits is thus long overdue. If there is adequate proof of illegal acquisition, accumulation, misappropriation, fraud or illicit conduct, let it be brought out now. Let the titles over these properties be finally determined and quieted down with all reasonable speed, free of delaying technicalities and annoying procedural sidetracks. (Emphasis supplied.)

5. LIBERALITY. - It was incumbent upon the public respondent to adopt a liberal stance in the matter of procedural technicalities. More so in the instant case where the showing of a prima facie case of ill-gotten wealth was sustained by this Court in Silverio v. Presidential Commission on Good Government in No. L-77645 under the Resolution dated October 26, 1987.[31] Petitioner should be given the opportunity to fully present its evidence and prove that the various business interests of respondent Silverio “have enjoyed considerable privileges obtained from [respondent] former President Marcos during [the latter’s] tenure as Chief Executive in violation of existing laws; privileges which could not have been so obtained were it not for the close association of [Silverio] with the former President.”[32] No element of surprise could have been intended in the motion to reopen considering that these documentary exhibits were either certified copies of the originals in the custody of the PCGG, properly identified by the witness who prepared the same (Godofredo dela Paz) and statements under oath from a testimony given before the US District Court by respondent Silverio himself.

6. GRAVE ABUSE OF DISCRETION. - The term “grave abuse of discretion” connotes capricious and whimsical exercise of judgment as is equivalent to excess, or a lack of jurisdiction. The abuse must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[33]

Public respondent gravely abused its discretion in disallowing the presentation of additional evidence by the petitioner after the latter made a formal offer of documentary evidence, at the time the respondents had not even commenced the presentation of their evidence. Such arbitrary denial of petitioner’s motion to reopen for presentation of additional evidence would result in serious miscarriage of justice as it deprives the Republic of the chance to fully prove its case against the respondents and recover what could be “illegally-gotten” wealth.

Cityhood case: the long procession.

see:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2010/08/08271001.php


SC Reinstates 2008 Decision Voiding 16 Cityhood Laws
Posted August 27, 2010; By Jay B. Rempillo

Voting 7-6 with two justices taking no part, the Supreme Court has granted the motions for reconsideration of the League of Cities of the Philippines (LCP), et al. and reinstated its November 18, 2008 decision declaring unconstitutional the Cityhood Laws or Republic Acts (RAs) converting 16 municipalities into cities.

In a 16-page resolution penned by Senior Justice Antonio T. Carpio, the Court ruled that there could be no reversal of the November 18, 2008 decision “for a tie-vote cannot result in any court order or directive,” as it noted that the Court was evenly divided when it subsequently voted on the second motion for reconsideration. It further ruled that a tie-vote is a non-majority which cannot overrule a prior affirmative action, which in this case was the November 18, 2008 decision striking down the Cityhood Laws.

The SC En Banc upheld its November 18, 2008 decision when the Court by a majority vote denied respondents’ Commission on Elections, et al. on March 31, 2009 first motion for reconsideration. On April 28, 2009, the SC En Banc, by a split vote, denied a second motion for reconsideration. Subsequently, the November 18, 2008 ruling became final and executory and was recorded in the Book of Entries of Judgments on May 21, 2009. However, shortly thereafter, it was realized that there were still pending unresolved motions. Hence, in the resolution of the pending motions, the Court, on December 21, 2009, reversed its November 18, 2008 decision.

“Undeniably, the 6-6 vote did not overrule the prior majority en banc Decision of 18 November 2008, as well as the prior majority en banc Resolution of 31 March 2009 denying reconsideration. The tie-vote on the second motion for reconsideration is not the same as a tie-vote on the main decision where there is no prior decision,” the Court said.

In the latest resolution, the Court reiterated its November 18, 2008 ruling that the Cityhood Laws violate sec. 10, Art. X of the Constitution which expressly provides that “no city…shall be created…except in accordance with the criteria established in the local government code.” It stressed that while all the criteria for the creation of cities must be embodied exclusively in the Local Government Code, the assailed Cityhood Laws provided an exemption from the increased income requirement for the creation of cities under sec. 450 of the LGC.

“The unconstitutionality of the Cityhood Laws lies in the fact that Congress provided an exemption contrary to the express language of the Constitution….[C]ongress exceeded and abused its law-making power, rendering the challenged Cityhood Laws void for being violative of the Constitution,” the Court held.

The Court further held that “limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause.”

Joining Justice Carpio are Justices Conchita Carpio Morales, Arturo D. Brion, Diosdado M. Peralta, Martin S. Villarama, Jr., Jose C. Mendoza, and Maria Lourdes P.A. Sereno.

Justice Presbitero J. Velasco, Jr. who penned the assailed December 21, 2009 ruling, wrote a dissenting opinion. He was joined in his dissent by Chief Justice Renato C. Corona and Justices Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Roberto A. Abad, and Jose Portugal Perez.

Justices Antonio Eduardo B. Nachura and Mariano C. Del Castillo took no part.

The Court ruled that the Constitution is clear that the creation of local government units (LGUs) must follow the criteria established in the LGC and not in any other law. The said Cityhood Laws, all enacted after the effectivity of RA 9009 increasing the income requirement for cityhood from PhP20 million to PhP100 million in sec. 450 of the Local Government Code (LGC), explicitly exempt respondent municipalities from the said increased income requirement.

The Court noted petitioner LCP’s motion to annul the December 21, 2009 ruling that earlier declared as constitutional said Cityhood Laws.

For his part, Justice Velasco opined: “[T]he only conceivable reason why the Constitution employs the clause ‘in accordance with the criteria established in the local government code’ is to lay stress that it is Congress alone, and no other, which can define, prescribe and impose the criteria. The imposition may be effected either in a consolidated set of laws or a single-subject enactment, like RA 9009. And provided the imperatives of the equal protection clause are not transgressed, an exemption from the imposition may be allowed, just like the cityhood laws.”
Declared as unconstitutional were RA Nos. 9389 (Baybay City in Leyte), 9390 (Bogo City in Cebu), 9391 (Catbalogan City in Samar), 9392 (Tandag City in Surigao del Sur), 9393 (Lamitan City in Basilan), 9394 (Borongan City in Samar), 9398 (Tayabas City in Quezon), 9404 (Tabuk City in Kalinga), 9405 (Bayugan City in Agusan del Sur), 9407 (Batac City in Ilocos Norte), 9408 (Mati City in Davao Oriental), 9409 (Guihulngan City in Negros Oriental), 9434 (Cabadbaran City in Agusan del Norte), 9435 (El Salvador City in Misamis Oriental), 9436 (Carcar City in Cebu), and 9491 (Naga City in Cebu). (GR No. 176951, League of Cities of the Philippines v. Comelec; GR No. 177499, League of Cities of the Philippines v. Comelec; GR No. 178056, League of Cities of the Philippines v. Comelec, August 24, 2010)

Due process in administrative cases

See:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2010/08/08201002.php

SC Rules for Two Preventively Suspended GSIS Lawyers
Posted August 20, 2010; By Joachim Florencio Q. Corsiga

The Supreme Court En Banc recently affirmed the Court of Appeals decision declaring the preventive suspension of two Government Service Insurance System (GSIS) lawyers null and void and awarding them their back salaries during the period of their unjustified suspension.

In a 15-page decision penned by Justice Antonio Eduardo B. Nachura, the Court found that respondents Maria Molina and Albert Velasco, both Attorney V of the GSIS, were denied due process of the law when petitioner Winston Garcia, in his capacity as GSIS President and General Manager, sans the requisite preliminary investigation issued two separate Memoranda charging the respondents with allegedly committing acts constituting grave misconduct and ordering their preventive suspension for 90 days without pay.

The Court held that although the Civil Service Rules do not specifically provide that a formal charge without the requisite preliminary investigation is null and void, it is, however, “mandatory for the disciplinary authority to conduct a preliminary investigation or at least respondent should be given the opportunity to comment and explain his side.” The Court adds “this is done prior to the issuance of the formal charge and the comment required therein is different from the answer that may later be filed by respondents.” No exception is provided by the CSC Rules, not even an indictment in flagranti, as claimed by the petitioner, held the Court.

The Court explained that even if the complainant is the disciplining authority himself, he could comply with such requirement by issuing a “memorandum requiring the respondents to explain why no disciplinary action should be taken against them instead of immediately issuing formal charges. With respondents' comments, petitioner would have properly evaluated both sides of the controversy before making a conclusion that there was a prima facie case against the respondents, leading to the issuance of the questioned formal charges.”

The Court stressed the cardinal precept “that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right to due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial and administrative proceedings, for the constitutional guarantee that no man shall be deprived of life, liberty, or property without due process is unqualified by the type of proceedings (whether judicial or administrative) where he stands to lose the same.” (GR No. 157383, Garcia v. Molina, and GR No. 174137, Garcia v. Molina, August 10, 2010)

Slowly opening up

Below are excerpts from the Supreme Court EN BANC Resolution in A.M. No. 10-4-20-SC (THE INTERNAL RULES OF THE SUPREME COURT RESOLUTION), dated May 4, 2010, adopted during the previous tenure of Chief Justice REYNATO S. PUNO, a serious reading of which, to my mind, would surely benefit the members of the bench and the bar.

To its credit, slowly, and, I say, very slowly, the Court is trying its very best to open up its "internal secrets", if you like, to the general public to remove from the minds of ordinary citizens the misconception of the aloof and confusing mysticism of the Court as a huge and frightening judicial fortress.

Rightly or wrongly, the common tao misconstrue such a negative image as symbolic of the indifference of the intellectual, the social irrelevance of a metaphysical scholar, or the institutional arrogance of an unelected center of governmental power.


x x x.

RULE 2

SEC. 13. Ethics Committee. – In addition to the above, a permanent Committee on Ethics and Ethical Standards shall be established and chaired by the Chief Justice xxx.

The Committee shall have the task of preliminarily investigating all complaints involving graft and corruption and violations of ethical standards, including anonymous complaints, filed against Members of the Court, and of submitting findings and recommendations to the en banc. All proceedings shall be completely confidential. The Committee shall also monitor and report to the Court the progress of the investigation of similar complaints against Supreme Court officials and employees, and handle the annual update of the Court’s ethical rules and standards for submission to the en banc.

SEC. 14. Per curiam decisions. – Unless otherwise requested by the Member assigned to write the opinion of the Court, the decision or resolution shall be rendered per curiam

(a) where the penalty imposed is dismissal from service, disbarment, or indefinite suspension in administrative cases; or

(b) in any other case by agreement of the majority of the Members or upon request of a Member.


RULE 4

SECTION 1. Disciplinary cases against Court personnel. – Administrative supervision of courts and court personnel shall be undertaken by the Court en banc, provided that, in appropriate cases, such function may be undertaken by the Divisions.

SEC. 2. Assisting offices in the exercise of administrative function. – In the discharge of its administrative functions, the Court shall be assisted by the Office of the Clerk of Court in administrative matters and cases involving the Court and the collegial appellate courts, and by the Office of the Court Administrator in administrative matters and cases involving the lower courts.

SEC. 3. Administrative functions of the Court. – The administrative functions of the Court en banc consist of, but are not limited to, the following:

(a) the discipline of justices, judges and court personnel, whether by en banc or by Division, subject to matters assignable to the Divisions, disciplinary matters involving justices, judges and court personnel;


RULE 7

SECTION 1. Raffle of cases. – Every initiatory pleading already identified by a G.R. or a UDK number shall be raffled among the Members of the Court. The Member-in-Charge to whom a case is raffled, whether such case is to be taken up by the Court en banc or by a Division, shall oversee its progress and disposition unless for valid reason, such as inhibition, the case has to be re-raffled, unloaded or assigned to another Member.

SEC. 2. Raffle Committee. – Two Raffle Committees— one for the en banc and the other for Division cases, each to be composed of a Chairperson and two members— shall be designated by the Chief Justice from among the Members of the Court on the basis of seniority.

SEC. 3. Raffle Committee Secretariat. – The Clerk of Court shall serve as the Secretary of the Raffle Committee. He or she shall be assisted by a court attorney, duly designated by the Chief Justice from either the Office of the Chief Justice or the Office of the Clerk of Court, who shall be responsible for (a) recording the raffle proceedings and (b) submitting the minutes thereon to the Chief Justice. The Clerk of Court shall make the result of the raffle available to the parties and their counsels or to their duly authorized representatives, except the raffle of (a) bar matters; (b)
administrative cases; and (c) criminal cases where the penalty imposed by the lower court is life imprisonment, and which shall be treated with strict confidentiality.

RULE 8
INHIBITION AND SUBSTITUTION OF
MEMBERS OF THE COURT

SECTION 1. Grounds for inhibition. – A Member of the Court shall
inhibit himself or herself from participating in the resolution of the case for
any of these and similar reasons:

(a) the Member of the Court was the ponente of the decision or participated in the proceedings in the appellate or trial court;

(b) the Member of the Court was counsel, partner or member of a law firm that is or was the counsel in the case subject to Section 3(c) of this rule;

(c) the Member of the Court or his or her spouse, parent or child is pecuniarily interested in the case;

(d) the Member of the Court is related to either party in the case within the sixth degree of consanguinity or affinity, or to an attorney or any member of a law firm who is counsel of record in the case within the fourth degree of consanguinity or
affinity;

(e) the Member of the Court was executor, administrator, guardian or trustee in the case; and

(f) the Member of the Court was an official or is the spouse of an official or former official of a government agency or private entity that is a party to the case, and the Justice or his or her spouse has reviewed or acted on any matter relating to the case.

A Member of the Court may in the exercise of his or her sound discretion, inhibit himself or herself for a just or valid reason other than any of those mentioned above.
The inhibiting Member must state the precise reason for the inhibition.

SEC. 2. Motion to inhibit a Division or a Member of the Court. – A motion for inhibition must be in writing and under oath and shall state the grounds therefor.

A motion for inhibition of a Division or a Member of the Court must be acted upon by the Division or the Member of the Court concerned, as the case may be, within ten working days from receipt thereof except when there is an application for a temporary restraining order, in which case the motion must be acted upon immediately.

No motion for inhibition of a Division or a Member of the Court shall be granted after a decision on the merits or substance of the case has been rendered or issued by any Division, except for a valid or just reason such as an allegation of a graft and corrupt practice or a ground not earlier apparent.

(c) When a Member of the Division, other than the Member-in-Charge of a case, was counsel or partner or member of a law firm that is or was counsel in the case before the Division, such Member shall inhibit himself or herself, unless the Member was no longer a partner or member of the law firm when it was engaged as counsel in the case and the Member votes against the client of such firm. In any event, the mandatory inhibition shall cease after the lapse of ten years from the resignation or
withdrawal of the Member from the law firm, unless the Member personally handled the case when he or she was a partner or member of the law firm.

RULE 9

SEC. 2. Repository of rollos. – All rollos shall be kept in the Rollo Room in the Office of the Chief Justice. Xxx.

All personnel charged with the safekeeping and distribution of rollos shall be bound by strict confidentiality on the identity of the Member-in-Charge or the ponente, as well as on the integrity of the rollos, under pain of administrative sanction and criminal prosecution for any breach thereof.

SEC. 4. Confidentiality of identity of Member-in-Charge or ponente and of Court actions. – Personnel assigned to the Rollo Room and all other Court personnel handling documents relating to the raffling of cases are bound by strict confidentiality on the identity of the Member-in-Charge or ponente and on the actions taken on the case. Xxx.

RULE 10

SEC. 2. Confidentiality of court sessions. – Court sessions are executive in character, with only the Members of the Court present. Court deliberations are confidential and shall not be disclosed to outside parties, except as may be provided herein or as authorized by the Court.

The Chief Justice or the Division Chairperson shall record the action or actions taken in each case for transmittal to the Clerk of Court or Division Clerk of Court after each session. The notes of the Chief Justice and the Division Chairperson, which the Clerk of Court and the Division Clerks of Court must treat with strict confidentiality, shall be the bases of the minutes of the sessions.

RULE 11

SEC. 3. Minutes of proceedings. – The Chief Justice or the Chairperson of the Division shall provide the Clerk of Court or the Division Clerk of Court his or her notes on the actions taken by the Court. The copy of the Agenda containing the handwritten notes of the Chief Justice or Division Chairperson shall serve as the basis for the preparation of the minutes of the session by the Office of the Clerk of Court or of the Division Clerks of Court.

SEC. 4. Preparation of minutes of proceedings. – xxx. Excerpts of the minutes pertaining to a particular case quoted in a letter of the Clerk of Court or the Division Clerk of Court to the parties, and extended resolutions showing the actions of the Court on the cases on agenda shall be released to the parties only after the Chief Justice or the Division Chairperson has approved the minutes in writing.

SEC. 5. Confidentiality of minutes prior to release. – The Offices of the Clerk of Court and of the Division Clerks of Court are bound by strict confidentiality on the action or actions taken by the Court prior to the release of the resolutions embodying the Court action or actions. Xxx.

SEC. 6. Preparation of minute resolutions and unsigned extended resolutions. – A minute resolution quoting an excerpt of the minutes of Court sessions pertinent to a case shall be prepared by the court attorneys in the Office of the Clerk of Court or the Division Clerk of Court and personally reviewed, approved, and initialled by the Clerk of Court or the Division Clerk of Court before submission for final approval by the Chief Justice or the Division Chairperson. An unsigned extended resolution may
be prepared by the Office of the Member-in-Charge or by the Office of the Clerk of Court or Division Clerk of Court, upon instructions of either the Chief Justice or the Division Chairperson, who shall approve the resolution.

The Chief Justice and the Division Chairperson shall order the Clerk of
Court or the Division Clerk of Court to release duly approved minute and
unsigned extended resolutions.

RULE 12

SECTION. 1. Voting requirements. – (a) All decisions and actions in Court en banc cases shall be made upon the concurrence of the majority of the Members of the Court who actually took part in the deliberations on the issue or issues involved and voted on them.

(b) All decisions and actions in Division cases shall be made upon the concurrence of at least three Members of the Division who actually took part in the deliberations on the issue or issues involved and voted on them.

SEC. 2. Tie voting in the Court en banc. – (a) In civil cases, including special proceedings and special civil actions, where the Court en banc is equally divided in opinion or the necessary majority vote cannot be had, the Court shall deliberate on it anew. If after such deliberation still no decision is reached, the Court shall, in an original action filed with it, dismiss the case; in appealed cases, it shall affirm the judgment or order appealed from.

(b) In criminal cases, when the Court en banc is equally divided in opinion or the necessary majority cannot be had, the Court shall deliberate on it anew. If after such deliberation still no decision is reached, the Court shall reverse the judgment of conviction of the lower court and acquit the accused.

(c) When, in an administrative case against any of the Justices of the appellate courts or any of the Judges of the trial courts, the imposable penalty is dismissal and the Court en banc is equally divided in opinion or the majority vote required by the Constitution for dismissal cannot be had, the Court shall deliberate on the case anew. If after such deliberation still no decision is reached, the Court shall dismiss the administrative case, unless a majority vote decides to impose a lesser penalty.

(d) Where the Court en banc is equally divided in opinion or the majority vote required by the Constitution for annulling any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation cannot be had, the Court shall deliberate on the case anew. If after such deliberation still no decision is reached, the Court shall deny the challenge to the constitutionality of the act.

(e) In all matters incidental to the main action where the Court en banc is equally divided in opinion, the relief sought shall be denied.

SEC. 3. Failure to obtain required votes in Division. – Where the necessary majority of three votes is not obtained in a case in a Division, the case shall be elevated to the Court en banc.

SEC. 4. Leaving a vote. – A Member who goes on leave or is unable to attend the voting on any decision, resolution, or matter may leave his or her vote in writing, addressed to the Chief Justice or the Division Chairperson, and the vote shall be counted, provided that he or she took part in the deliberation.

RULE 13

SEC. 3. Actions and decisions, how reached. – The actions and decisions of the Court whether en banc or through a Division, shall be arrived at as follows:

(a) Initial action on the petition or complaint. – After a petition or complaint has been placed on the agenda for the first time, the Member-in-Charge shall, except in urgent cases, submit to the other Members at least three days before the initial deliberation in such case, a summary of facts, the issue or issues involved, and the arguments that the petitioner presents in support of his or her case. The Court shall, in consultation with its Members, decide on what action it will take.

(b) Action on incidents. – The Member-in-Charge shall recommend to the Court the action to be taken on any incident during the pendency of the case.

(c) Decision or Resolution. – When a case is submitted for decision or resolution, the Member-in-Charge shall have the same placed in the agenda of the Court for deliberation. He or she shall submit to the other Members of the Court, at least seven days in advance, a report that shall contain the facts, the issue or issues involved, the arguments of the contending parties, and the laws and jurisprudence that can aid the Court in deciding or resolving the case. In consultation, the Members of the Court shall agree on the conclusion or conclusions in the case, unless the said Member requests a continuance and the Court grants it.

SEC. 5. Ponente or Opinion writer. – Immediately upon arriving at a conclusion regarding the issue or issues in the case, the Court shall assign a Member to write the opinion of the Court. Should the majority vote of the Court on such conclusion be different from or contrary to the conclusion arrived at by the ponente, the writing of the new opinion shall be assigned to a ponente chosen by the majority.

SEC. 6. Manner of adjudication. – The Court shall adjudicate cases as
follows:

(a) By decision, when the Court disposes of the case on its merits and its rulings have significant doctrinal values; resolve novel issues; or impact on the social, political, and economic life of the nation.

The decision shall state clearly and distinctly the facts and the law on which it is based. It shall bear the signatures of the Members who took part in the deliberation.

(b) By signed resolution, when the Court comprehensively resolves the motion for reconsideration filed in the case or when a dissenting opinion is registered against such resolution. The signed resolution shall no longer discuss issues resolved in the decision and need not repeat the facts and the law stated in it. It shall also bear the signatures of the Members who took part in the
deliberation.

(c) By unsigned resolution when the Court disposes of the case on the merits, but its ruling is essentially meaningful only to the parties; has no significant doctrinal value; or is of minimal interest to the law profession, the academe, or the public. The resolution shall state clearly and distinctly the facts and the law on which it is
based.

(d) By minute resolution when the Court (1) dismisses a petition filed under Rule 64 or 65 of the Rules of Court, citing as legal basis the failure of the petition to show that the tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; (2) denies a petition filed under Rule 45 of the said Rules, citing as legal basis the absence of reversible error committed in the challenged decision, resolution, or order of the court below; (3) dismisses an administrative complaint, citing as legal basis failure to show a prima facie case against the respondent; (4) denies a motion for reconsideration, citing as legal basis the absence of a compelling or cogent reason to grant the motion, or the failure to raise any substantial argument to support such motion; and (5) dismisses or denies a petition on technical grounds or deficiencies.

SEC. 7. Dissenting, separate or concurring opinion. – A Member who disagrees with the majority opinion, its conclusions, and the disposition of the case may submit to the Chief Justice or Division Chairperson a dissenting opinion, setting forth the reason or reasons for such dissent. A Member who agrees with the result of the case, but based on different reason or reasons may submit a separate opinion; a concurrence “in the result” should state the reason for the qualified concurrence. A Member who agrees with the main opinion, but opts to express other reasons for concurrence may submit a concurring opinion. The dissenting, separate, or concurring opinion must be submitted within one week from the date the writer of the majority opinion presents the decision for the signature of the Members.

SEC. 8. Attestations and certifications on consultations held. – In cases decided by a Division, the Division Chairperson shall issue an attestation regarding the conduct of consultation among its Members and the assignment of the writing of the decision to a Member after such consultation. In all decided cases, whether by the Court en banc or by a Division, the Chief Justice shall issue a certification regarding the conduct of consultation among the Members of the Court and the assignment of the
writing of the decision to a Member after such consultation.

SEC. 11. Authentication of decisions and resolutions. – All decisions, resolutions, and other Court issuances shall be released to the parties concerned only after these shall have been authenticated by the Clerk of Court or Division Clerk of Court through a bar code at the bottom of each page, which he or she shall personally affix, or by other means to protect the authenticity and integrity of such document. They shall also initial every page of per curiam decisions, minute resolutions, and unsigned extended resolutions.

RULE 15
FINALITY OF DECISION AND RESOLUTIONS

SECTION 1. Finality of decisions and resolutions. – A decision or resolution of the Court may be deemed final after the lapse of fifteen days from receipt by the parties of a copy of the same xxx.

SEC. 2. Motion for reconsideration. – A motion for reconsideration filed within the fifteen-day period from receipt of a copy of the decision or resolution shall stay the execution of such decision or resolution unless, for good reasons shown, the Court directs otherwise.

SEC. 3. Second motion for reconsideration. – The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration “in the higher interest of justice” when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration.

In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc.

Good image vs. transparency and accountability

The Supreme Court's Committee on Ethics and Ethical Standards is composed of the following members of the Court: RENATO C. CORONA, Chief Justice; TERESITA J. LEONARDO-DE CASTRO, Vice-Chairperson; ROBERTO A. ABAD, Member; JOSE PORTUGAL PEREZ, Member; JOSE CATRAL MENDOZA, Member; and Retired JUSTICE JOSE C. VITUG, Observer-Consultant.

Pursuant to Rule 2, Section 13 of The Internal Rules of the Supreme Court creating a Committee on Ethics and Ethical Standards and Memorandum Order No. 35-2010 dated July 27, 2010, Organizing the Committee on Ethics and Ethical Standards (the Ethics Committee), the said committee adopted last month its investigation guidelines:



GUIDELINES FOR INVESTIGATION

1. The Ethics Committee shall take cognizance only of cases or administrative matters referred to it by the Court En Banc.

2. The proceedings before the Ethics Committee shall be confidential in
nature.

3. The Ethics Committee may require the submission of such verified
pleadings, affidavits, or statements, as it may deem necessary.

4. The Ethics Committee may call interested parties or their witnesses to
appear before it in order to provide statements or to answer
clarificatory questions.

5. The applicable requirements of due process shall be observed in the
proceedings of the Ethics Committee.

6. A record of the proceedings of the Ethics Committee shall be kept in
the custody of the Clerk of Court.

7. The Ethics Committee shall, upon completion of its investigation and
after its due deliberation, submit its findings and recommendations to
the Court En Banc for the latter’s final disposition of the case.

8. The Rules of Court shall apply suppletorily as may be deemed
appropriate by the Ethics Committee.


AS I HAVE WRITTEN IN MY PAST BLOGS, THE SUPREME COURT TREATS ALL ADMINISTRATIVE OR DISCIPLINARY CASES OF JUSTICES, JUDGES, LAWYERS, AND COURT PERSONNEL WITH UTMOST SECRECY ("CONFIDENTIALITY"), WHICH MEANS, THE PRESS AND THE CIVIL SOCIETY CANNOT HAVE ACCESS TO THE RECORDS THEREOF WHILE THE INVESTIGATIONS ARE ONGOING, INTENTIONALLY KEEPING THE PUBLIC IN THE DARK TO PRESERVE THE GOOD IMAGE OF THE INSTITUTION, SO TO SPEAK.

BUT WHAT IS MORE IMPORTANT --- IMAGE BUILDING OR TRANSPARENCY AND ACCOUNTABILITY? -- FEAR OF PUBLIC SHAME OR DEMOCRATIC OPENNESS?

YOU ANSWER THE QUESTIONS AS A FREE MAN.

The mystery of the aborted cityhood of 16 towns and the SC

‘Once more, with feeling’ - INQUIRER.net, Philippine News for Filipinos


As soon as I have the available time, I will digest and critique the flip-flopping 2008, 2009, and 2010 decisions of the Supreme Court in re: the mysterious political-law case of the cityhood of 16 big towns in the country, wherein the SC, like an innocent teener, changed its brilliant mind at least twice, notwithstanding the final character of the 2009 decision, thus, unwittingly contributing for a while to the confused state of constitutional law in the country and to the diminished respect of the bench and the bar for the judiciary as a noble and enlightened institution.

Click the link above, which is the detailed and intelligent column of veteran writer and thinker Juan Mercado that appeared in the issue of the Philippine Daily Inquirer today, where, inter alia, he stated, thus:


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In a 7-6 decision, the Court last week whacked 16 cities back into towns. That reversed its December 2009 decision authorizing the 16 to fund city halls. But that had also overturned a November 2008 ruling which declared the 16 cityhood laws unconstitutional.

Got that? No? Hindi ka nag-iisa. Consider this judicial zig-zag one “zag” at a time. Start with the latest “zig”, as the Inquirer reported: “SC: It’s a final no to 16 new cities.”

“With two justices abstaining, the Supreme Court reversed itself anew in the controversial case of 16 cityhood laws. This time, it reinstated its 2008 decision that declared these laws unconstitutional.”

Justice Antonio Carpio is arguably the best Supreme Court chief justice we never had. The Constitution “expressly provides that no city shall be created except in accordance with the criteria established in the Local Government Code,” Carpio writes in this new decision. “Clearly, the cityhood laws contravene the letter and intent of … the Constitution.” Congress in fact “exceeded and abused its law-making power.”

Justices Conchita Carpio-Morales, Arturo Brion, Diosdado Peralta, Martin Villarama Jr. and Jose Mendoza concurred. So did mint-new Justice Maria Lourdes Sereno.

The clobbered 16 are: Baybay, Leyte; Bogo, Naga and Carcar, Cebu; Catbalogan, Samar; Tandag, Surigao del Sur; Lamitan, Basilan; Borongan, Eastern Samar; Tayabas, Quezon; Tabuk, Kalinga; Bayugan, Agusan del Sur; Batac, Ilocos Norte; Mati, Davao Oriental; and Guihulngan, Negros Oriental.

The 16 opted for palusot. They badgered the 14th Congress to exempt them from a task borne by others, i.e., to generate P100 million in local income. President Gloria Macapagal-Arroyo winked at this cushy shortcut via exemptions by letting the 16 bills lapse into law.

The Court shredded a motion for reconsideration by the 16 towns. By a 7-5 vote, in March 2009, the Court slammed the door shut “with finality for lack of merit.” Following entry of judgment, the Court added: “No further pleadings shall be entertained.”

“We are not final because we are infallible” Justice Robert Jackson wrote of the US Supreme Court. “But [we are] infallible only because we are final.”

In the Arroyo Court, alas, “‘final’ does not mean definitive, decisive, conclusive, unchangeable or unappealable,” Sun Star noted. It can also mean “changeable, inconclusive or revocable.”

Thus, the Court made a U-turn on Dec. 21 last year. Prohibited pleadings were entertained. And what lacked merit morphed into the meritorious. Read Justice Presbitero Velasco’s reversal ponencia.

A whiff of scandal surfaced. Inquirer’s editorial, “Dear Justice,” revealed that the counsel for the 16 “cities,” Estelito Mendoza, wrote a “For-Your-Eyes-Only letter” to justices. In January 2009, Mendoza asked that the justices, who didn’t participate in deliberations, be allowed to vote anyway. “Mendoza did not deny the existence of the letters,” the Inquirer noted. “It is clear… that they tried to pull a fast one over us.”

“Unethical,” cried League of Cities vice chair Paulino Salvador Leachon. “This is completely against the law—to write the court seeking a favorable decision,” the Calapan mayor said. “We were not provided with those secret documents.”

Today, the 16 must paint over city hall signs and shed new hire. They must yank their hands out from the Internal Revenue Allotment of 121 other cities.

That “sweat-free” cash spurred the stampede to clone cities. In 1991, there were 60 cities. Many were of dubious viability. The total soared to 131 in June 2007.

Shell cities “strained the national government’s ability to finance these units,” the World Bank and the Asian Development Bank warned as early as 2000. “The small size of LGUs prevent them from generating their own revenues.”

Justice Presbitero Velasco Jr. dissented—as expected. He found the decision “rather startling.”

Returning the Court to constitutional moorings is indeed startling. Now, will the Court start breaking free of the Sisyphus syndrome, “a perpetual circuit of never final litigations”?

In the realm of the dead, Sisyphus was sentenced to roll a huge stone up a steep hill, Greek mythology tells us. There was an eternal handcuff. On reaching the summit, the stone would skid to the bottom.

The Carpio ponencia may have ended that syndrome insofar as the issue is concerned. But what about equally jolting flip-flops, as in the Flight Attendants vs Philippine Airlines case, to cite just one?

The new decision on the 16 towns scuttled plans of congressmen to send 27 more towns hurtling down Exemption Highway to become cities. It reinforces the Court decision to scrub Dinagat Island as the 81st province.

After a plebiscite, Dinagat had been proclaimed and officials appointed, then Gov. Geraldine Ecleo-Villaroman argued. The island’s failure to meet criteria of land area, population and income “was irrelevant.”

This proposition is “fraught with mischief … and creates a dangerous precedent,” snapped Justice Diosdado Peralta. The Court would “not passively accept a fait accompli for an illegal province… The error should not provide the very excuse for perpetuation of such wrong… The Court should interpret and indicate what the law is and should be.”


****


see:

http://opinion.inquirer.net/inquireropinion/columns/view/20100831-289661/Once-more-with-feeling