ANDY J. AGOY, G.R. No.

196358
Petitioner,
Present:

VELASCO, JR., J., Chairperson,
- versus - PERALTA,
ABAD,
MENDOZA, and
PERLAS-BERNABE, JJ.
ARANETA CENTER, INC.,
Respondents. Promulgated:

March 21, 2012

x --------------------------------------------------------------------------------------- x

RESOLUTION

ABAD, J.:


This case reiterates the Courts ruling that the adjudication of a case
by minute resolution is an exercise of judicial discretion and constitutes
sound and valid judicial practice.

The Facts and the Case

On June 15, 2011 the Court denied petitioner Jandy J. Agoys petition
for review through a minute resolution that reads:

G.R. No. 196358 (Jandy J. Agoy vs. Araneta Center,
Inc.).- The Court resolves to GRANT petitioners motion for
extension of thirty (30) days from the expiration of the
reglementary period within which to file a petition for review on
certiorari.

The court further resolves to DENY the petition for review
on certiorari assailing the Decision dated 19 October 2010 and
Resolution dated 29 March 2011 of the Court of Appeals (CA),
Manila, in CA-G.R. SP No. 108234 for failure to show that the
CA committed reversible error when it affirmed the dismissal of
petitioner Jandy J. Agoy. Petitioners repeated delays in remitting
the excess cash advances and admission that he spent them for
other purposes constitute serious misconduct and dishonesty
which rendered him unworthy of the trust and confidence reposed
in him by respondent Araneta Center, Inc.

Apparently, however, Agoy doubted the authenticity of the copy of
the above minute resolution that he received through counsel since he
promptly filed a motion to rescind the same and to have his case resolved on
its merits via a regular resolution or decision signed by the Justices who took
part in the deliberation. In a related development, someone claiming to be
Agoys attorney-in-fact requested an investigation of the issuance of the
resolution of June 15, 2011.

On September 21, 2011 the Court denied Agoys motion to rescind
the subject minute resolution and confirmed the authenticity of the copy of
the June 15, 2011 resolution. It also treated his motion to rescind as a
motion for reconsideration and denied the same with finality.

Upon receipt of the Courts September 21, 2011 resolution, Agoy
filed a motion to rescind the same or have his case resolved by the Court En
Banc pursuant to Section 13 in relation to Sec. 4(3), Article VIII of the 1987
Constitution. Agoy reiterated his view that the Court cannot decide his
petition by a minute resolution. He thus prayed that it rescind its June 15
and September 21, 2011 resolutions, determine whether it was proper for the
Court to resolve his petition through a minute resolution, and submit the case
to the Court en banc for proper disposition through a signed resolution or
decision.



Questions Presented

At the heart of petitioners motions are the following questions:

1. Whether or not the copies of the minute resolutions dated June
15, 2011 and September 21, 2011 that Agoy received are authentic; and

2. Whether or not it was proper for the Court to deny his petition
through a minute resolution.

The Courts Rulings

One. The notices of the minute resolutions of June 15 and September
21, 2011 sent to Agoy, bearing the signatures of Assistant Clerk of Court
Teresita Aquino Tuazon and Deputy Division Clerk of Court Wilfredo V.
Lapitan, both printed on pink paper and duly received by counsel for
petitioner as evidenced by the registry return cards, are authentic and
original copies of the resolutions. The Court has given Tuazon and Lapitan
the authority to inform the parties under their respective signatures of the
Courts actions on the incidents in the cases.

Minute resolutions are issued for the prompt dispatch of the actions of
the Court. While they are the results of the deliberations by the Justices of
the Court, they are promulgated by the Clerk of Court or his assistants
whose duty is to inform the parties of the action taken on their cases by
quoting verbatim the resolutions adopted by the Court.
[1]
Neither the Clerk
of Court nor his assistants take part in the deliberations of the case. They
merely transmit the Courts action in the form prescribed by its Internal
Rules:

Sec. 7. Form of notice of a minute resolution.A notice of
minute resolution shall be embodied in a letter of the Clerk of
Court or the Division Clerk of Court notifying the parties of the
action or actions taken in their case. In the absence of or
whenever so deputized by the Clerk of Court or the Division
Clerk of Court, the Assistant Clerk of Court or Assistant Division
Clerk of Court may likewise sign the letter which shall be in the
following form:

(SUPREME COURT Seal)

REPUBLIC OF THE PHILIPPINES
SUPREME COURT
Manila

EN BANC/____ DIVISION

NOTICE

Sirs/Mesdames:

Please take notice that the Court en banc/___ Division
issued a Resolution dated _____, which reads as follows:

G.R./UDK/A.M./A.C. No. ____ (TITLE).(QUOTE
RESOLUTION)

Very truly yours,

(Sgd.)
CLERK OF COURT/Division Clerk of
Court

As the Court explained in Borromeo v. Court of Appeals,
[2]
no law or
rule requires its members to sign minute resolutions that deny due course to
actions filed before it or the Chief Justice to enter his certification on the
same. The notices quote the Courts actual resolutions denying due course
to the subject actions and these already state the required legal basis for such
denial. To require the Justices to sign all its resolutions respecting its action
on new cases would be unreasonable and unnecessary.

Based on last years figures, the Court docketed a total of 5,864 new
cases, judicial and administrative. The United States Supreme Court
probably receives lesser new cases since it does not have administrative
supervision of all courts. Yet, it gives due course to and decides only about
100 cases per year. Agoys demand that this Court give due course to and
decide all cases filed with it on the merits, including his case, is simply
unthinkable and shows a lack of discernment of reality.

Two. While the Constitution requires every court to state in its
decision clearly and distinctly the fact and the law on which it is based, the
Constitution requires the court, in denying due course to a petition for
review, merely to state the legal basis for such denial.

Sec. 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the
law on which it is based. No petition for review or motion for
reconsideration of a decision of the court shall be refused due
course or denied without stating the legal basis
therefor.
[3]
(Emphasis supplied)

With the promulgation of its Internal Rules, the Court itself has
defined the instances when cases are to be adjudicated by decision, signed
resolution, unsigned resolution or minute resolution.
[4]
Among those
instances when a minute resolution shall issue is when the Court denies a
petition filed under Rule 45 of the [Rules of Court], citing as legal basis the
absence of reversible error committed in the challenged decision, resolution,
or order of the court below.
[5]
The minute resolutions in this case complied
with this requirement.

The Court has repeatedly said that minute resolutions dismissing the
actions filed before it constitute actual adjudications on the merits.
[6]
They
are the result of thorough deliberation among the members of the
Court.
[7]
When the Court does not find any reversible error in the decision
of the CA and denies the petition, there is no need for the Court to fully
explain its denial, since it already means that it agrees with and adopts the
findings and conclusions of the CA. The decision sought to be reviewed and
set aside is correct.
[8]
It would be an exercise in redundancy for the Court to
reproduce or restate in the minute resolution denying the petition the
conclusions that the CA reached.

Agoy questions the Courts act of treating his motion to rescind as a
motion for reconsideration, arguing that it had no basis for doing so. But the
Court was justified in its action since his motion to rescind asked the Court
to review the merits of his case again.

WHEREFORE, the Court DENIES petitioner Jandy J. Agoys
motion to rescind dated December 21, 2011 and the Motion for Clarification
and to Resolve Pending Incidents dated January 31, 2012 for lack of merit.

The Court shall not entertain further pleadings or motions in this
case. Let entry of judgment be issued.

SO ORDERED.


































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DISSENTING

OPINION
SANDOVAL-GUTIERREZ, J.:
It is after deep introspection that I am constrained to dissent from
the denial by the majority of the motions for reconsideration filed by
respondents PEA and AMARI.
Chief Justice Charles Evans Hughes of the United States Supreme
Court stated that a dissent is of value because it is an appeal to the
brooding spirit of the law, to the intelligence of a future day, when a later
decision may possibly correct the error into which the dissenting judge
believes the court to have been betrayed.[1]
While I joined in the initial grant of the petition, I realized, however,
that the tenor of our interpretation of the Constitutional prohibition on the
acquisition of reclaimed lands by private corporations is so absolute and
circumscribed as to defeat the basic objectives of its provisions on The
National Economy and Patrimony.[2]
The Constitution is a flexible and dynamic document. It must be
interpreted to meet its objectives under the complex necessities of the
changing times. Provisions intended to promote social and economic
goals are capable of varying interpretations. My view happens to differ
from that of the majority. I am confident, however, that the demands of
the nations economy and the needs of the majority of our people will
bring the majority Decision and this Dissenting Opinion to a common
understanding. Always, the goals of the Constitution must be upheld,
not defeated nor diminished.
Infrastructure building is a function of the government and ideally
should be financed exclusively by public funds. However, present
circumstances show that this cannot be done. Thus, private
corporations are encouraged to invest in income generating national
construction ventures.
Investments on the scale of reclamation projects entail huge
amounts of money. It is a reality that only private corporations can raise
such amounts. In the process, they assist this country in its economic
development. Consequently, our government should not take arbitrary
action against these corporate developers. Obviously, the courts play a
key role in all disputes arising in this area of national development.
This is the background behind my second hard look at the issues
and my resulting determination to dissent.
The basic issue before us is whether a private corporation, such as
respondent AMARI, can acquire reclaimed lands.
The Decision being challenged invokes the Regalian doctrine that
the State owns all lands and waters of the public domain. The doctrine
is the foundation of the principle of land ownership that all lands that
have not been acquired by purchase or grant from the Government
belong to the public domain.[3]Property of public dominion is that devoted
to public use such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads and that of a
similar character.[4] Those which belong to the State, not devoted to
public use, and are intended for some public service or for the
development of the national wealth, are also classified as property of
public dominion.[5]All other property of the State which is not of public
dominion is patrimonial.[6] Also, property of public dominion, when no
longer intended for public use or public service, shall form part of the
patrimonial property of the State.[7]
In our Decision sought to be reconsidered,[8] we held that the
following laws, among others, are applicable to the particular
reclamation project involved in this case: the Spanish Law of Waters of
1866, the Civil Code of 1889, Act No. 1654 enacted by the Philippine
Commission in 1907, Act No. 2874 (the Public Land Act of 1919), and
Commonwealth Act No. 141 of the Philippine National Assembly, also
known as the Public Land Act of 1936. Certain dictums are
emphasized. Reclaimed lands of the government may be leased but
not sold to private corporations and private individuals. The
government retains title to lands it reclaims. Only lands which have
been officially delimited or classified as alienable shall be declared open
to disposition or concession.
Applying these laws and the Constitution, we then concluded that
the submerged areas of Manila Bay are inalienable natural resources of
the public domain, outside the commerce of man. They have to be
classified by law as alienable or disposable agricultural lands of the
public domain and have to be declared open to disposition. However,
there can be no classification and declaration of their alienable or
disposable nature until after PEA has reclaimed these submerged
areas. Even after the submerged areas have been reclaimed from the
sea and classified as alienable or disposable, private corporations such
as respondent AMARI, are disqualified from acquiring the reclaimed
land in view of Section 3, Article XII of the Constitution, quoted as
follows:
Lands of the Public domain are classified into agricultural, forest or timbre,
mineral lands, and national parks. Agricultural lands of the public domain may
be further classified by law according to the uses to which they may be
devoted. Alienable lands of the public domain shall be limited to agricultural
lands. Private corporations or associations may not hold such alienable
lands of the public domain except by lease, for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and not to
exceed one thousand hectares in area. Citizens of thePhilippines may lease not
more than five hundred hectares, or acquire not more than twelve hectares
thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and
development, and subject to the requirements of agrarian reform, the Congress
shall determine, by law, the size of lands of the public domain which may be
acquired, developed, held, or leased and the conditions therefor.
I dissent from the foregoing conclusions which are based on general
laws mainly of ancient vintage. Reclaimed lands, especially those under
the Manila-Cavite Coastal Roadand Reclamation Project (MCCRRP),
are governed by PD 1084[9] and PD 1085[10] enacted in 1976 and 1977,
respectively, or more than half a century after the enactment of the
Public Lands Acts of 1919 and 1936.
PD 1084 and PD 1085 provide:
PD 1084-
Section 4. Purposes. - The Authority is hereby created for the following
purposes:
a. To reclaim land, including foreshore and submerged
areas, by dredging, filling or other means, or to acquire
reclaimed land;
b. To develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of
lands, buildings, estates and other forms of real property,
owned, managed, controlled and/or operated by the
government;
c. To provide for, operate or administer such services as may
be necessary for the efficient, economical and beneficial
utilization of the above properties. (Emphasis ours)
PD 1085-
The land reclaimed in the foreshore and offshore area of Manila Bay pursuant
to the contract for the reclamation and construction of the Manila-
Cavite Coastal Road Project between the Republic of the Philippines and the
Construction and Development Corporation of the Philippines dated November
20, 1973 and/or any other contract or reclamation covering the same area is
herebytransferred, conveyed and assigned to the ownership and
administration of the Public Estates Authority established pursuant to P.D.
No. 1084; Provided, however, that the rights and interest of the Construction
and Development Corporation of the Philippines pursuant to the aforesaid
contract shall be recognized and respected.
xxx xxx xxx
Special land patent/patents shall be issued by the Secretary of Natural
Resources in favor of the Public Estates Authority without prejudice to
the subsequent transfer to the contractor or his assignees of such portion
or portions of the land reclaimed or to be reclaimed as provided for in the
above-mentioned contract. On the basis of such patents, the Land Registration
Commission shall issue the corresponding certificates of title. (Emphasis
Ours)
Pursuant to the above provisions, PEA is mandated inter alia to
reclaim land, including foreshore and submerged areas, or to acquire
reclaimed land. Likewise, PEA has the power to sell any and all kinds of
lands and other forms of real property owned and managed by the
government. Significantly, PEA is authorized to transfer to the
contractor or its assignees portion or portions of the land
reclaimed or to be reclaimed.
It is a fundamental rule that if two or more laws govern the same
subject, every effort to reconcile and harmonize them must be
taken. Interpretare et concordare legibus estoptimus interpretandi. Statu
tes must be so construed and harmonized with other statutes as to form
a uniform system of jurisprudence.[11] However, if several laws cannot be
harmonized, the earlier statute must yield to the later enactment. The
later law is the latest expression of the legislative will.[12] Therefore, it is
PD 1084 and PD 1085 which apply to the issues in this case.
Moreover, the laws cited in our Decision are general laws which
apply equally to all the individuals or entities embraced by their
provisions.[13] The provisions refer to public lands in general.
Upon the other hand, PD 1084 and PD 1085 are special laws which
relate to particular economic activities, specific kinds of land and a
particular group of persons.[14] Their coverage is specific and
limited. More specifically, these special laws apply to land
reclaimed from Manila Bay by private corporations.
If harmonization and giving effect to the provisions of both sets
of laws is not possible, the special law should be made to prevail
over the general law, as it evinces the legislative intent more
clearly. The special law is a specific enactment of the legislature which
constitutes an exception to the general statute.[15]
Our Decision cites the constitutional provision banning private
corporations from acquiring any kind of alienable land of the public
domain.[16]
Under the Constitution, lands of the public domain are classified into
agricultural, forest or timber, mineral lands, and natural parks.[17] Land
reclaimed from the sea cannotfall under any of the last three
categories because it is neither forest or timber, mineral, nor park
land. It is, therefore, agricultural land.[18] Agricultural land of the
public domain may be alienated.[19] However, the Constitution states
that private corporations may not hold such alienable land except by
lease. It follows that AMARI, being a private corporation, cannot hold
any reclaimed area. But let it be made clear that PD 1084 transfers the
public agricultural land formed by reclamation to the ownership and
administration of PEA, a government owned corporation. The transfer
is not to AMARI, a private corporation, hence, the constitutional
prohibition does not apply. Corollarily, under PD 1085, PEA is
empowered to subsequently transfer to the contractor portion or
portions of the land reclaimed or to be reclaimed.
Does the Constitution restrain PEA from effecting such transfer to a
private corporation? Under Article 421 of the Civil Code, all property of
the State which is not of public dominion is patrimonial. PEA does not
exercise sovereign functions of government. It handles business
activities for the government. Thus, the property in its hands, not
being of public dominion, is held in a patrimonial capacity. PEA,
therefore, may sell this property to private corporations without violating
the Constitution. It is relevant to state that there is no constitutional
obstacle to the sale of real estate held by government owned
corporations, like the National Development Corporation, the Philippine
National Railways, the National Power Corporation, etc. to private
corporations. Similarly, why should PEA, being a government owned
corporation, be prohibited to sell its reclaimed lands to private
corporations?
I take exception to the view of the majority that after the enactment
of the 1935 Constitution, Section 58 of Act 2874 continues to be
applicable up to the present and that the long established state policy is
to retain for the government title and ownership of government
reclaimed land. This simply is an inaccurate statement of current
government policy. When a government decides to reclaim the land,
such as the area comprising and surrounding the Cultural Center
Complex and other parts of Manila Bay, it reserves title only to the
roads, bridges, and spaces allotted for government buildings. The rest
is designed, as early as the drawing board stage, for sale and use as
commercial, industrial, entertainment or services-oriented ventures. The
idea of selling lots and earning money for the government is the motive
why the reclamation was planned and implemented in the first place.
May I point out that there are other planned or on-going reclamation
projects in the Philippines. The majority opinion does not only strike
down the Joint Venture Agreement (JVA) between AMARI and PEA but
will also adversely affect or nullify all other reclamation agreements in
the country. I doubt if government financial institutions, like the
Development Bank of the Philippines, the Government Service
Insurance System, the Social Security System or other agencies, would
risk a major portion of their funds in a problem-filled and highly
speculative venture, like reclamation of land still submerged under the
sea. Likewise, there certainly are no private individuals, like business
tycoons and similar entrepreneurs, who would undertake a major
reclamation project without using the corporate device to raise and
disburse funds and to recover the amounts expended with a certain
margin of profits. And why should corporations part with their money if
there is no assurance of payment, such as a share in the land reclaimed
or to be reclaimed? It would be most unfair and a violation of procedural
and substantive rights[20] to encourage investors, both Filipino and
foreign, to form corporations, build infrastructures, spend money and
efforts only to be told that the invitation to invest is unconstitutional or
illegal with absolutely no indication of how they could be compensated
for their work.
It has to be stressed that the petition does not actually assail the
validity of the JVA between PEA and AMARI. The petition mainly seeks
to compel PEA to disclose all facts on the then on-going negotiations
with respondent AMARI with respect to the reclamation of portions
of Manila Bay. Petitioner relies on the Constitutional provision that the
right of the people to information on matters of public concern shall be
recognized and that access to papers pertaining to official transactions
shall be afforded the citizen.[21] I believe that PEA does not have to reveal
what was going on from the very start and during the negotiations with a
private party. As long as the parties have the legal capacity to enter into
a valid contract over an appropriate subject matter, they do not have to
make public, especially to competitors, the initial bargaining, the give-
and-take arguments, the mutual concessions, the moving from one
position to another, and other preliminary steps leading to the drafting
and execution of the contract. As in negotiations leading to a treaty or
international agreement, whether sovereign or commercial in nature, a
certain amount of secrecy is not only permissible but compelling.
At any rate, recent developments appear to have mooted this issue,
and anything in the Decision which apparently approves publicity during
on-going negotiations without pinpointing the stage where the right to
information appears is obiter. The motions for reconsideration all
treat the JVA as a done thing, something already concrete, if not
finalized.
Indeed, it is hypothetical to identify exactly when the right to
information begins and what matters may be disclosed during
negotiations for the reclamation of land from the sea.
Unfortunately for private respondent, its name, AMARI, happens to
retain lingering unpleasant connotations. The phrase grandmother of
all scams, arising from the Senate investigation of the original contract,
has not been completely erased from the public mind.
However, any suspicion of anything corrupt or improper during the
initial negotiations which led to the award of the reclamation to AMARI
are completely irrelevant to this petition. It bears stressing that the
Decision and this Dissenting Opinion center exclusively on questions of
constitutionality and legality earlier discussed.
To recapitulate, it is my opinion that there is nothing in the
Constitution or applicable statutes which impedes the exercise by PEA
of its right to sell or otherwise dispose of its reclaimed land to private
corporations, especially where, as here, the purpose is to compensate
respondent AMARI, the corporate developer, for its expenses incurred
in reclaiming the subject areas. Pursuant to PD 1084 and PD 1085,
PEA can transfer to the contractor, such as AMARI, such portion
or portions of the land reclaimed or to be reclaimed.
WHEREFORE, I vote to GRANT the motions for reconsideration and
to DISMISS the petition for lack of merit.


























FRANCISCO SILVA G.R. No. 160174
as NEA Administrator,
Petitioner, Present:

QUISUMBING, J.,

C
hairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO,
JR., JJ.

LEOVIGILDO T. MATIONG, Promulgated:
Respondent.
August 28, 2006

x-----------------------------------------------------------------------------------------x


D E C I S I O N


CARPIO, J.:


The Case

Before the Court is a petition for review
[1]
assailing the 19 June
2003 Decision
[2]
and 26 September 2003 Resolution
[3]
of the Court of
Appeals in CA-G.R. SP No. 70399. The Court of Appeals granted the
petition for certiorari, prohibition and mandamus filed
by Leovigildo T. Mationg (respondent) and nullified the orders of then
Administrator Francisco Silva (petitioner) of the National Electrification
Administration (NEA). The Court of Appeals also denied petitioners
Motion for Reconsideration.

The Facts

Aklan Electric Cooperative, Inc. (AKELCO) is an electric cooperative
under the supervision and control of the NEA
[4]
pursuant to Presidential
Decree No. 269 (PD 269),
[5]
as amended by Presidential Decree No. 1645
(PD 1645),
[6]
and to the Contract of Loan between NEA and AKELCO dated
23 January 1996.
[7]
Respondent was the general manager of AKELCO.

The present controversy arose when the National Power Corporation
(NAPOCOR) cut-off the electricity in Aklan from 18-20 March 2002
for AKELCOs failure to pay its approximately P25 million
obligation.
[8]
Edita Bueno (Bueno), NEA Officer-in-Charge and Deputy
Administrator for Cooperatives Development and Special Projects, formed a
team to take-over the management and operations of AKELCO.
[9]
On 20
March 2002, NAPOCOR restored the power supply to the area
upon learning of the NEA take-over.
[10]
However, respondent remained the
general manager of AKELCO despite the NEA take-over.
[11]



On the same day, the AKELCO Board of Directors (AKELCO-BOD)
received a complaint from the different municipal mayors seeking the
dismissal of respondent as AKELCO general manager for gross
incompetence and mismanagement.
[12]
As early as 25 March 1998, the
AKELCO-BOD had already received a letter from the consumer-members
of AKELCO expressing their dissatisfaction and frustration over the
inefficiency of AKELCOs management.
[13]
An open letter dated 20 March
2002 addressed to President Gloria Macapagal-Arroyo requesting for the
immediate termination of respondent was published in numerous
newspapers.
[14]
The inefficiency of AKELCOs operation also became the
subject of the privilege speech delivered by Congressman
Gabrielle Calizo on 4 March 2002.
[15]


The AKELCO-BOD issued Resolution No. 18 placing respondent
under indefinite preventive suspension to prevent him from exerting undue
influence while the audit and investigation were being conducted by the
NEA management team.

On 21 March 2002, Bueno wrote a letter to the AKELCO-BOD
approving Board Resolution No. 18, however, reducing the preventive
suspension of respondent to 30 days.

On 22 March 2002, Bueno issued a Memorandum
[16]
stating that the
NEA received another AKELCO-BOD resolution, referred to as Board
Resolution No. 17, disowning and recalling Board Resolution No. 18 and
expressing full trust and confidence in respondents management.

Based on these conflicting board resolutions, AKELCO obviously had
an intra-corporate dispute involving two factions of Board of Directors: one,
headed byChito Peralta (the Peralta faction), and the other headed
by Melanio Rentillo (the Rentillo faction). Due to the complexity of the
issue, Bueno revoked the approval of Board Resolution No. 18 and
submitted the determination of the validity of the two board resolutions to
the NEA Board of Administrators (NEA-BOA). Further,Bueno directed the
opposing parties to submit their respective position papers on the matter and
enjoined them to cooperate with the NEA management team. The two
factions submitted their respective position papers.

On 4 April 2002, Bueno issued Office Order No. 2002-058
[17]
creating
a Committee
[18]
to evaluate the position papers of the two factions of the
AKELCO-BOD. The Committee recommended the approval of Board
Resolution No. 18 passed by the Peralta faction and the disapproval of Board
Resolution No. 17 passed by the Rentillo faction.

On 11 April 2002, petitioner issued a Resolution
[19]
approving Board
Resolution No. 18 and disapproving Board Resolution No. 17. Petitioner
reiteratedBuenos letter of 21 March 2002 placing respondent under a 30-
day preventive suspension.

On the same day, the NEA-BOA issued Resolution No.
22
[20]
authorizing petitioner to remove respondent as general manager of
AKELCO subject to the confirmation of the NEA-BOA, allegedly pursuant
to Section 5(e) of PD 269 as amended by PD 1645 (PD 269 as amended).

On 19 April 2002, petitioner issued an Order for AKELCOs non-
payment of its loans and non-compliance with NEA policies, orders and
guidelines. The pertinent portions of this order read:

x x x x

3. The AKELCO Board is directed to pursue action
per approved Board Resolution 18, as qualifiedly approved by this
office, importantly, its resolution placing
Atty.Leovigildo T. Mationg under preventive suspension for thirty
(30) days and that the investigation be terminated within the same
period.

4. Pursuant to Section 5(a)(6), Chapter II of P.D. 269,
as amended by Section 3 of P.D. 1645, Mr. Erico A. Bucoy is
hereby designated to manage AKELCO in the meantime that its
General Manager is under suspension.

x x x x
[21]
(Emphasis supplied)


On 2 May 2002, respondent filed a petition
[22]
with the Court of
Appeals to enjoin petitioner from enforcing the 11 April 2002 Resolution
and the 19 April 2002Order.

During the pendency of the petition, the NEA-approved AKELCO
BOD, along with the NEA-appointed Executive
Officer Erico Bucoy (Bucoy), issued Board Resolution No.
32
[23]
constituting itself as an investigating committee to look into the
complaints against respondent. In an undated letter, Bucoy informed
respondent of the investigation of the charges against him and asked him to
show why he should not be terminated as general manager of AKELCO.



On 8 May 2002, the NEA-BOA issued Board Resolution No.
26
[24]
confirming petitioners Order dated 19 April 2002 which provided,
among others, the preventive suspension of respondent for 30 days.

On 11 May 2002, the AKELCO-BOD terminated its investigation and
issued Resolution No. 2, Series of 2002-05-11,
[25]
finding respondent guilty
of willful breach of trust and confidence to the consumer-members and gross
and habitual neglect of his duties as general manager of AKELCO. The
AKELCO-BOD terminated respondents services effective on the same day.

On 17 May 2002, petitioner issued an Order
[26]
approving AKELCO-
BOD Resolution No. 2, Series of 2002-05-11 terminating respondent as
AKELCO general manager for willful breach of trust and confidence.

On 30 May 2002, respondent filed a Manifestation and Supplemental
Motion
[27]
with the Court of Appeals assailing his removal as AKELCO
general manager and praying for the nullification of petitioners issuances
and for reinstatement as AKELCO general manager.

Meanwhile, the NEA-BOA issued Resolution No. 37
[28]
on 5 June
2002 confirming petitioners Order dated 17 May 2002 approving the
removal of respondent.

In its Decision of 19 June 2003,
[29]
the Court of Appeals granted
respondents petition and nullified the assailed Resolution and Orders.
The dispositive portion of the decision reads:

WHEREFORE, the instant petition is hereby GRANTED. The
Resolution dated 11 April 2002, Order dated 19 April 2002 and
Order dated 17 May 2002 are hereby NULLIFIED AND SET
ASIDE. Respondent is hereby ORDERED to reinstate petitioner
as general manager of AKELCO without prejudice however to the
conduct of proper proceedings for his suspension and termination
as stated herein, if warranted.

SO ORDERED.
[30]



The Court of Appeals denied petitioners motion for reconsideration in
its Resolution of 26 September 2003.
[31]


Hence, this petition.


The Ruling of the Court of Appeals


In nullifying petitioners issuances and reinstating respondent as
general manager of AKELCO, the Court of Appeals ruled as follows:

At the outset, We shall first tackle respondents assertion
that the instant case does not fall within our jurisdiction. In
essence, respondent argues that the foregoing acts establish a labor
dispute cognizable only by the Labor Arbiter. We disagree.

x x x What is at issue is whether or not respondent is
vested with the authority to issue the assailed resolutions and
orders.

x x x x

Furthermore, under Section 5 of the same law which
amended Section 10 of PD No. 269, if the electric cooperative
concerned or other similar entity fails after due notice to comply
with NEA orders, rules and regulations and/or decisions, or with
any of the terms of the Loan Agreement, the NEA Board of
Administrators may take preventive and/or disciplinary measures
including suspension and/or removal and replacement of any or
all of the members of the Board of Directors, officers or
employees of the Cooperative, other borrower institutions or
supervised or controlled entities as the NEA Board of
Administrators may deem fit and necessary and to take any other
remedial measures as the law or the Loan Agreement may
provide.
x x x It is the Board of Administrators and not the
Administrator himself who is empowered to suspend and/or
terminate the incumbent general manager and appoint an
acting general manager of an erring electric cooperative. The
Administrator cannot arrogate unto himself a power that is not
given to him by the statute. It is a well-established rule of law
that a public official must trace his powers from the statute that
created the office or position. The power, however, need not be
express but may be implied from the wording of the law. In the
absence of such conferment, the public official cannot validly
exercise the power. If executed and properly challenged, the
unauthorized exercise of such power may be set aside. x x x

x x x x

x x x whether or not the Board of Administrators may
validly delegate the foregoing powers to the NEA
Administrator. We hold that it cannot. To sanction this
delegation would violate the
maxim: potestas delegata non delegari potest (what has been
delegated cannot be delegated).

x x x x
[32]
(Emphasis supplied)



In its Resolution dated 26 September 2003 denying petitioners motion
for reconsideration,
[33]
the Court of Appeals passed upon the
allegedly undiscussedissues petitioner raised. The Court of Appeals
reiterated that it has jurisdiction over the case. The Court of Appeals also
held that this case is an exception to the principle of exhaustion of
administrative remedies since petitioners issuances were patently illegal
and this case involved purely legal issues. The Court of Appeals rejected
petitioners allegation of respondents forum-shopping. Despite petitioners
opposition, the Court of Appeals allowed respondents Manifestation and
Supplemental Motion to resolve this case on the merits instead of dismissing
it on pure technicality.





The Issues


While petitioner raised numerous issues in his 121-page
Memorandum,
[34]
the crucial issue in this case is whether petitioners
approval of the AKELCO-BODsresolutions suspending and terminating
respondent as AKELCO general manger is valid. Inextricably related to this
issue is the question of whether the NEA-BOAsauthorization for and
confirmation of respondents suspension and removal as AKELCO general
manager by petitioner as then NEA Administrator are legal.


The Ruling of the Court


The petition is meritorious.



Procedural Matters


At the outset, the Court declares that its resolution of the present
case is confined to determining the validity of petitioners Resolution and
Orders insofar as the preventive suspension and dismissal of respondent are
concerned. The Court will refrain from discussing other matters raised by
petitioner immaterial to the resolution of this main issue, such as the transfer
of the AKELCO office to Lezo, Aklan, which is allegedly pending before
the Court of Appeals,
[35]
the management take-over of AKELCO, and the
composition of the AKELCO-BOD. The Court is not a trier of facts. These
incidental matters which definitely require an examination of facts and
evidence are not proper in a petition for review which should only raise
questions of law.
[36]


Concerning the procedural issues raised by petitioner, suffice it to
state that substantial justice and the public interest involved in this case far
outweigh any procedural lapses committed by respondent. Justice dictates
that this Court resolve the instant controversy on the merits than dismiss it
on the grounds of forum-shopping, non-amendment of the petition before the
Court of Appeals, collateral attack of various issuances of the NEA-BOA,
exclusion of indispensable parties, and non-exhaustion of administrative
remedies.

Moreover, the Court finds no reversible error in the Court of Appeals
findings on the issues of jurisdiction, forum-shopping, exhaustion of
administrative remedies, and amendment of the petition for certiorari. On
the issue of jurisdiction, there is evidently no employment relationship
between the parties. Hence, the instant controversy does not involve a labor
dispute requiring the expertise of the National Labor Relations
Commission. This case involves the exercise of the enforcement power of
the NEA under Section 10 of PD 269 as amended.
[37]

On the issue of exhaustion of administrative remedies, the Court holds
that the main issues for resolution in this case are purely legal. Thus, the
instant case falls within the recognized exceptions to the rule of exhaustion
of administrative remedies.
[38]


On the issue of forum-shopping, the Court sustains the Court of
Appeals ruling that appeal is not a speedy and adequate remedy for
respondent. Respondents appeal to the NEA-BOA appears to be a futile
exercise because the assailed issuances were subsequently confirmed by the
NEA-BOA. Hence, respondent properly filed a petition for certiorari with
the Court of Appeals challenging the authority of petitioner to suspend and
remove him.

On the issues of collateral attack of various NEA-BOA issuances and
exclusion of indispensable parties, the Court notes that petitioner raised them
for the first time on appeal. Settled is the rule that issues not raised in the
court a quo cannot be raised for the first time on appeal because to do so
would be offensive to the basic rules of justice and fair play.
[39]


Enforcement Power of the NEA

The NEA, as a public corporation, acts through its Board of
Administrators, composed of a Chairman and four members, one of whom
is the Administrator as ex-officio member.
[40]
The NEA exercises supervision
and control
[41]
over electric cooperatives organized and operating under the
mandate of PD 269, as amended. The extent of government control over
electric cooperatives covered by PD 269, as amended, is largely a
function of the NEA as a primary source of funds of these electric
cooperatives.
[42]




In exercising its power of supervision and control over electric
cooperatives, the NEA, through its Board of Administrators, can issue
orders, rules and regulations, and motu proprio or upon petition of third
parties, can conduct investigations in all matters affecting electric
cooperatives pursuant to Section 10 of PD 269, as amended. Further, the
NEA-BOA may avail of the remedial measures enumerated in Section 10 of
PD 269, as amended, in case of non-compliance by the electric cooperative
concerned with NEA orders, rules and regulations, and decisions, or with
any of the terms of the Loan Agreement. One of these remedial measures,
Section 10(e) of PD 269, as amended, provides for the suspension or
removal of members of the Board of Directors, officers or employees of the
defiant electric cooperative as the NEA-BOA may deem fit and necessary,
thus:

Section 10. Enforcement Powers and Remedies. In the exercise
of its power of supervision and control over electric cooperatives
and other borrower, supervised or controlled entities, the NEA is
empowered to issue orders, rules and regulations
and motu proprio or upon petition of third parties, to conduct
investigations, referenda and other similar actions in all matters
affecting said electric cooperatives and other borrower, or
supervised or controlled entities.

If the electric cooperative concerned or other similar entity
fails after due notice to comply with NEA orders, rules and
regulations and/or decisions, or with any of the terms of the Loan
Agreement, the NEA Board of Administrators may avail of any or
all of the following remedies:

x x x x

(e) Take preventive and/or disciplinary measures
including suspension and/or removal and replacement of any
or all of the members of the Board of Directors, officers or
employees of the Cooperative, other borrower institutions or
supervised or controlled entities as the NEA Board of
Administrators may deem fit and necessary and to take any
other remedial measures as the law or the Loan Agreement
may provide.


The question is whether the NEA-BOA can delegate to the NEA
Administrator its power under Section 10(e) of PD 269, as amended, to take
preventive and disciplinary measures against electric cooperative officers.

Petitioner maintains that such power of the NEA-BOA can be
lawfully delegated to the NEA Administrator by virtue of Section 5(b)(7) of
PD 269, as amended. Section 5(b)(7) refers to the NEA Administrators
other powers and duties which may be vested in him by the NEA-BOA.

On the other hand, respondent contends that the power of the NEA-
BOA under Section 10(e) of PD 269, as amended, is reserved solely to the
NEA-BOA. In other words, the power of the NEA-BOA under Section
10(e) of PD 269, as amended, cannot be validly delegated to the NEA
Administrator.

Under Section 10 of PD 269, as amended, the power to impose
preventive and disciplinary measures on erring electric cooperative officers
can be exercised by the NEA-BOA as a collegial body to whom all the
powers of the NEA had been vested in.
[43]
Section 10(e) of PD 269, as
amended, categorically states that the NEA-BOA may take preventive or
disciplinary measures against an erring electric cooperative officer as the
NEA-BOA may deem fit and necessary.

Contrary to the ruling of the Court of Appeals, there was no undue
delegation of power by the NEA-BOA to the NEA
Administrator. Resolution No. 22 provides:

WHEREAS, in Section 5(e) of P.D. No. 1645, the NEA
Board may take preventive and/or disciplinary measures including
suspension and/or removal and replacement of any or all of the
members of the Board of Directors, officers or employees of the
electric cooperative, other borrowing institutions or supervised or
controlled entities as the NEA Board of Administrators may deem
fit and necessary and to take any other remedial measures as the
law or the Loan Agreement may provide;

RESOLVED TO AUTHORIZE THE
ADMINISTRATOR, as he is hereby authorized, to remove the
General Manager of Aklan Electric Cooperative, Inc. (AKELCO)
as the Administrator may deem fit and necessary, subject to
confirmation of the Board of Administrators.
[44]
(Emphasis
supplied)

It is clear from Resolution No. 22 that any action of the NEA
Administrator is subject to the confirmation of the NEA-BOA. What is
delegated to the NEA Administrator is only the power to investigate and to
make a recommendation, not the power to discipline.
[45]
The disciplining
authority is still the NEA-BOA. The authority of the NEA Administrator is
only recommendatory. If it were otherwise, there is no need for any
confirmation by the NEA-BOA. Thus, any sanction or penalty arising from
any investigation by the NEA Administrator takes effect only upon
confirmation by the NEA-BOA.

The act of the NEA-BOA in delegating the power to investigate to the
NEA Administrator is not without basis. Hence:

The rule that requires an administrative officer to exercise
his own judgment and discretion does not preclude him from
utilizing, as a matter of practical administrative procedure, the aid
of subordinates to investigate and report to him the facts, on the
basis of which the officer makes his decisions. It is sufficient that
the judgment and discretion finally exercised are those of the
officer authorized by law. x x x
[46]


Even this Court, in its exercise of its disciplinary authority over lower
court justices, judges, judicial employees and lawyers, delegates the power
to investigate administrative complaints. Thus:

[T]he Constitution grants the Supreme Court disciplinary authority
over all lower court justices and judges, as well as judicial
employees and lawyers. While the investigation of administrative
complaints is delegated usually to the Office of the Court
Administrator (OCA) or the Integrated Bar of the Philippines
(IBP), the Court nonetheless makes its own judgments of the cases
[where] sanctions are imposed. It does not merely adopt or solely
rely on the recommendations of the OCA or the IBP.
[47]



In this case, the phrase subject to confirmation of the Board of
Administrators implies that the final decision rests on the NEA-BOA. The
NEA-BOA may confirm, modify or nullify the act of the NEA
Administrator.

Further, the delegation of authority by the NEA-BOA was in
accordance with Section 5(b)(7) of PD 269, as amended, which grants the
NEA Administrator the following powers and duties:

(1) To execute and administer the policies, plans and
program, and the rules and regulations, approved or promulgated
by the Board of Administrators;
(2) To submit for the consideration of the Board of
Administrators such policies, plans and programs as he deems
necessary to carry out the provisions and purposes of this Decree;
(3) To direct and supervise the operation and internal
administration of the NEA and, for this purpose, to delegate some
or any of his powers and duties to subordinate officials of the
NEA;
(4) Subject to the guidelines and policies established by
the Board of Administrators, to appoint and fix the number and
compensation of subordinate officials and employees of the
NEA; Provided, however, [t]he provisions of the Civil Service
Law and Position Classification Law shall not apply to the
appointment and compensation of any such subordinate official or
employee;
(5) For cause, to remove, suspend, or otherwise
discipline any subordinate official or employee;
(6) To prepare an annual report on the activities of the
NEA at the close of each fiscal year and to submit a copy thereof
to the President of the Philippines and when it comes into
existence, the Prime Minister and the appropriate committee of,
and as determined by, the National Assembly; and
(7) To exercise such other powers and duties as may
be vested in him by the Board of Administrators.

x x x x (Emphasis supplied)
The Court notes that petitioner did not motu proprio issue the assailed
Resolution and Orders suspending and removing respondent as AKELCO
general manager. The AKELCO-BOD initiated the suspension and
termination of respondent through the issuance of Board Resolutions. The
AKELCO-BOD submitted its Board Resolutions suspending and removing
respondent to NEA for approval. This procedure is in accordance with
Section 24(a) of PD 269, as amended, which states in part that the
management of a cooperative shall be vested in its Board [of Directors],
subject to the supervision and control of NEA which shall have the right
to x xx approve all policies and resolutions. In approving the AKELCO-
BOD resolutions, petitioner was acting pursuant to the
authorization
[48]
issued by the NEA-BOA. More importantly, the NEA-BOA
confirmed petitioners issuances approving the suspension and removal of
respondent.

The Court notes that petitioners counsel relied on several decisions of
the Court of Appeals in addition to Supreme Court cases to buttress his
arguments. The Court reminds counsel that decisions of the Court of
Appeals are neither controlling nor conclusive on this Court. Moreover, the
Court strongly suggests that petitioners counsel be brief and straightforward
in drafting pleadings. He should, as much as possible, refrain from
quoting lengthily irrelevant portions of Supreme Court decisions. The
Court further advises petitioners counsel to observe and maintain the
respect due to courts at all times. An unfavorable judgment can never justify
the use of intemperate language against the courts.

WHEREFORE, the Court GRANTS the petition. The Court SETS
ASIDE the 19 June 2003 Decision and 26 September 2003 Resolution of the
Court of Appeals in CA-G.R. SP No. 70399. The Court declares VALID
the NEA-BOA Resolution No. 37 dated 5 June 2002 confirming NEA
Administrator Francisco Silvas Order of 17 May 2002 approving the
AKELCO-BOD Resolution No. 2 of 11 May 2002 terminating
respondent Leovigildo T. Mationg as General Manager of AklanElectric
Cooperative, Inc.

SO ORDERED

























MARIA PAZ V. NEPOMUCENO, G.R. No. 146091
joined by her husband,
FERMIN A. NEPOMUCENO,
Petitioners,
Present:

PUNO, C.J., Chairperson,
CARPIO,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
CITY OF SURIGAO and
SALVADOR SERING in his
capacity as City Mayor of
Surigao,
Respondents. Promulgated:

July 28, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N
CORONA, J.:


Petitioners assail the February 29, 2000 decision
[1]
and October 12,
2000 resolution of the Court of Appeals (CA) in CA-G.R. CV No. 56461
affirming with modification the decision of the Regional Trial Court (RTC)
of Surigao City, Branch 32, in Civil Case No. 4570.
Civil Case No. 4570 was a complaint for Recovery of Real Property
and/or its Market Value filed by petitioner Maria Paz Nepomuceno to
recover a 652 sq. m. portion
[2]
of her 50,000 sq. m. lot
[3]
which was
occupied, developed and used as a city road by the city government of
Surigao. Maria Paz alleged that the city government neither asked her
permission to use the land nor instituted expropriation proceedings for its
acquisition. On October 4, 1994, she and her husband, co-petitioner, Fermin
A. Nepomuceno, wrote respondent (then Surigao City Mayor) Salvador
Sering a letter proposing an amicable settlement for the payment of the
portion taken over by the city. They subsequently met with Mayor Sering to
discuss their proposal but the mayor rebuffed them in public and refused to
pay them anything. In a letter dated January 30, 1995, petitioners sought
reconsideration of the mayors stand. But again, the city mayor turned this
down in his reply dated January 31, 1995. As a consequence, petitioners
claimed that they suffered mental anguish, embarrassment, disappointment
and emotional distress which entitled them to moral damages.

In their answer, respondents admitted the existence of the road in
question but alleged that it was constructed way back in the 1960s during the
administration of former Mayor Pedro Espina. At that time, the lot was
owned by the spouses Vicente and Josefa Fernandez who signed a road
right-of-way agreement in favor of the municipal government. However, a
copy of the agreement could no longer be found because the records were
completely destroyed and lost when the Office of the City Engineer was
demolished by typhoon Nitang in 1994.

After hearing the parties and evaluating their respective evidence, the
RTC rendered its decision
[4]
and held:

WHEREFORE, premises considered, judgment is hereby
rendered ordering the City of Surigao to pay to Maria Paz V.
Nepomuceno and her husband, Fermin Nepomuceno, the sum
of P5,000.00 as attorneys fees, and the further sum of P3,260.00
as compensation for the portion of land in dispute, with legal
interest thereon from 1960 until fully paid, and upon payment,
directing her to execute the corresponding deed of conveyance in
favor of the said defendant. The Clerk of Court shall execute the
necessary instrument in the event of her failure to do so.

The claims for moral and exemplary damages are denied
for lack of basis. No pronouncement as to costs.

SO ORDERED.
[5]



Unsatisfied with that decision, the petitioners appealed to the CA. As
stated earlier, the CA modified the RTC decision and held that petitioners
were entitled toP30,000 as moral damages for having been rebuffed by
Mayor Sering in the presence of other people. It also awarded
petitioners P20,000 as attorneys fees and litigation expenses considering
that they were forced to litigate to protect their rights and had to travel to
Surigao City from their residence in Ormoc City to prosecute their claim.
The CA affirmed the decision of the trial court in all other respects.
Petitioners filed a motion for reconsideration but it was denied. Hence, this
petition.

Petitioners claim that, in fixing the value of their property, justice and
equity demand that the value at the time of actual payment should be the
basis, not the value at the time of the taking as the RTC and CA held. They
demand P200/sq. m. or a total sum of P130,400 plus legal interest. In the
alternative, petitioners pray for the re-examination of the meaning of just
compensation and cite the separate concurring opinion of Justice Antonio
Barredo in Municipality of La Carlota v. Spouses Gan.
[6]


Petitioners also assert that the CA decision in Spouses Mamerto
Espina, Sr. and Flor Espina v. City of Ormoc
[7]
should be applied to this
case because of the substantial factual similarity between the two cases. In
that case, the City of Ormoc was directed to institute a separate
expropriation proceeding over the subject property.

Moreover, petitioners maintain that exemplary damages should be
awarded because respondent City of Surigao illegally took their property.

Petitioners arguments are without merit.

In a long line of cases, we have consistently ruled that where actual
taking is made without the benefit of expropriation proceedings and the
owner seeks recovery of the possession of the property prior to the filing of
expropriation proceedings, it is the value of the property at the time of taking
that is controlling for purposes of compensation.
[8]
As pointed out
in Republic v. Lara,
[9]
the reason for this rule is:

The owner of private property should be compensated only for
what he actually loses; it is not intended that his compensation
shall extend beyond his loss or injury. And what he loses is
only the actual value of his property at the time it is
taken. This is the only way the compensation to be paid can be
truly just; i.e., just not only to the individual whose property is
taken, but to the public, which is to pay for it.

Thus, the value of petitioners property must be ascertained as of 1960
when it was actually taken. It is as of that time that the real measure of their
loss may fairly be adjudged. The value, once fixed, shall earn interest at the
legal rate until full payment is effected, conformably with other principles
laid down by case law.
[10]


Regarding petitioners contention on the applicability of Article 1250
of the Civil Code,
[11]
Republic v. CA
[12]
is enlightening:

Article 1250 of the Civil Code, providing that, in case of
extraordinary inflation or deflation, the value of the currency at
the time of the establishment of the obligation shall be the basis
for the payment when no agreement to the contrary is
stipulated, has strict application only to contractual
obligations. In other words, a contractual agreement is needed for
the effects of extraordinary inflation to be taken into account to
alter the value of the currency. (emphasis supplied)


Since there was never any contractual obligation between the parties
in this case, Article 1250 of the Civil Code finds no application.

Moreover, petitioners cannot properly insist on the application of the
CA decision in Spouses Mamerto Espina, Sr. and Flor Espina v. City of
Ormoc.
[13]
A decision of the CA does not establish judicial precedent. A
ruling of the CA on any question of law is not binding on this Court.
[14]
In
fact, the Court may review, modify or reverse any such ruling of the CA.

Finally, we deny petitioners prayer for exemplary damages.
Exemplary damages may be imposed by way of example or correction for
the public good.
[15]
The award of these damages is meant to be a deterrent to
socially deleterious actions.
[16]
Exemplary damages would have been
appropriate had it been shown that the city government indeed misused its
power of eminent domain.
[17]
In this case, both the RTC and the CA found
there was no socially deleterious action or misuse of power to speak of. We
see no reason to rule otherwise.
WHEREFORE, the petition is hereby DENIED.
[G.R. No. 134284. December 1, 2000]
AYALA CORPORATION, petitioner, vs. ROSA-DIANA REALTY
AND DEVELOPMENT CORPORATION, respondent.
D E C I S I O N
DE LEON, JR., J.:
Before us is a petition for review on certiorari seeking the reversal of a
decision rendered by the Court of Appeals in C.A. G.R. C.V. No. 4598 entitled,
Ayala Corporation vs. Rosa-Diana Realty and Development Corporation,
dismissing Ayala Corporations petition for lack of merit.
The facts of the case are not in dispute:
Petitioner Ayala Corporation (hereinafter referred to as Ayala) was the
registered owner of a parcel of land located in Alfaro Street, Salcedo Village,
Makati City with an area of 840 square meters, more or less and covered by
Transfer Certificate of Title (TCT) No. 233435 of the Register of Deeds of Rizal.
On April 20, 1976, Ayala sold the lot to Manuel Sy married to Vilma Po
and Sy Ka Kieng married to Rosa Chan. The Deed of Sale executed between
Ayala and the buyers contained Special Conditions of Sale and Deed
Restrictions. Among the Special Conditions of Sale were:
a) the vendees shall build on the lot and submit the building plans to the vendor
before September 30, 1976 for the latters approval
b) the construction of the building shall start on or before March 30, 1977 and
completed before 1979. Before such completion, neither the deed of sale
shall be registered nor the title released even if the purchase price shall have
been fully paid
c) there shall be no resale of the property
The Deed Restrictions, on the other hand, contained the stipulation that the
gross floor area of the building to be constructed shall not be more than five (5)
times the lot area and the total height shall not exceed forty two (42) meters. The
restrictions were to expire in the year 2025.
Manuel Sy and Sy Ka Kieng failed to construct the building in violation of the
Special Conditions of Sale. Notwithstanding the violation, Manuel Sy and Sy
Ka Kieng, in April 1989, were able to sell the lot to respondent Rosa-Diana
Realty and Development Corporation (hereinafter referred to as Rosa-Diana)
with Ayalas approval. As a consideration for Ayala to release the Certificate of
Title of the subject property, Rosa-Diana, on July 27, 1989 executed an
Undertaking promising to abide by said special conditions of sale executed
between Ayala and the original vendees. Upon the submission of the
Undertaking, together with the building plans for a condominium project, known
as The Peak, Ayala released title to the lot, thereby enabling Rosa-Diana to
register the deed of sale in its favor and obtain Certificate of Title No. 165720 in
its name. The title carried as encumbrances the special conditions of sale and
the deed restrictions. Rosa-Dianas building plans as approved by Ayala were
subject to strict compliance of cautionary notices appearing on the building plans
and to the restrictions encumbering the Lot regarding the use and occupancy of
the same.
Thereafter, Rosa-Diana submitted to the building official of Makati another
set of building plans for The Peak which were substantially different from those
that it earlier submitted to Ayala for approval. While the building plans which
Rosa-Diana submitted to Ayala for approval envisioned a 24-meter high, seven
(7) storey condominium project with a gross floor area of 3,968.56 square
meters, the building plans which Rosa-Diana submitted to the building official of
Makati, contemplated a 91.65 meter high, 38 storey condominium building with a
gross floor area of 23,305.09 square meters.
[1]
Needless to say, while the first set
of building plans complied with the deed restrictions, the latter set exceeded the
same.
During the construction of Rosa-Dianas condominium project, Ayala filed an
action with the Regional Trial Court (RTC) of Makati, Branch 139 for specific
performance, with application for a writ of preliminary injunction/temporary
restraining order against Rosa-Diana Realty seeking to compel the latter to
comply with the contractual obligations under the deed of restrictions annotated
on its title as well as with the building plans it submitted to the latter. In the
alternative, Ayala prayed for rescission of the sale of the subject lot to Rosa-
Diana Realty.
The lower court denied Ayalas prayer for injunctive relief, thus enabling
Rosa-Diana to complete the construction of the building. Undeterred, Ayala tried
to cause the annotation of a notice of lis pendens on Rosa-Dianas title. The
Register of Deeds of Makati, however, refused registration of the notice of lis
pendens on the ground that the case pending before the trial court, being an
action for specific performance and/or rescission, is an action in personam which
does not involve the title, use or possession of the property.
[2]
The Land
Registration Authority (LRA) reversed the ruling of the Register of Deeds saying
that an action for specific performance or rescission may be classified as a
proceeding of any kind in court directly affecting title to the land or the use or
occupation thereof for which a notice of lis pendens may be held proper.
[3]
The
decision of the LRA, however, was overturned by the Court of Appeals in C.A.
G.R. S.P. No. 29157. In G.R. No. 112774, We affirmed the ruling of the CA on
February 16, 1994 saying
We agree with respondent court that the notice of lis pendens is not
proper in this instance. The case before the trial court is a personal
action since the cause of action thereof arises primarily from the alleged
violation of the Deed of Restrictions.
In the meantime, Ayala completed its presentation of evidence before the
trial court. Rosa-Diana filed a Demurrer to Evidence averring that Ayala failed to
establish its right to the relief sought inasmuch as (a) Ayala admittedly does not
enforce the deed restrictions uniformly and strictly (b) Ayala has lost its
right/power to enforce the restrictions due to its own acts and omissions; and (c)
the deed restrictions are no longer valid and effective against lot buyers in
Ayalas controlled subdivision.
The trial court sustained Rosa-Dianas Demurrer to Evidence saying that
Ayala was guilty of abandonment and/or estoppel due to its failure to enforce the
terms of deed of restrictions and special conditions of sale against Manuel Sy
and Sy Ka Kieng. The trial court noted that notwithstanding the violation of the
special conditions of sale, Manuel Sy and Sy Ka Kieng were able to transfer the
title to Rosa-Diana with the approval of Ayala. The trial court added that Ayalas
failure to enforce the restrictions with respect to Trafalgar, Shellhouse, Eurovilla,
LPL Plaza, Parc Regent, LPL Mansion and Leronville which are located within
Salcedo Village, shows that Ayala discriminated against those which it wants to
have the obligation enforced. The trial court then concluded that for Ayala to
discriminately choose which obligor would be made to follow certain conditions
and which should not, did not seem fair and legal.
The Court of Appeals affirmed the ruling of the trial court saying that the
appeal is sealed by the doctrine of the law of the case in C.A. G.R. S.P. No.
29157 where it was stated that
]x x x Ayala is barred from enforcing the Deed of Restrictions in
question pursuant to the doctrine of waiver and estoppel. Under the
terms of the deed of sale, the vendee Sy Ka Kieng assumed faithful
compliance with the special conditions of sale and with the Salcedo
Village Deed of Restrictions. One of the conditions was that a building
would be constructed within one year. However, Sy Ka Kieng failed to
construct the building as required under the Deed of Sale. Ayala did
nothing to enforce the terms of the contract. In fact, it even agreed to
the sale of the lot by Sy Ka Kieng in favor of petitioner Realty in 1989 or
thirteen (13) years later. We, therefore, see no justifiable reason for
Ayala to attempt to enforce the terms of the conditions of sale against
the petitioner.
x x x
The Court of Appeals also cited C.A. G.R. C.V. No. 46488 entitled, Ayala
Corporation vs. Ray Burton Development Corporation which relied on C.A. G.R.
S.P. No. 29157 in ruling that Ayala is barred from enforcing the deed restrictions
in dispute. Upon a motion for reconsideration filed by herein petitioner, the Court
of Appeals clarified that the citation of the decision in Ayala Corporation vs. Ray
Burton Development Corporation, C.A. G.R. C.V. No. 46488, February 27, 1996,
was made not because said decision is res judicata to the case at bar but rather
because it is precedential under the doctrine of stare decisis.
Upon denial of said motion for reconsideration, Ayala filed the present
appeal.
Ayala contends that the pronouncement of the Court of Appeals in C.A. G.R.
S.P. No. 29157 that it is estopped from enforcing the deed restrictions is
merely obiter dictainasmuch as the only issue raised in the aforesaid case was
the propriety of a lis pendens annotation on Rosa-Dianas certificate of title.
Ayala avers that Rosa-Diana presented no evidence whatsoever on Ayalas
supposed waiver or estoppel in C.A. G.R. S.P. No. 29157. Ayala likewise
pointed out that at the time C.A. G.R. S.P. No. 29157 was on appeal, the issues
of the validity and continued viability of the deed of restrictions and their
enforceability by Ayala were joined and then being tried before the trial court.
Petitioners assignment of errors in the present appeal may essentially be
summarized as follows:
I. The Court of Appeals acted in a manner not in accord with law and the
applicable decisions of the Supreme Court in holding that the doctrine of the
law of the case, or stare decisis, operated to dismiss Ayalas appeal.
II. The Court of Appeals erred as a matter of law and departed from the
accepted and usual course of judicial proceedings when it failed to expressly
pass upon the specific errors assigned in Ayalas appeal.
A discussion on the distinctions between law of the case, stare
decisis and obiter dicta is in order.
The doctrine of the law of the case has certain affinities with, but is clearly
distinguishable from, the doctrines of res judicata and stare decisis, principally
on the ground that the rule of the law of the case operates only in the particular
case and only as a rule of policy and not as one of law.
[4]
At variance with the
doctrine of stare decisis, the ruling adhered to in the particular case under the
doctrine of the law of the case need not be followed as a precedent in
subsequent litigation between other parties, neither by the appellate court which
made the decision followed on a subsequent appeal in the same case, nor by
any other court. The ruling covered by the doctrine of the law of the case is
adhered to in the single case where it arises, but is not carried into other cases
as a precedent.
[5]
On the other hand, under the doctrine of stare decisis, once a
point of law has been established by the court, that point of law will, generally, be
followed by the same court and by all courts of lower rank in subsequent cases
where the same legal issue is raised.
[6]
Stare decisis proceeds from the first
principle of justice that, absent powerful countervailing considerations, like cases
ought to be decided alike.
[7]

The Court of Appeals, in ruling against petitioner Ayala Corporation stated
that the appeal is sealed by the doctrine of the law of the case, referring to G.R.
No. 112774 entitled Ayala Corporation, petitioner vs. Court of Appeals, et
al., respondents. The Court of Appeals likewise made reference to C.A. G.R.
C.V. No. 46488 entitled, Ayala Corporation vs. Ray Burton Development
Corporation, Inc. in ruling against petitioner saying that it is jurisprudential under
the doctrine of stare decisis.
It must be pointed out that the only issue that was raised before the Court of
Appeals in C.A. G.R. S.P. No. 29157 was whether or not the annotation of lis
pendens is proper. The Court of Appeals, in its decision, in fact stated the
principal issue to be resolved is: whether or not an action for specific
performance, or in the alternative, rescission of deed of sale to enforce the deed
of restrictions governing the use of property, is a real or personal action, or one
that affects title thereto and its use or occupation thereof."
[8]

In the aforesaid decision, the Court of Appeals even justified the cancellation
of the notice of lis pendens on the ground that Ayala had ample protection should
it succeed in proving its allegations regarding the violation of the deed of
restrictions, without unduly curtailing the right of the petitioner to fully enjoy its
property in the meantime that there is as yet no decision by the trial court.
[9]

From the foregoing, it is clear that the Court of Appeals was aware that the
issue as to whether petitioner is estopped from enforcing the deed of restrictions
has yet to be resolved by the trial court. Though it did make a pronouncement
that the petitioner is estopped from enforcing the deed of restrictions, it also
mentioned at the same time that this particular issue has yet to be resolved by
the trial court. Notably, upon appeal to this Court, We have affirmed the ruling of
the Court of Appeals only as regards the particular issue of the propriety of the
cancellation of the notice of lis pendens.
We see no reason then, how the law of the case or stare decisis can be held
to be applicable in the case at bench. If at all, the pronouncement made by the
Court of Appeals that petitioner Ayala is barred from enforcing the deed of
restrictions can only be considered as obiter dicta. As earlier mentioned, the only
issue before the Court of Appeals at the time was the propriety of the annotation
of the lis pendens. The additional pronouncement of the Court of Appeals that
Ayala is estopped from enforcing the deed of restrictions even as it recognized
that this said issue is being tried before the trial court was not necessary to
dispose of the issue as to the propriety of the annotation of the lis
pendens. A dictum is an opinion of a judge which does not embody the
resolution or determination of the court, and made without argument, or full
consideration of the point, not the proffered deliberate opinion of the judge
himself.
[10]
It is not necessarily limited to issues essential to the decision but may
also include expressions of opinion which are not necessary to support the
decision reached by the court. Mere dicta are not binding under the doctrine
of stare decisis.
[11]

While the Court of Appeals did not err in ruling that the present petition is not
barred by C.A. G.R. C.V. No. 46488 entitled Ayala Corporation vs. Ray Burton
Development Inc. under the doctrine of res judicata, neither, however, can the
latter case be cited as precedential under the doctrine of stare decisis. It must be
pointed out that at the time the assailed decision was rendered, C.A. G.R. C.V.
No. 46488 was on appeal with this Court. Significantly, in the decision We have
rendered in Ayala Corporation vs. Ray Burton Development Corporation
[12]
which
became final and executory on July 5, 1999 we have clearly stated that An
examination of the decision in the said Rosa-Diana case reveals that the sole
issue raised before the appellate court was the propriety of the lis
pendens annotation. However, the appellate court went beyond the sole issue
and made factual findings bereft of any basis in the record to inappropriately rule
that AYALA is in estoppel and has waived its right to enforce the subject
restrictions. Such ruling was immaterial to the resolution of the issue of
the propriety of the annotation of the lis pendens. The finding of estoppel was
thus improper and made in excess of jurisdiction.
Coming now to the merits of the case, petitioner avers that the Court of
Appeals departed from the usual course of judicial proceedings when it failed to
expressly pass upon the specific errors assigned in its appeal. Petitioner
reiterates its contention that the trial courts findings that Ayala has waived
its right to enforce the deed of restrictions is not supported by law and evidence.
We find merit in the petition.
It is basic that findings of fact of the trial court and the Court of Appeals are
conclusive upon the Supreme Court when supported by substantial
evidence.
[13]
We are constrained, however, to review the trial courts findings of
fact, which the Court of Appeals chose not to pass upon, inasmuch as there is
ample evidence on record to show that certain facts were overlooked which
would affect the disposition of the case.
In its assailed decision of February 4, 1994, the trial court, ruled in favor of
respondent Rosa-Diana Realty on the ground that Ayala had not acted fairly
when it did not institute an action against the original vendees despite the latters
violation of the Special Conditions of Sale but chose instead to file an action
against herein respondent Rosa-Diana. The trial court added that although the
38 storey building of Rosa-Diana is beyond the total height restriction, it was not
violative of the National Building Code. According to the trial court the
construction of the 38 storey building known as The Peak has not been shown
to have been prohibited by law and neither is it against public policy.
It bears emphasis that as complainant, Ayala had the prerogative to initiate
an action against violators of the deed restrictions. That Rosa-Diana had acted
in bad faith is manifested by the fact that it submitted two sets of building plans,
one which was in conformity with the deed restrictions submitted to Ayala and
MACEA, and the other, which exceeded the height requirement in the deed
restrictions to the Makati building official for the purpose of procuring a building
permit from the latter. Moreover, the violation of the deed restrictions committed
by respondent can hardly be denominated as a minor violation. It should be
pointed out that the original building plan which was submitted to and approved
by petitioner Ayala Corporation, envisioned a twenty four (24) meter high, seven
(7) storey condominium whereas the respondents building plan which was
submitted to and approved by the building official of Makati is that of a thirty eight
(38) storey, 91.65 meters high, building. At present, the Peak building of
respondent which actually stands at 133.65 meters with a total gross floor area of
23,305.09 square meters, seriously violates the dimensions indicated in the
building plans submitted by Rosa-Diana to petitioner Ayala for approval
inasmuch as the Peak building exceeds the approved height limit by about 109
meters and the allowable gross floor area under the applicable deed restrictions
by about 19,105 square meters. Clearly, there was a gross violation of the deed
restrictions and evident bad faith by the respondent.
It may not be amiss to mention that the deed restrictions were revised in a
general membership meeting of the association of lot owners in Makati Central
Business District the Makati Commercial Estate Association, Inc. (MACEA)
whereby direct height restrictions were abolished in lieu of floor area
limits. Respondent, however, did not vote for the approval of this revision during
the General Membership meeting which was held on July 11, 1990 at the Manila
Polo Club Pavilion, Makati, Metro Manila and again on July 12, 1990 at the Hotel
Mandarin Oriental, Makati, Metro Manila. Hence, respondent continues to be
bound by the original deed restrictions applicable to Lot 7, Block 1 and annotated
on its title to said lot. In any event, assuming arguendo that respondent voted for
the approval of direct height restrictions in lieu of floor area limits, the total floor
area of its Peak building would still be violative of the floor area limits to the
extent of about 9,865 square meters of allowable floor area under the MACEA
revised restrictions.
Respondent Rosa-Diana avers that there is nothing illegal or unlawful in the
building plans which it used in the construction of the Peak condominium
inasmuch as it bears the imprimatur of the building official of Makati, who is
tasked to determine whether building and construction plans are in accordance
with the law, notably, the National Building Code.
Respondent Rosa-Diana, however, misses the point inasmuch as it has
freely consented to be bound by the deed restrictions when it entered into a
contract of sale with spouses Manuel Sy and Sy Ka Kieng. While respondent
claims that it was under the impression that the deed restrictions were no longer
being enforced by Ayala, the Undertaking
[14]
it executed belies this same claim. In
said Undertaking, respondent agreed to construct and complete the construction
of the house on said lot as required under the special condition of sale.
Respondent likewise bound itself to abide and comply with x x x the condition of
the rescission of the sale by Ayala Land, Inc. on the grounds therein stated x x x.
Contractual obligations between parties have the force of law between them
and absent any allegation that the same are contrary to law, morals, good
customs, public order or public policy, they must be complied with in good
faith. Hence, Article 1159 of the New Civil Code provides
Obligations arising from contracts have the force of law between the
contracting parties and should be complied with in good faith.
Respondent Rosa-Diana insists that the trial court had already ruled that the
Undertaking executed by its Chairman and President cannot validly bind Rosa-
Diana and hence, it should not be held bound by the deed restrictions.
We agree with petitioner Ayalas observation that respondent Rosa-Dianas
special and affirmative defenses before the trial court never mentioned
any allegation that its president and chairman were not authorized to execute
the Undertaking. It was inappropriate therefore for the trial court to rule that in
the absence of any authority or confirmation from the Board of Directors of
respondent Rosa-Diana, its Chairman and the President cannot validly enter into
an undertaking relative to the construction of the building on the lot within one
year from July 27, 1989 and in accordance with the deed restrictions. Curiously,
while the trial court stated that it cannot be presumed that the Chairman and the
President can validly bind respondent Rosa-Diana to enter into the aforesaid
Undertaking in the absence of any authority or confirmation from the Board of
Directors, the trial court held that the ordinary presumption of regularity of
business transactions is applicable as regards the Deed of Sale which was
executed by Manuel Sy and Sy Ka Kieng and respondent Rosa-Diana. In the
light of the fact that respondent Rosa-Diana never alleged in its Answer that its
president and chairman were not authorized to execute the Undertaking, the
aforesaid ruling of the trial court is without factual and legal basis and surprising
to say the least.
The fact alone that respondent Rosa-Diana conveniently prepared two sets
of building plans - with one set which fully conformed to the Deed Restrictions
and another in gross violation of the same - should have cautioned the trial court
to conclude that respondent Rosa-Diana was under the erroneous impression
that the Deed Restrictions were no longer enforceable and that it never intended
to be bound by the Undertaking signed by its President and Chairman. We
reiterate that contractual obligations have the force of law between parties and
unless the same are contrary to public policy morals and good customs, they
must be complied by the parties in good faith.
Petitioner, in its Petition, prays that judgment be rendered:
a) ordering Rosa-Diana Realty and Development Corporation to comply with its
contractual obligations in the construction of the Peak by removing, or
closing down and prohibiting Rosa-Diana from using, selling, leasing or
otherwise disposing of, the portions of areas thereof constructed beyond or
in excess of the approved height, as shown by the building plans submitted
to, and approved by, Ayala, including any other portion of the building
constructed not in accordance with the said building plans, during the
effectivity of the Deed Restrictions;
b) Alternatively, in the event specific performance has become impossible:
(1)Ordering the cancellation and rescission of the April 20, 1976 Deed
of Sale by Ayala in favor of the original vendees thereof as well as
the subsequent Deed of Sale executed by such original vendees in
favor of Rosa-Diana, and ordering Rosa-Diana to return to Ayala Lot
7, Block 1 of Salcedo Village;
(2)ordering the cancellation of Transfer Certificate of Title No. 165720
(in the name of Rosa-Diana) and directing the office of the Register
of Deeds of Makati to issue a new title over the lot in the name of
Ayala; and
(3)ordering Rosa-Diana to pay Ayala attorneys fees in the amount of
P500,000.00, exemplary damages in the amount of P5,000,000.00
and the costs of suit.
It must be noted that during the trial respondent Rosa-Diana was able to
complete the construction of The Peak as a building with a height of thirty eight
(38) floors or 133.65 meters and with a total gross floor area of 23,305.09 square
meters. Having been completed for a number of years already, it would be
reasonable to assume that it is now fully tenanted. Consequently, the remedy of
specific performance by respondent is no longer feasible. However, neither can
we grant petitioners prayer for the cancellation and rescission of the April 20,
1976 Deed of Sale by petitioner Ayala in favor of the original vendees thereof as
well as the subsequent Deed of Sale executed by the original vendees in favor of
respondent Rosa-Diana inasmuch as the original vendees were not even made
parties in the case at bar. Moreover, petitioner Ayala, having agreed to the
resale of the property by the original vendees, spouses Manuel Sy and Sy Ka
Kieng, to respondent Rosa-Diana despite the failure of Manuel Sy and Sy Ka
Kieng to comply with their obligation to construct a building within one year from
April 20, 1976, has effectively waived its right to rescind the sale of the subject
lot to the original vendees.
Faced with the same question as to the proper remedy available to petitioner
in the case of Ayala Corporation vs. Ray Burton Development Inc., a case
which is on all fours with the case at bench, we ruled therein that the party guilty
of violating the deed restrictions may only be held alternatively liable for
substitute performance of its obligation, that is, for the payment of damages. In
the aforesaid case it was observed that the Consolidated and Revised Deed
Restrictions (CRDR) imposed development charges on constructions which
exceed the estimated Gross Limits permitted under the original Deed Restrictions
but which are within the limits of the CRDRs.
The pertinent portion of the Deed of Restrictions reads:
3. DEVELOPMENT CHARGE
For any building construction within the Gross Floor Area limits defined
under Paragraphs C-2.1 to C-2.4 above, but which will result in a Gross
Floor Area exceeding certain standards defined in Paragraphs C-3.1-C
below, the OWNER shall pay MACEA, prior to the construction of any
new building, a DEVELOPMENT CHARGE as a contribution to a trust
fund to be administered by MACEA. This trust fund shall be used to
improve facilities and utilities in Makati Central District.
3.1. The amount of the development charge that shall be due from the
OWNER shall be computed as follows:
DEVELOPMENT CHARGE = A x (B-C-D)
where:
A is equal to the Area Assessment which shall be set at Five Hundred
Pesos (P500.00) until December 31,1990. Each January 1st thereafter,
such amount shall increase by ten percent (10%) over the Area
Assessment charged in the immediately preceding year; provided that
beginning 1995 and at the end of every successive five-year period
thereafter, the increase in the Area Assessment shall be reviewed and
adjusted by the VENDOR to correspond to the accumulated increase in
the construction cost index during the immediately preceding five years
as based on the weighted average of wholesale price and wage indices
of the National Census and Statistics Office and the Bureau of Labor
Statistics.
B - is equal to the Gross Floor Area of the completed or expanded
building in square meters.
C - is equal to the estimated Gross Floor Area permitted under the
original deed restrictions, derived by multiplying the lot area by the
effective original FAR shown below for each location.
We then ruled in the aforesaid case that the development charges are a fair
measure of compensatory damages which therein respondent Ray Burton
Development Inc. is liable to Ayala Corporation. The dispositive portion of the
decision in the said case which is squarely applicable to the case at bar, reads as
follows:
WHEREFORE, premises considered, the assailed Decision of the Court
of Appeals dated February 27, 1996, in CA-G.R. C.V. No. 46488, and its
Resolution dated October 7, 1996 are hereby REVERSED and SET
ASIDE, and in lieu thereof, judgment is hereby rendered finding that:
(1) The Deed Restrictions are valid and petitioner AYALA is
not estopped from enforcing them against lot owners who
have not yet adopted the Consolidated and Revised Deed
Restrictions.
(2) Having admitted that the Consolidated and Revised Deed
Restrictions are the applicable Deed Restrictions to Ray
Burton Development Corporation, RBDC should be, and is
bound by the same.
(3) Considering that Ray Burton Development Corporations
Trafalgar plaza exceeds the floor area limits of the Deed
Restrictions, RBDC is hereby ordered to pay development
charges as computed under the provisions of the
consolidated and Revised Deed Restrictions currently in
force.
(4) Ray Burton Development corporation is further ordered to
pay AYALA exemplary damages in the amount of
P2,500,000.00 attorneys fees in the amount of
P250,000.00.
SO ORDERED.
There is no reason why the same rule should not be followed in the case at
bar, the remedies of specific performance and/or rescission prayed for by
petitioner no longer being feasible. In accordance with the peculiar
circumstances of the case at bar, the development charges would certainly be a
fair measure of compensatory damages to petitioner Ayala.
Exemplary damages in the sum of P2,500,000.00 as prayed for by petitioner
are also in order inasmuch as respondent Rosa-Diana was in evident bad faith
when it submitted a set of building plans in conformity with the deed restrictions
to petitioner Ayala for the sole purpose of obtaining title to the property, but only
to prepare and later on submit another set of building plans which are in gross
violation of the Deed Restrictions. Petitioner Ayala is likewise entitled to an
award of attorneys fees in the sum of P250,000.00.
WHEREFORE, the assailed Decision of the Court of Appeals dated
December 4, 1997 and its Resolution dated June 19, 1998 , C.A. G.R. C.V. No.
4598, are REVERSED and SET ASIDE. In lieu thereof, judgment is rendered
a) ordering respondent Rosa-Diana Realty and Development Corporation to
pay development charges as computed under the provisions of the
consolidated and Revised Deed Restrictions currently in force; and
b) ordering respondent Rosa-Diana Realty and Development Corporation to
pay petitioner Ayala Corporation exemplary damages in the sum of
P2,500,000.00, attorneys fees in the sum of P250,000.00 and the costs of
the suit.
SO ORDERED.








































SILLIMAN UNIVERSITY,
Petitioner,




- versus -




NANILA FONTELO-PAALAN,
Respondent.

G.R. No. 170948
Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and
NACHURA, JJ.

Promulgated:

June 26, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x


D E C I S I O N


CHICO-NAZARIO, J.:


Before this Court is a Petition for Review on Certiorari under Rule 45
of the Revised Rules of Court, filed by
petitioner Silliman University seeking to reverse and set aside the
Decision
[1]
of the Court of Appeals dated 19 January 2005, and its
Resolution
[2]
dated 7 December 2005. The Court of Appeals, in its assailed
Decision and Resolution, affirmed the Decision
[3]
of the National Labor
Relations Commission (NLRC) dated 22 May 2002, and its
Resolution
[4]
dated 18 December 2003, which upheld the validity of the
retirement of respondent Nanila Fontelo-Paalan but ordered the petitioner to
pay her the amount of P64,680.00, as additional retirement
benefits. The dispositive portion of the Court of Appeals Decision reads:

WHEREFORE, premises considered, the Resolution
dated December 18, 2003 of the National Labor Relations
Commission, Fourth Division, Cebu City, in NLRC Case No. V-
000960-2000 (RAB VII-05-0064-2000-D), is
hereby AFFIRMED. No pronouncement as to costs.
[5]



The present controversy stems from the following antecedent factual
and procedural facts:

In 1962, respondent was employed by the petitioner and was assigned
to the Medical Records Section of
the Silliman University Medical Center. She was later promoted as the Head
of the Medical Records Section, the position she held until her retirement
on 31 May 1997 at the age of 57 years old.
[6]


Respondents retirement was pursuant to the provision of the
petitioners retirement plan, integrated into the employees employment
contract, providing that retirement shall be automatic for any member
[7]
after
reaching the age of 65 or after 35 years of uninterrupted service to the
university.
[8]
Accordingly, respondent, on2 June 1997, received her
retirement benefits in the sum of P102,410.00 and P46,219.25, as additional
adjustment.
[9]


Almost three years after she received her retirement benefits or on 19
May 2000, respondent filed with the NLRC a Complaint
[10]
for illegal
dismissal against petitioner. Respondent averred in her Position Paper that
the stipulation in the retirement program providing for compulsory
retirement after rendering 35 years of uninterrupted service constitutes a
violation of her constitutional right to security of tenure and is in
contravention of the provision of Republic Act No. 7641
[11]
providing that
the compulsory retirement age is 65 years old.

In arguing that its retirement program has a legal basis, petitioner
cited the provision of Article 287 of the Labor Code, to wit:

Article 287. Retirement. - Any employee may be retired
upon reaching the retirement age established in the collective
bargaining agreement or other applicable employment contract.

x x x x

In the absence of a retirement plan or agreement providing
for retirement benefits of employees in the establishment, an
employee upon reaching the age of sixty (60) years or more, but
not beyond sixty-five (65) years which is hereby declared the
compulsory retirement age, who has served at least five (5) years
in the said establishment may retire and shall be entitled to
retirement pay equivalent to at least one-half (1/2) month salary
for every year of service, a fraction of at least six (6) months
being considered as one whole year.


Petitioner asserted that the compulsory retirement age of 65 years
applies only in cases where there is no agreement between the employer and
the employee embodied either in the employment contract or the Collective
Bargaining Agreement. Thus, since it has an existing retirement program
integrated in its employees employment contract, the provisions of the said
retirement program providing for compulsory retirement after rendering 35
years of uninterrupted service shall govern the retirement of its
employees. In addition, petitioner advanced that the security of tenure
clause in the Constitution presupposes that there is an existing and ongoing
employment and not after the employment was already severed on account
of a valid retirement and after the employee received retirement benefits on
account of such retirement.

On 15 September 2000, the Labor Arbiter rendered a
Decision
[12]
declaring the petitioner guilty of illegal dismissal and ordered
the reinstatement of respondent. The dispositive portion of the Decision
reads:

WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered declaring the [petitioner] guilty of
illegal dismissal and is hereby ordered to reinstate [respondent] to
her former position without loss of seniority rights and privileges
and to pay the [respondent] her full backwages from the time of
her dismissal until actual reinstatement computed as follows:

Salary Received P6,809.00
X 36 months
-----------------
P 245,124.00

Less: Retirement Received
by Complainant 148,629.25
------------------
Total Backwages -------------- P 96,494.75

Ten percent (10%) attorneys fees is adjudicated from the
total monetary award.
[13]



On appeal, the NLRC reversed the ruling of the Labor Arbiter and
directed that the complaint for illegal dismissal filed by the respondent be
dismissed for lack of merit in a Decision
[14]
promulgated on 22 May
2002. In upholding the validity of the retirement plan, the NLRC declared
that company policies and rules and regulations, which are of long standing
and known to the employees, are considered agreed upon and part of the
employment contract; and so long as they are not unreasonable and
oppressive, they are bound to be respected. The decretal part of the NLRC
Decision reads:

WHEREFORE, in view of all the foregoing, this instant
appeal of the [petitioner] is granted. The appealed Decision
dated September 15, 2000 is REVERSED, SET ASIDE and
VACATED, and the complaint is dismissed for lack of merit.
[15]



Aggrieved, respondent interposed a Motion for Reconsideration but
was denied by the NLRC in a Resolution dated 18 December 2003. In the
same resolution, however, the NLRC modified its decision by adjudging
the petitioner liable for the amount of P64,680.00 as additional retirement
benefits. The amount was arrived at based on Section 5, Rule II of the
Rules Implementing the New Retirement Law.
[16]
Thus, the NLRC
resolved as follows:

WHEREFORE, premises considered, the decision under
consideration is hereby AFFIRMED with a modification in that
[petitioner] is hereby ordered to pay [respondent] the amount of
Sixty Four Thousand Six Hundred Eighty Pesos (P64, 680.00)
representing additional retirement benefits.
[17]



Petitioner sought the reversal of the aforequoted resolution through a
Motion for Reconsideration,
[18]
but before the NLRC could act on the same,
respondent already raised the unfavorable NLRC Decision to the Court of
Appeals.

On 19 April 2004, the NLRC resolved the Motion for Reconsideration
filed by the petitioner by affirming the assailed Resolution finding no cogent
reason to depart from its earlier findings. Thereafter, petitioner did not file a
Petition for Certiorari before the Court of Appeals questioning the latest
NLRC resolution. Instead, he merely filed a Supplemental
Memorandum Ad Cautelam assailing the same.

On 19 January 2005, the Court of Appeals promulgated a
Decision
[19]
affirming the Decision of the NLRC, both with respect to the
validity of respondents retirement and petitioners liability for the balance
of respondents retirement benefits.

Only the respondent, however, filed a Motion for Reconsideration
of the Court of Appeals decision while the petitioner interjected an
Opposition thereto with Manifestation Ad Cautelam posing its objection
to respondents Motion for Reconsideration and reiterating the arguments
previously raised in its Supplemental Memorandum Ad Cautelam.
[20]


Finding no matter which will compel the modification or reversal of
its earlier Decision, the Court of Appeals denied respondents Motion for
Reconsideration in a Resolution
[21]
dated 7 December 2005.

Having lost her case in the appellate court, respondent opted to accept
the adverse judgment and no longer questioned the same. Instead, it was the
petitioner who now appeared unsatisfied with the findings of the NLRC, as
affirmed by the Court of Appeals, that it was still liable for the balance of
respondents retirement benefits in the sum of P64,680.00. Hence, this
instant Petition for Review on Certiorari, raising this sole issue:

WHETHER OR NOT THE PETITIONER IS LIABLE FOR THE
BALANCE OF RETIREMENT BENEFITS AS ADJUDGED BY THE
NLRC AND AFFIRMED BY THE COURT OF APPEALS.


We are mindful that the petitioner had initially manifested its
opposition to the NLRC ruling that it is still liable for the deficiency in
retirement benefits due the respondent by timely interposing a Motion for
Reconsideration thereof. Convincingly, however, when the NLRC denied
its Motion for Reconsideration, petitioner obviously no longer objected to
the award, as it did not take any further action thereon. Such was a
serious procedural lapse warranting the dismissal of the instant case.


As admitted by the petitioner, it received a copy of the NLRC
Resolution dated 19 April 2004 denying its Motion for Reconsideration
on 13 July 2004.
[22]
It had, therefore, until 13 September 2004
[23]
to file a
Petition for Certiorari before the Court of Appeals,
[24]
but failed to do
so. Instead, it was the respondent who timely assailed the adverse
decision before the appellate court.

In Industrial Management International Development Corporation v.
National Labor Relations Commission,
[25]
we have ruled that:

It is an elementary principle of procedure that the
resolution of the court in a given issue as embodied in
the dispositive part of a decision or order is the controlling
factor as to settlement of rights of the parties. Once a decision
or order becomes final and executory, it is removed from the
power or jurisdiction of the court which rendered it to further
alter or amend it. It thereby becomes immutable and unalterable
and any amendment or alteration which substantially affects a
final and executoryjudgment is null and void for lack of
jurisdiction, including the entire proceedings held for that
purpose. An order of execution which varies the tenor of the
judgment or exceeds the terms thereof is a nullity. (Emphasis
supplied.)


Irrefragably, the Resolution of the NLRC dated 19 April 2004,
denying petitioners Motion for Reconsideration of the earlier NLRC
Resolution dated 18 December 2003, which ordered petitioner to pay
respondent the balance of her retirement benefits, already became final
and executory. By failing to file a Petition forCertiorari after the receipt of
the 19 April 2004 Resolution, petitioner is deemed to have acquiesced to the
adverse judgment. Further, it cannot be convincingly argued that the
Petition for Certiorari filed by the respondent also inured to the benefit of
the petitioner, for not only are their interests separate and distinct, but they
are completely in conflict with each other.
[26]


To further underscore the significance of timely assailing an
adverse decision, we have thus ruled in Itogon-Suyoc Mines Inc. v.
National Labor Relations Commission
[27]
that:

The rule is well-settled that a party cannot impugn the correctness of
a judgment not appealed from by him; and while he may make counter
assignment of errors, he can do so only to sustain the judgment on
other grounds but not to seek modification or reversal thereof, for in
such case, he must appeal. (Emphasis supplied.)


Stated differently, a party who does not appeal
[28]
from a judgment
can no longer seek modification or reversal of the same. He may oppose the
appeal of the other party only on grounds consistent with the
judgment. Since the petitioner in the case at bar failed to question the
finding of the NLRC that it was still liable for the balance of respondents
retirement benefits, the same had therefore long become final
and executory and it can no longer impugn the same in this action.

Considering that the judgment is already final and executory against
the party who does not appeal,
[29]
then the winning party already acquired
vested rights by virtue of said judgment. Time and again, we never fail to
press the dictum that just as the losing party has the privilege to file an
appeal within the prescribed period, so does the winner also have the
correlative right to enjoy the finality of the decision.
[30]


It also bears to emphasize that in respondents Petition
for Certiorari before the Court of Appeals, the issues extensively discussed
by the parties were limited to whether respondents retirement violated her
security of tenure and thus amounted to illegal dismissal and whether the
petitioners retirement plan is valid and binding on the
respondent. Petitioner only resurrected its objection to the Order of the
NLRC for the payment of the balance of respondents retirement benefits in
an Opposition with Manifestation Ad Cautelam,
[31]
which cannot be deemed
a substitute for a Petition for Certiorari.

Consequently, we are already without jurisdiction to take
cognizance of the present Petition and resolve the substantive issues
raised herein lest we transgress the well-established statutory and
jurisprudential principles succinctly laid above. While in the review of
cases, we relax procedural rules to serve substantial justice, we do so only
based on exceptional grounds or under extraordinary
circumstances.
[32]
Petitioner failed to establish any exceptional grounds or
extraordinary circumstances that may warrant the relaxation of the
procedural rules. Neither did petitioner even bother to explain its failure
to question the adverse NLRC Resolution, a procedural course of
undiscounted significance, the omission of which throws the entire case
into a travesty, as what happened in the case at bar.

Having resolved the instant Petition, we now proceed to address the
Manifestation and Supplemental Memorandum, filed by respondent on 17
May 2007, calling our attention to the recent Decision of the First
Division of this Court in Alpha
C. Jaculbe v. Silliman University,
[33]
promulgated last 16 March
2007. Based onJaculbe, respondent prays for the reversal of the NLRC
and the Court of Appeals Decisions finding that he was not illegally
dismissed by petitioner.

Indeed, both Jaculbe and herein respondent were retired by herein
petitioner based on the same retirement plan, we however find that the
ruling of the First Division of this Court in Jaculbe bears no significance
to the case at bar since the factual and procedural circumstances attendant
in herein petition are different and distinct from those in Jaculbe and to
yield to respondents plea for substantial justice would cause serious
transgression of well-settled procedural principles.

Firstly, in the said case, Jaculbe timely raised the adverse decision
of the Court of Appeals (which affirmed the finding of the NLRC
that Jaculbe was not illegally dismissed by the university). In contrast,
respondent in the case at bar no longer appealed the Court of Appeals
Decision dated 19 January 2005, which ruled that he was not illegally
dismissed by petitioner and merely ordered petitioner to pay the balance
of respondents retirement benefits. Instead, it was the petitioner which
interposed the present Petition assailing the appellate courts finding that
it still has to pay additional retirement benefits to the respondent.

Secondly, the issues raised in Jaculbe were different from the issue
raised in the instant Petition. In that case, the following questions were
posed to and squarely resolved by the First Division: (1)
whether Jaculbes separation from employment was illegal; and (2)
whether the provision on the universitys retirement plan providing for the
employees compulsory retirement after 35 years of uninterrupted service
is valid. On the other hand, the sole issue presented for our resolution in
the present petition is whether the petitioner is still liable for additional
retirement benefits to the respondent as found by the NLRC and affirmed
by the Court of Appeals.

Thirdly, no entry of judgment has yet been made in Jaculbe, thus, it
has not yet become final and executory so as to serve as a jurisprudential
precedent to the present case. Until and unless the same has become final
and executory, the First Division still has jurisdiction to affirm, modify, or
reverse its Decision in Jaculbe, depending on how it shall weigh and
resolve the pending Motion for Reconsideration therein.

And finally, as we are denying the petitioners prayer for the
reversal of the Court of Appeals Decision (insofar as it holds petitioner
liable for the balance of respondents retirement benefits) on the ground
of serious procedural defect, we are also constrained to disallow for the
same reason the respondents prayer in her Manifestation and
Supplemental Memorandum to reverse the NLRC and the Court of
Appeals Decisions (as regards their finding that respondent was not
illegally dismissed).

In sum, the finding of the NLRC holding the petitioner liable for
additional compensation benefits is binding on petitioner; in the same way
that the finding of the Court of Appeals that respondent was not illegally
dismissed is conclusive on respondent, both findings having become final
and executory. By the petitioner and respondents inaction and presumed
acquiescence to the conclusions of the NLRC and the Court of Appeals,
respectively, they had allowed the same to attain finality. Not having been
timely appealed, these issues are already beyond our jurisdiction to
resolve, and the findings of the NLRC and the Court of Appeals as to
them can no longer be disturbed without violating the fundamental legal
principle that, on the ground of public policy, final
and executory judgment is immutable and unalterable and may no longer
be modified in any respect, even if the modification is meant to correct
erroneous conclusions of fact and law, regardless of whether it will be
made by the court that rendered it or by the highest court of the land.
[34]


We cannot condone the practice of parties who, either by their own
or their counsels inadvertence, have allowed a judgment to become final
and executory and, after the same had reached finality, seeks the shield of
substantial justice to assail it. The finality of decision is a jurisdictional
event which cannot be made to depend on the convenience of the
party. To rule otherwise would completely negate the purpose of the rule
on completeness of service, which is to place the date of receipt of
pleadings, judgment and processes beyond the power of the party to
determine at his pleasure.
[35]


WHEREFORE, IN VIEW OF THE FOREGOING, the instant
Petition is DENIED. The Decision dated 19 January 2005, and the
Resolution dated 7 December 2005, rendered by the Court of Appeals in
CA-G.R. SP No. 84023, are hereby AFFIRMED. Costs against the
petitioner.







































PHILIPPINE DEPOSIT
INSURANCE CORPORATION,
Petitioner,


- versus



CITIBANK, N.A. and BANK
OFAMERICA, S.T. & N.A.,
Respondents.


G.R. No. 170290

Present:

VELASCO, JR., J., Chairperson,
PERALTA,
ABAD,
MENDOZA, and
REYES,
!
JJ.


Promulgated:

April 11, 2012

x --------------------------------------------------------------------------------------- x

D E C I S I O N


MENDOZA, J.:

This is a petition for review under Rule 45 of the 1997 Revised Rules
of Civil Procedure, assailing the October 27, 2005 Decision
[1]
of the Court of
Appeals (CA)in CA-G.R. CV No. 61316, entitled Citibank, N.A. and Bank
of America, S.T. & N.A. v. Philippine Deposit Insurance Corporation.


The Facts

Petitioner Philippine Deposit Insurance Corporation (PDIC) is a
government instrumentality created by virtue of Republic Act (R.A.) No.
3591, as amended by R.A. No. 9302.
[2]


Respondent Citibank, N.A. (Citibank) is a banking corporation while
respondent Bank of America, S.T. & N.A. (BA) is a national banking
association, both of which are duly organized and existing under the laws of
the United States of America and duly licensed to do business in
the Philippines, with offices in Makati City.
[3]


In 1977, PDIC conducted an examination of the books of account of
Citibank. It discovered that Citibank, in the course of its banking business,
from September 30, 1974 to June 30, 1977, received from its head office and
other foreign branches a total of P11,923,163,908.00 in dollars, covered by
Certificates of Dollar Time Deposit that were interest-bearing with
corresponding maturity dates.
[4]
These funds, which were lodged in the
books of Citibank under the account Their Account-Head Office/Branches-
Foreign Currency, were not reported to PDIC as deposit liabilities that were
subject to assessment for insurance.
[5]
As such, in a letter datedMarch 16,
1978, PDIC assessed Citibank for deficiency in the sum of P1,595,081.96.
[6]


Similarly, sometime in 1979, PDIC examined the books of accounts
of BA which revealed that from September 30, 1976 to June 30, 1978, BA
received from its head office and its other foreign branches a total
of P629,311,869.10 in dollars, covered by Certificates of Dollar Time
Deposit that were interest-bearing with corresponding maturity dates and
lodged in their books under the account Due to Head
Office/Branches.
[7]
Because BA also excluded these from its deposit
liabilities, PDIC wrote to BA on October 9, 1979, seeking the remittance
of P109,264.83 representing deficiency premium assessments for dollar
deposits.
[8]


Believing that litigation would inevitably arise from this dispute,
Citibank and BA each filed a petition for declaratory relief before the Court
of First Instance (now the Regional Trial Court) of Rizal on July 19,
1979 and December 11, 1979, respectively.
[9]
In their petitions, Citibank
and BA sought a declaratory judgment stating that the money placements
they received from their head office and other foreign branches were not
deposits and did not give rise to insurable deposit liabilities under Sections 3
and 4 of R.A. No. 3591 (the PDIC Charter) and, as a consequence, the
deficiency assessments made by PDIC were improper and erroneous.
[10]
The
cases were then consolidated.
[11]


On June 29, 1998, the Regional Trial Court, Branch 163, Pasig
City (RTC) promulgated its Decision
[12]
in favor of Citibank and BA, ruling
that the subject money placements were not deposits and did not give rise to
insurable deposit liabilities, and that the deficiency assessments issued by
PDIC were improper and erroneous. Therefore, Citibank and BA were not
liable to pay the same. The RTC reasoned out that the money placements
subject of the petitions were not assessable for insurance purposes under the
PDIC Charter because said placements were deposits made outside of
the Philippines and, under Section 3.05(b) of the PDIC Rules and
Regulations,
[13]
such deposits are excluded from the computation of deposit
liabilities. Section 3(f) of the PDIC Charter likewise excludes from the
definition of the term deposit any obligation of a bank payable at the
office of the bank located outside the Philippines. The RTC further stated
that there was no depositor-depository relationship between the respondents
and their head office or other branches. As a result, such deposits were not
included as third-party deposits that must be insured. Rather, they were
considered inter-branch deposits which were excluded from the assessment
base, in accordance with the practice of the United States Federal Deposit
Insurance Corporation (FDIC) after which PDIC was patterned.

Aggrieved, PDIC appealed to the CA which affirmed the ruling of the
RTC in its October 27, 2005 Decision. In so ruling, the CA found that the
money placements were received as part of the banks internal dealings by
Citibank and BA as agents of their respective head offices. This showed that
the head office and the Philippine branch were considered as the same
entity. Thus, no bank deposit could have arisen from the transactions
between the Philippine branch and the head office because there did not
exist two separate contracting parties to act as depositor and
depositary.
[14]
Secondly, the CA called attention to the purpose for the
creation of PDIC which was to protect the deposits of depositors in
the Philippines and not the deposits of the same bank through its head office
or foreign branches.
[15]
Thirdly, because there was no law or jurisprudence
on the treatment of inter-branch deposits between the Philippine branch of a
foreign bank and its head office and other branches for purposes of
insurance, the CA was guided by the procedure observed by the FDIC which
considered inter-branch deposits as non-assessable.
[16]
Finally, the CA cited
Section 3(f) of R.A. No. 3591, which specifically excludes obligations
payable at the office of the bank located outside the Philippines from the
definition of a deposit or an insured deposit. Since the subject money
placements were made in the respective head offices of Citibank and BA
located outside the Philippines, then such placements could not be subject to
assessment under the PDIC Charter.
[17]


Hence, this petition.

The Issues

PDIC raises the issue of whether or not the subject dollar deposits are
assessable for insurance purposes under the PDIC Charter with the following
assigned errors:

A.

The appellate court erred in ruling that the subject dollar
deposits are money placements, thus, they are not subject to
the provisions of Republic Act No. 6426 otherwise known as
the Foreign Currency Deposit Act of the Philippines.

B.

The appellate court erred in ruling that the subject dollar
deposits are not covered by the PDIC insurance.
[18]



Respondents similarly identify only one issue in this case:

Whether or not the money placements subject matter of
these petitions are assessable for insurance purposes under
the PDIC Act.
[19]

The sole question to be resolved in this case is whether the funds
placed in the Philippine branch by the head office and foreign branches of
Citibank and BA are insurable deposits under the PDIC Charter and, as such,
are subject to assessment for insurance premiums.


The Courts Ruling

The Court rules in the negative.

A branch has no separate legal personality;
Purpose of the PDIC

PDIC argues that the head offices of Citibank and BA and their
individual foreign branches are separate and independent entities. It insists
that under American jurisprudence, a banks head office and its branches
have a principal-agent relationship only if they operate in the same
jurisdiction. In the case of foreign branches, however, no such relationship
exists because the head office and said foreign branches are deemed to be
two distinct entities.
[20]
Under Philippine law, specifically, Section 3(b) of
R.A. No. 3591, which defines the terms bank and banking institutions,
PDIC contends that the law treats a branch of a foreign bank as a separate
and independent banking unit.
[21]


The respondents, on the other hand, initially point out that the factual
findings of the RTC and the CA, with regard to the nature of the money
placements, the capacity in which the same were received by the
respondents and the exclusion of inter-branch deposits from assessment, can
no longer be disturbed and should be accorded great weight by this
Court.
[22]
They also argue that the money placements are not deposits. They
postulate that for a deposit to exist, there must be at least two parties a
depositor and a depository each with a legal personality distinct from the
other. Because the respondents respective head offices and their branches
form only a single legal entity, there is no creditor-debtor relationship and
the funds placed in the Philippine branch belong to one and the same
bank. A bank cannot have a deposit with itself.
[23]


This Court is of the opinion that the key to the resolution of this
controversy is the relationship of the Philippine branches of Citibank and
BA to their respective head offices and their other foreign branches.

The Court begins by examining the manner by which a foreign
corporation can establish its presence in the Philippines. It may choose to
incorporate its own subsidiary as a domestic corporation, in which case such
subsidiary would have its own separate and independent legal personality to
conduct business in the country. In the alternative, it may create a branch in
the Philippines, which would not be a legally independent unit, and simply
obtain a license to do business in the Philippines.
[24]


In the case of Citibank and BA, it is apparent that they both did not
incorporate a separate domestic corporation to represent its business
interests in thePhilippines. Their Philippine branches are, as the name
implies, merely branches, without a separate legal personality from their
parent company, Citibank and BA. Thus, being one and the same entity, the
funds placed by the respondents in their respective branches in
the Philippines should not be treated as deposits made by third parties
subject to deposit insurance under the PDIC Charter.

For lack of judicial precedents on this issue, the Court seeks guidance
from American jurisprudence. In the leading case of Sokoloff v. The National
City Bank ofNew York,
[25]
where the Supreme Court of New York held:

Where a bank maintains branches, each branch becomes a separate
business entity with separate books of account. A depositor in one
branch cannot issue checks or drafts upon another branch or
demand payment from such other branch, and in many other
respects the branches are considered separate corporate entities
and as distinct from one another as any other bank. Nevertheless,
when considered with relation to the parent bank they are not
independent agencies; they are, what their name imports, merely
branches, and are subject to the supervision and control of the parent
bank, and are instrumentalities whereby the parent bank carries on
its business, and are established for its own particular purposes,
and their business conduct and policies are controlled by the
parent bank and their property and assets belong to the parent
bank, although nominally held in the names of the particular
branches. Ultimate liability for a debt of a branch would rest upon
the parent bank.[Emphases supplied]


This ruling was later reiterated in the more recent case of United
States v. BCCI Holdings Luxembourg
[26]
where the United States Court of
Appeals, District of Columbia Circuit, emphasized that while individual
bank branches may be treated as independent of one another, each branch,
unless separately incorporated, must be viewed as a part of the parent bank
rather than as an independent entity.

In addition, Philippine banking laws also support the conclusion that
the head office of a foreign bank and its branches are considered as one legal
entity. Section 75 of R.A. No. 8791 (The General Banking Law of 2000)
and Section 5 of R.A. No. 7221 (An Act Liberalizing the Entry of Foreign
Banks) both require the head office of a foreign bank to guarantee the
prompt payment of all the liabilities of its Philippine branch, to wit:

Republic Act No. 8791:

Sec. 75. Head Office Guarantee. In order to provide effective
protection of the interests of the depositors and other creditors of
Philippine branches of a foreign bank, the head office of such
branches shall fully guarantee the prompt payment of all liabilities
of its Philippine branch.

Residents and citizens of the Philippines who are creditors of
a branch in the Philippines of foreign bank shall have preferential
rights to the assets of such branch in accordance with the existing
laws.


Republic Act No. 7721:

Sec. 5. Head Office Guarantee. The head office of foreign bank
branches shall guarantee prompt payment of all liabilities of its
Philippine branches.


Moreover, PDIC must be reminded of the purpose for its creation, as
espoused in Section 1 of R.A. No. 3591 (The PDIC Charter) which provides:

Section 1. There is hereby created a Philippine Deposit Insurance
Corporation hereinafter referred to as the Corporation which
shall insure, as herein provided, the deposits of all banks which are
entitled to the benefits of insurance under this Act, and which shall
have the powers hereinafter granted.

The Corporation shall, as a basic policy, promote and safeguard the
interests of the depositing public by way of providing permanent
and continuing insurance coverage on all insured deposits.


R.A. No. 9576, which amended the PDIC Charter, reaffirmed the
rationale for the establishment of the PDIC:

Section 1. Statement of State Policy and Objectives. - It is hereby
declared to be the policy of the State to strengthen the mandatory
deposit insurance coverage system to generate, preserve, maintain
faith and confidence in the country's banking system, and protect it
from illegal schemes and machinations.

Towards this end, the government must extend all means and
mechanisms necessary for the Philippine Deposit Insurance
Corporation to effectively fulfill its vital task of promoting and
safeguarding the interests of the depositing public by way of
providing permanent and continuing insurance coverage on all
insured deposits, and in helping develop a sound and stable
banking system at all times.
The purpose of the PDIC is to protect the depositing public in the
event of a bank closure. It has already been sufficiently established
by US jurisprudence and Philippine statutes that the head office shall answer
for the liabilities of its branch. Now, suppose the Philippine branch of
Citibank suddenly closes for some reason. Citibank N.A. would then be
required to answer for the deposit liabilities of Citibank Philippines. If the
Court were to adopt the posture of PDIC that the head office and the branch
are two separate entities and that the funds placed by the head office and its
foreign branches with the Philippine branch are considered deposits within
the meaning of the PDIC Charter, it would result to the incongruous
situation where Citibank, as the head office, would be placed in the
ridiculous position of having to reimburse itself, as depositor, for the losses
it may incur occasioned by the closure of Citibank Philippines. Surely our
law makers could not have envisioned such a preposterous circumstance
when they created PDIC.

Finally, the Court agrees with the CA ruling that there is nothing in
the definition of a bank and a banking institution in Section 3(b) of the
PDIC Charter
[27]
which explicitly states that the head office of a foreign bank
and its other branches are separate and distinct from their Philippine
branches.

There is no need to complicate the matter when it can be solved by
simple logic bolstered by law and jurisprudence. Based on the foregoing, it
is clear that the head office of a bank and its branches are considered as one
under the eyes of the law. While branches are treated as separate business
units for commercial and financial reporting purposes, in the end, the head
office remains responsible and answerable for the liabilities of its branches
which are under its supervision and control. As such, it is unreasonable for
PDIC to require the respondents, Citibank and BA, to insure the money
placements made by their home office and other branches. Deposit
insurance is superfluous and entirely unnecessary when, as in this case, the
institution holding the funds and the one which made the placements are one
and the same legal entity.

Funds not a deposit under the definition
of the PDIC Charter;
Excluded from assessment

PDIC avers that the funds are dollar deposits and not money
placements. Citing R.A. No. 6848, it defines money placement as a deposit
which is received with authority to invest. Because there is no evidence to
indicate that the respondents were authorized to invest the subject dollar
deposits, it argues that the same cannot be considered money
placements.
[28]
PDIC then goes on to assert that the funds received by
Citibank and BA are deposits, as contemplated by Section 3(f) of R.A. No.
3591, for the following reasons: (1) the dollar deposits were received by
Citibank and BA in the course of their banking operations from their
respective head office and foreign branches and were recorded in their books
as Account-Head Office/Branches-Time Deposits pursuant to Central
Bank Circular No. 343 which implements R.A. No. 6426; (2) the dollar
deposits were credited as dollar time accounts and were covered by
Certificates of Dollar Time Deposit which were interest-bearing and payable
upon maturity, and (3) the respondents maintain 100% foreign currency
cover for their deposit liability arising from the dollar time deposits as
required by Section 4 of R.A. No. 6426.
[29]


To refute PDICs allegations, the respondents explain the inter-branch
transactions which necessitate the creation of the accounts or placements
subject of this case. When the Philippine branch needs to procure foreign
currencies, it will coordinate with a branch in another country which handles
foreign currency purchases. Both branches have existing accounts with their
head office and when a money placement is made in relation to the
acquisition of foreign currency from the international market, the amount is
credited to the account of the Philippine branch with its head office while the
same is debited from the account of the branch which facilitated the
purchase. This is further documented by the issuance of a certificate of time
deposit with a stated interest rate and maturity date. The interest rate
represents the cost of obtaining the funds while the maturity date represents
the date on which the placement must be returned. On the maturity date, the
amount previously credited to the account of the Philippine branch is
debited, together with the cost for obtaining the funds, and credited to the
account of the other branch. The respondents insist that the interest rate and
maturity date are simply the basis for the debit and credit entries made by
the head office in the accounts of its branches to reflect the inter-branch
accommodation.
[30]
As regards the maintenance of currency cover over the
subject money placements, the respondents point out that they maintain
foreign currency cover in excess of what is required by law as a matter of
prudent banking practice.
[31]


PDIC attempts to define money placement in order to impugn the
respondents claim that the funds received from their head office and other
branches are money placements and not deposits, as defined under the PDIC
Charter. In the process, it loses sight of the important issue in this case,
which is the determination of whether the funds in question are subject to
assessment for deposit insurance as required by the PDIC Charter. In its
struggle to find an adequate definition of money placement, PDIC
desperately cites R.A. No. 6848, The Charter of the Al-Amanah Islamic
Investment Bank of the Philippines. Reliance on the said law is unfounded
because nowhere in the law is the term money placement
defined. Additionally, R.A. No. 6848 refers to the establishment of an
Islamic bank subject to the rulings of Islamic Sharia to assist in the
development of the Autonomous Region of Muslim Mindanao
(ARMM),
[32]
making it utterly irrelevant to the case at bench. Since
Citibank and BA are neither Islamic banks nor are they located anywhere
near the ARMM, then it should be painfully obvious that R.A. No. 6848
cannot aid us in deciding this case.

Furthermore, PDIC heavily relies on the fact that the respondents
documented the money placements with certificates of time deposit to
simply conclude that the funds involved are deposits, as contemplated by the
PDIC Charter, and are consequently subject to assessment for deposit
insurance. It is this kind of reasoning that creates non-existent obscurities in
the law and obstructs the prompt resolution of what is essentially a
straightforward issue, thereby causing this case to drag on for more than
three decades.

Noticeably, PDIC does not dispute the veracity of the internal
transactions of the respondents which gave rise to the issuance of the
certificates of time deposit for the funds the subject of the present
dispute. Neither does it question the findings of the RTC and the CA that
the money placements were made, and were payable, outside of
the Philippines, thus, making them fall under the exclusions to deposit
liabilities. PDIC also fails to impugn the truth of the testimony of John
David Shaffer, then a Fiscal Agent and Head of the Assessment Section of
the FDIC, that inter-branch deposits were excluded from the assessment
base. Therefore, the determination of facts of the lower courts shall be
accepted at face value by this Court, following the well-established principle
that factual findings of the trial court, when adopted and confirmed by the
CA, are binding and conclusive on this Court, and will generally not be
reviewed on appeal.
[33]


As explained by the respondents, the transfer of funds, which resulted
from the inter-branch transactions, took place in the books of account of the
respective branches in their head office located in the United States. Hence,
because it is payable outside of the Philippines, it is not considered a deposit
pursuant to Section 3(f) of the PDIC Charter:

Sec. 3(f) The term deposit means the unpaid balance of money or
its equivalent received by a bank in the usual course of business
and for which it has given or is obliged to give credit to a
commercial, checking, savings, time or thrift account or which is
evidenced by its certificate of deposit, and trust funds held by such
bank whether retained or deposited in any department of said bank
or deposit in another bank, together with such other obligations of
a bank as the Board of Directors shall find and shall prescribe by
regulations to be deposit liabilities of the Bank; Provided, that any
obligation of a bank which is payable at the office of the bank located
outside of the Philippines shall not be a deposit for any of the
purposes of this Act or included as part of the total deposits or of the
insured deposits; Provided further, that any insured bank which is
incorporated under the laws of the Philippines may elect to include
for insurance its deposit obligation payable only at such branch.
[Emphasis supplied]

The testimony of Mr. Shaffer as to the treatment of such inter-branch
deposits by the FDIC, after which PDIC was modelled, is also
persuasive. Inter-branch deposits refer to funds of one branch deposited in
another branch and both branches are part of the same parent company and it
is the practice of the FDIC to exclude such inter-branch deposits from a
banks total deposit liabilities subject to assessment.
[34]


All things considered, the Court finds that the funds in question are
not deposits within the definition of the PDIC Charter and are, thus,
excluded from assessment.

WHEREFORE, the petition is DENIED. The October 27, 2005
Decision of the Court of Appeals in CA-G.R. CV No. 61316
is AFFIRMED.














SANBERS v vERBIAN0 II - wala pa, uown yung law phil eh wala sa sc site

uARCIA vS C0NELEC

SUBIC BAY METROPOLITAN AUTHORITY, petitioner,
vs. COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA
and CATALINO A. CALIMBAS,respondents.
D E C I S I O N
PANGANIBAN, J.:
The 1987 Constitution is unique in many ways. For one thing, it
institutionalized people power in law-making. Learning from the bitter
lesson of completely surrendering to Congress the sole authority to
make, amend or repeal laws, the present Constitution concurrently
vested such prerogatives in the electorate by expressly recognizing their
residual and sovereign authority to ordain legislation directly through the
concepts and processes of initiative and of referendum.
In this Decision, this Court distinguishes referendum from initiative
and discusses the practical and legal implications of such differences. It
also sets down some guidelines in the conduct and implementation of
these two novel and vital features of popular democracy, as well as
settles some relevant questions on jurisdiction -- all with the purpose of
nurturing, protecting and promoting the people's exercise of direct
democracy.
In this action for certiorari and prohibition, petitioner seeks to nullify
the respondent Commission on Elections' Ruling dated April 17, 1996
and Resolution No. 2848 promulgated on June 27, 1996
[1]
denying
petitioner's plea to stop the holding of a local initiative and referendum
on the proposition to recall Pambayang Kapasyahan Blg. 10, Serye
1993, of the Sangguniang Bayan of Morong, Bataan.
The Facts
On March 13, 1992, Congress enacted Republic Act No. 7227 (The
Bases Conversion and Development Act of 1992), which among others,
provided for the creation of the Subic Special Economic Zone, thus:
"Sec. 12. Subic Special Economic Zone. - Subject to the concurrence by
resolution of the Sangguniang Panlungsod of the City of Olongapo and the
Sangguniang Bayan of the Municipalities of Subic, Morong and Hermosa, there
is hereby created a Special Economic and Free-port Zone consisting of the City
of Olongapo and the Municipality of Subic, Province of Zambales, the lands
occupied by the Subic Naval Base and its contiguous extensions as embraced,
covered and defined by the 1947 Military Bases Agreement between the
Philippines and the United States of America as amended, and within the
territorial jurisdiction of the Municipalities of Morong and Hermosa, Province
of Bataan, hereinafter referred to as the Subic Special Economic Zone whose
metes and bounds shall be delineated in a proclamation to be issued by the
President of the Philippines. Within thirty (30) days after the approval of this
Act, each local government unit shall submit its resolution of concurrence to
join the Subic Special Economic Zone to the Office of the
President. Thereafter, the President of the Philippines shall issue a
proclamation defining the metes and bounds of the zone as provided herein."
(Underscoring supplied)
RA 7227 likewise created petitioner to implement the declared
national policy of converting the Subic military reservation into
alternative productive uses.
[2]
Petitioner was organized with an
authorized capital stock of P20 billion which was fully subscribed and
fully paid up by the Republic of the Philippines with, among other
assets, "(a)ll lands embraced, covered and defined in Section 12 hereof,
as well as permanent improvements and fixtures upon proper inventory
not otherwise alienated, conveyed, or transferred to another
government agency.
[3]

On November 24, 1992, the American navy turned over
the Subic military reservation to the Philippine
government. Immediately, petitioner commenced the implementation of
its task, particularly the preservation of the seaports, airports, buildings,
houses and other installations left by the American navy.
In April 1993, the Sangguniang Bayan of Morong, Bataan passed
a Pambayang Kapasyahan Bilang 10, Serye 1993, expressing therein
its absolute concurrence, as required by said Sec. 12 of RA 7227, to
join the Subic Special Economic Zone. On September 5, 1993,
the Sangguniang Bayan of Morong submitted Pambayang Kapasyahan
Bilang 10, Serye 1993 to the Office of the President.
On May 24, 1993, respondents Garcia, Calimbas and their
companions filed a petition with the Sangguniang Bayan of Morong
to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The petition
prayed for the following:
"I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg.
10 Serye 1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa SSEFZ
na walang kundisyon.
II. Palitan ito ng isang Pambayang kapasiyahan na aanib lamang ang
Morong sa SSEFZ kung ang mga sumusunod na kondisyones ay ipagkakaloob,
ipatutupad at isasagawa para sa kapakanan at interes ng Morong at Bataan:
(A) Ibalik sa Bataan ang 'Virgin Forests' -- isang bundok na hindi nagagalaw at
punong-puno ng malalaking punong-kahoy at iba't-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEFZ at ibalik ito sa Bataan.
(K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta
ng salaping ipinagkaloob ng pamahalaang national o 'Internal Revenue
Allotment' (IRA) sa Morong, Hermosa at sa Lalawigan.
(D) Payagang magtatag rin ng sariling 'special economic zones' ang bawat
bayan ng Morong, Hermosa at Dinalupihan.
(E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng
SBMA.
(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga
lupa.
(H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at
bukod dito sa magbukas pa ng pinto sa hangganan naman ng Morong at
Hermosa upang magkaroon ng pagkakataong umunlad rin ang mga nasabing
bayan, pati na rin ng iba pang bayan ng Bataan.
(I) Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-
Tasig-Dinalupihan para sa kabutihan ng mga taga-Bataan at tuloy makatulong
sa pangangalaga ng mga kabundukan.
(J) Magkakaroon ng sapat na representasyon sa pamunuan ng SBMA ang
Morong, Hermosa at Bataan."
The Sangguniang Bayan of Morong acted upon the petition of
respondents Garcia, Calimbas, et al. by promulgating Pambayang
Kapasyahan Blg. 18, Serye 1993, requesting Congress of the
Philippines to amend certain provisions of R.A. No. 7227, particularly
those concerning the matters cited in items (A), (B), (K), (E) and (G) of
private respondents' petition. The Sangguniang Bayan of Morong also
informed respondents that items (D) and (H) had already been referred
to and favorably acted upon by the government agencies concerned,
such as the Bases Conversion Development Authority and the Office of
the President.
Not satisfied, and within 30 days from submission of their petition,
herein respondents resorted to their power of initiative under the Local
Government Code of 1991,
[4]
Sec. 122 paragraph (b) of which provides
as follows:
"Sec. 122. Procedure in Local Initiative. -
x x x x x x x x x
(b) If no favorable action thereon is taken by the sanggunian concerned, the
proponents, through their duly authorized and registered representatives, may
invoke their power of initiative, giving notice thereof to the sanggunian
concerned.
x x x x x x x x x."
On July 6, 1993, respondent Commission En Banc in Comelec
Resolution No. 93-1623 denied the petition for local initiative by herein
private respondents on the ground that the subject thereof was merely a
resolution (pambayang kapasyahan) and not an ordinance. On July 13,
1993, public respondent Comelec En Banc (thru Comelec Resolution
no. 93-1676) further directed its Provincial Election Supervisor to hold
action on the authentication of signatures being solicited by private
respondents.
On August 15, 1993, private respondents instituted a petition
for certiorari and mandamus
[5]
before this Court against the Commission
on Elections and the Sangguniang Bayan of Morong, Bataan, to set
aside Comelec Resolution No. 93-1623 insofar as it disallowed the
conduct of a local initiative to annul Pambayang Kapasyahan Bilang 10,
Serye 1993, and Comelec Resolution No. 93-1676 insofar as it
prevented the Provincial Election Supervisor of Bataan from proceeding
with the authentication of the required number of signatures in support
of the initiative and the gathering of signatures.
On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President
of the Philippines issued proclamation No. 532 defining the metes and
bounds of the SSEZ. Said proclamation included in the SSEZ all the
lands within the former Subic Naval Base, including Grande Island and
that portion of the former naval base within the territorial jurisdiction of
the Municipality of Morong.
On June 18, 1996, respondent Comelec issued Resolution No.
2845, adopting therein a "Calendar of Activities for local referendum on
certain municipal ordinance passed by the Sangguniang Bayan of
Morong, Bataan", and which indicated, among others, the scheduled
referendum Day (July 27, 1996, Saturday). On June 27, 1996, the
Comelec promulgated the assailed Resolution No. 2848 providing for
"the rules and guidelines to govern the conduct of the referendum
proposing to annul or repeal Kapasyahan Blg. 10, Serye 1993 of
the Sangguniang Bayan of Morong, Bataan".
On July 10, 1996, petitioner instituted the present petition
for certiorari and prohibition contesting the validity of Resolution No.
2848 and alleging, inter alia, that public respondent "is intent on
proceeding with a local initiative that proposes an amendment of a
national law. x x x"
The Issues
The petition
[6]
presents the following "argument":
"Respondent Commission on Elections committed grave abuse of discretion
amounting to lack of jurisdiction in scheduling a local initiative which seeks the
amendment of a national law."
In his Comment, private respondent Garcia claims that (1) petitioner
has failed to show the existence of an actual case or controversy; (2) x x
x petitioner seeks to overturn a decision/judgment which has long
become final and executory; (3) x x x public respondent has not abused
its discretion and has in fact acted within its jurisdiction; (and) (4) x x x
the concurrence of local government units is required for the
establishment of the Subic Special Economic Zone."
Private respondent Calimbas, now the incumbent Mayor of Morong,
in his Reply (should be Comment) joined petitioner's cause because
"(a)fter several meetings with petitioner's Chairman and staff and after
consultation with legal counsel, respondent Calimbas discovered that
the demands in the petition for a local initiative/referendum were not
legally feasible."
[7]

The Solicitor General, as counsel for public respondent, identified
two issues, as follows:
"1. Whether or not the Comelec can be enjoined from scheduling/conducting
the local intiative proposing to annul Pambayang Kapasyahan Blg. 10, Serye
1993 of the Sangguniang Bayan of Morong, Bataan.
2. Whether or not the Comelec committed grave abuse of discretion in denying
the request of petitioner SBMA to stop the local initiative."
On July 23, 1996, the Court heard oral argument by the parties, after
which, it issued the following resolution:
"The Court Resolved to (1) GRANT the Motion to Admit the Attached
Comment filed by counsel for private respondent Enrique T. Garcia, dated July
22, 1996 and (2) NOTE the: (a) Reply (should be comment) to the petition for
certiorari and prohibition with prayer for temporary restraining order and/or
writ of preliminary injunctiom, filed by counsel for respondent Catalino
Calimbas, dated July 22, 1996; (b) Separate Comments on the petition, filed by:
(b-1) the Solicitor General for respondent Commission on Elections dated July
19, 1996 and (b-2) counsel for private respondent Enrique T. Garcia, dated July
22, 1996 and (c) Manifestation filed by counsel for petitioner dated July 22,
1996.
At the hearing of this case this morning, Atty. Rodolfo O. Reyes appeared and
argued for petitioner Subic Bay Metropolitan Authority (SBMA) while Atty.
Sixto Brillantes for private respondent Enrique T. Garcia, and Atty. Oscar L.
Karaan for respondent Catalino Calimbas. Solicitor General Raul Goco,
Assistant Solicitor General Cecilio O. Estoesta and Solicitor Zenaida
Hernandez-Perez appeared for respondent Commission on Elections with
Solicitor General Goco arguing.
Before the Court adjourned, the Court directed the counsel for both parties to
INFORM this Court by Friday, July 26, 1996, whether or not Commission on
Elections would push through with the initiative/referendum this Saturday, July
27, 1996.
Thereafter, the case shall be considered SUBMITTED for resolution.
At 2:50 p.m. July 23, 1996, the Court received by facsimile transmission an
Order dated also on July 23, 1996 from the respondent Commission on
Elections En Banc inter alia 'to hold in abeyance the scheduled referendum
(initiative) on July 27, 1996 pending resolution of G.R. No. 125416.' In view of
this Order, the petitioner's application for a temporary restraining order and/or
writ of preliminary injunction has become moot and academic and will thus not
be passed upon by this Court at this time. Puno, J., no part due to relationship.
Bellosillo, J., is on leave."
After careful study of and judicious deliberation on the submissions
and arguments of the parties, the Court believes that the issues may be
restated as follows:
(1) Whether this petition "seeks to overturn a decision/judgment which has long
become final and executory"; namely G.R. No. 111230, Enrique Garcia, et al.
vs. Commission on Elections, et al.;
(2) Whether the respondent Comelec committed grave abuse of discretion in
promulgating and implementing its Resolution No. 2848 which "govern(s) the
conduct of the referendum proposing to annul or repeal Pambayang
Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong,
Bataan;" and
(3) Whether the questioned local initiative covers a subject within the powers
of the people of Morong to enact; i.e., whether such initiative "seeks the
amendment of a national law."
First Issue: Bar by Final Judgment
Respondent Garcia contends that this Court had already ruled with
finality in Enrique T. Garcia, et al. vs. Commission on Elections, et.
al.
[8]
on "the very issue raised in (the) petition: whether or not there can
be an initiative by the people of Morong, Bataan on the subject
proposition -- the very same proposition, it bears emphasizing, the
submission of which to the people of Morong, Bataan is now sought to
be enjoined by petitioner x x x".
We disagree. The only issue resolved in the earlier Garcia case is
whether a municipal resolution as contra-distinguished from an
ordinance may be the proper subject of an initiative and/or
referendum. We quote from our said Decision:
[9]

"In light of this legal backdrop, the essential issue to be resolved in the case at
bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of the
Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative.
Respondents take the negative stance as they contend that under the Local
Government Code of 1991 only an ordinance can be the subject of
initiative. They rely on Section 120, Chapter 2, Title XI, Book I of the Local
Government Code of 1991 which provides: 'Local Initiative Defined. -- Local
initiative is the legal process whereby the registered voters of a local
government unit may directly propose, enact, or amend any ordinance.'
We reject respondent's narrow and literal reading of the above provision for it
will collide with the Constitution and will subvert the intent of the lawmakers
in enacting the provisions of the Local Government of 1991 on initiative and
referendum.
The Constitution clearly includes not only ordinances but resolutions as
appropriate subjects of a local initiative. Section 32 of Article VI provides in
luminous language: 'The Congress shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions therefrom, whereby the
people can directly propose and enact laws or approve or reject any act or law
or part thereof passed by the Congress, or local legislative body x x
x'. An act includes a resolution. Black defines an acts 'an expression of will or
purpose . . . it may denote something done . . . as a legislature, including not
merely physical acts, but also decrees, edicts, laws, judgement, resolves,
awards and determination x x x.' It is basic that a law should be construed in
harmony with and not in violation of the Constitution. In line with this
postulates, we held in In Re Guarina that if there is doubt or uncertainly as to
the meaning of the legislative, if the words or provisions are obscure, or if the
enactment is fairly susceptible of two or more construction, that interpretations
will be adopted which will avoid the effect of unconstitutionality, even though
it may be necessary, for this purpose, to disregard the more usual or apparent
import of the language used.' "
Moreover, we reviewed our rollo in said G.R. No. 111230 and we
found that the sole issue presented by the pleadings was the question
of "whether or not a Sangguniang Bayan Resolution can be the
subject of a valid initiative or referendum".
[10]

In the present case, petitioner is not contesting the propriety of
municipal resolution as the form by which these two new constitutional
prerogatives of the people may validly exercised. What is at issue here
is whether Pambayang Kapasyahan Blg. 10, Serye 1993, as worded, is
sufficient in form and substance for submission to the people for their
approval; in fine, whether the Comelec acted properly and juridically in
promulgating and implementing Resolution No. 2848.
Second Issue: Sufficiency of Comelec Resolution No. 2848
The main issue in this case may be re-started thus: Did respondent
Comelec commit grave abuse of discretion in promulgating and
implementing Resolution No. 2848?
We answer the question in the affirmative.
To begin with, the process started by private respondents was an
INITIATIVE but respondent Comelec made preparations for a
REFERENDUM only. In fact, in the body of the Resolution
[11]
as
reproduced in the footnote below the word "referendum" is repeated at
least 27 times, but "initiative" is not mentioned at all. The Comelec
labeled the exercise as a "Referendum"; the counting of votes was
entrusted to a "Referendum Committee"; the documents were called
"referendum returns"; the canvassers, "Referendum Board of
Canvassers" and the ballots themselves bore the description
"referendum". To repeat, not once was the word "initiative" used in said
body of Resolution No. 2848. And yet, this exercise is unquestionably
an INITIATIVE.
There are statutory and conceptual demarcations between a
referendum and an initiative. In enacting the "Initiative and Referendum
Act,
[12]
Congress differentiated one term from the other, thus:
(a) "Initiative" is the power of the people to propose amendments to the
Constitution or to propose and enact legislations through an election called for
the purpose.
There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
a.2. Initiative on statutes which refers to a petition proposing to enact a national
legislation; and
a.3. Initiative on local legislation which refers to a petition proposing to enact a
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(b) "Indirect initiative" is exercise of initiative by the people through a
proposition sent to Congress or the local legislative body for action.
(c) "Referendum" is the power of the electorate to approve or reject a
legislation through an election called for the purpose. It may be of two classes,
namely:
c.1. Referendum on statutes which refers to a petition to approve or reject an
act or law, or part thereof, passed by Congress; and
c.2. Referendum on local law which refers to a petition to approve or reject a
law, resolution or ordinance enacted by regional assemblies and local
legislative bodies.
Along these statutory definitions, Justice Isagani A. Cruz
[13]
defines
initiative as the "power of the people to propose bills and laws, and to
enact or reject them at the polls independent of the legislative
assembly." On the other hand, he explains that referendum "is the right
reserved to the people to adopt or reject any act or measure which has
been passed by a legislative body and which in most cases would
without action on the part of electors become a law." The foregoing
definitions, which are based on Black's
[14]
and other leading American
authorities, are echoed in the Local Government Code (RA 7160)
substantially as follows:
"SEC. 120. Local Initiative Defined. -- Local Initiative is the legal process
whereby the registered voters of a local government unit may directly propose,
enact, or amend any ordinance.
"SEC. 126. Local Referendum Defined. -- Local referendum is the legal
process whereby the registered voters of the local government units may
approve, amend or reject any ordinance enacted by the sanggunian.
The local referendum shall be held under the control and direction of the
Comelec within sixty (60) days in case of provinces and cities, forty-five (45)
days in case of municipalities and thirty (30) days in case of barangays.
The Comelec shall certify and proclaim the results of the said referendum."
Prescinding from these definitions, we gather that initiative is
resorted to (or initiated) by the people directly either because the law-
making body fails or refuses to enact the law, ordinance, resolution or
act that they desire or because they want to amend or modify one
already existing. Under Sec. 13 of R.A. 6735, the local legislative body
is given the opportunity to enact the proposal. If its refuses/neglects to
do so within thirty (30) days from its presentation, the proponents
through their duly-authorized and registered representatives may invoke
their power of initiative, giving notice thereof to the local legislative body
concerned. Should the proponents be able to collect the number of
signed conformities within the period granted by said statute, the
Commission on Elections "shall then set a date for the initiative (not
referendum) at which the proposition shall be submitted to the
registered voters in the local government unit concerned x x x".
On the other hand, in a local referendum, the law-making body
submits to the registered voters of its territorial jurisdiction, for approval
or rejection, any ordinance or resolution which is duly enacted or
approved by such law-making authority. Said referendum shall be
conducted also under the control and direction of the Commission on
Elections.
[15]

In other words, while initiative is entirely the work of the electorate,
referendum is begun and consented to by the law-making
body. Initiative is a process of law-making by the people themselves
without the participation and against the wishes of their elected
representatives, while referendum consists merely of the electorate
approving or rejecting what has been drawn up or enacted by a
legislative body. Hence, the process and the voting in an initiative are
understandably more complex than in a referendum where expectedly
the voters will simply write either "Yes" or "No" in the ballot.
[Note: While the above quoted laws variously refer to initiative and
referendum as "powers" or "legal processes", these can also be "rights",
as Justice Cruz terms them, or "concepts", or "the proposal" itself (in the
case of initiative) being referred to in this Decision.]
From the above differentiation, it follows that there is need for the
Comelec to supervise an initiative more closely, its authority thereon
extending not only to the counting and canvassing of votes but also to
seeing to it that the matter or act submitted to the people is in the proper
form and language so it may be easily understood and voted upon by
the electorate. This is especially true where the proposed legislation is
lengthy and complicated, and should thus be broken down into several
autonomous parts, each such part to be voted upon separately. Care
must also be exercised that "(n)o petition embracing more than one
subject shall be submitted to the electorate,"
[16]
although "two or more
propositions may be submitted in an initiative".
[17]

It should be noted that under Sec. 13 (c) of RA 6735, the "Secretary
of Local Government or his designated representative shall extend
assistance in the formulation of the proposition."
In initiative and referendum, the Comelec exercises administration
and supervision of the process itself, akin to its powers over the conduct
of elections. These law-making powers belong to the people, hence the
respondent Commission cannot control or change the substance or the
content of legislation. In the exercise of its authority, it may (in fact it
should have done so already) issue relevant and adequate guidelines
and rules for the orderly exercise of these "people-power" features of
our Constitution.
Third Issue: Withdrawal of Adherence and Imposition of
Conditionalities -- Ultra Vires?
Petitioner maintains that the proposition sought to be submitted in
the plebiscite, namely, Pambayang Kapasyahan Blg. 10, Serye 1993,
is ultra vires or beyond the powers of the Sangguniang Bayan to
enact,
[18]
stressing that under Sec. 124 (b) of RA 7160 (the Local
Government Code), "local initiative shall cover only such subjects or
matters as are within the legal powers of the sanggunians to enact."
Elsewise stated, a local initiative may enact only such ordinances or
resolutions as the municipal council itself could, if it decided to so
enact.
[19]
After the Sangguniang Bayan of Morong and the other
municipalities concerned (Olongapo, Subic and Hermosa) gave their
resolutions of concurrence, and by reason of which the SSEZ had been
created, whose metes and bounds had already been delineated by
Proclamation No. 532 issued on February 1, 1995 in accordance with
Section 12 of R.A. No. 7227, the power to withdraw such concurrence
and/or to substitute therefor a conditional concurrence is no longer
within the authority and competence of the Municipal Council of Morong
to legislate. Furthermore, petitioner adds, the specific conditionalities
included in the questioned municipal resolution are beyond the powers
of the Council to impose. Hence, such withdrawal can no longer be
enacted or conditionalities imposed by initiative. In other words,
petitioner insists, the creation of SSEZ is now a fait accompli for the
benefit of the entire nation. Thus, Morong cannot unilaterally withdraw
its concurrence or impose new conditions for such concurrence as this
would effectively render nugatory the creation by (national) law of the
SSEZ and would deprive the entire nation of the benefits to be derived
therefrom. Once created, SSEZ has ceased to be a local concern. It
has become a national project.
On the other hand, private respondent Garcia counters that such
argument is premature and conjectural because at this point, the
resolution is just a proposal. If the people should reject it during the
referendum, then there is nothing to declare as illegal.
Deliberating on this issue, the Court agrees with private respondent
Garcia that indeed, the municipal resolution is still in the proposal
stage. It is not yet an approved law. Should the people reject it, then
there would be nothing to contest and to adjudicate. It is only when the
people have voted for it and it has become an approved ordinance or
resolution that rights and obligations can be enforced or implemented
thereunder. At this point, it is merely a proposal and the writ of
prohibition cannot issue upon a mere conjecture or
possibility. Constitutionally speaking, courts may decide only actual
controversies, not hypothetical questions or cases.
[20]

We also note that the Initiative and Referendum Act itself
provides
[21]
that "(n)othing in this Act shall prevent or preclude the proper
courts from declaring null and void any proposition approved pursuant
to this Act x x x."
So too, the Supreme Court is basically a review court.
[22]
It passes
upon errors of law (and sometimes of fact, as in the case of mandatory
appeals of capital offenses) of lower courts as well as determines
whether there had been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any "branch or instrumentality" of
government. In the present case, it is quite clear that the Court has
authority to review Comelec Resolution No. 2848 to determine the
commission of grave abuse of discretion. However, it does not have the
same authority in regard to the proposed initiative since it has not been
promulgated or approved, or passed upon by any "branch or
instrumentality" or lower court, for that matter. The Commission on
Elections itself has made no reviewable pronouncements about the
issues brought by the pleadings. The Comelec simply
included verbatim the proposal in its questioned Resolution No. 2848.
Hence, there is really no decision or action made by a branch,
instrumentality or court which this Court could take cognizance of and
acquire jurisdiction over, in the exercise of its review powers.
Having said that, we are in no wise suggesting that the Comelec
itself has no power to pass upon proposed resolutions in an
initiative. Quite the contrary, we are ruling that these matters are in fact
within the initiatory jurisdiction of the Commission -- to which then the
herein basic questions ought to have been addressed, and by which the
same should have been decided in the first instance. In other words,
while regular courts may take jurisdiction over "approved propositions"
per said Sec. 18 of R.A. 6735, the Comelec in the exercise of its quasi-
judicial and administrative powers may adjudicate and pass upon such
proposals insofar as their form and language are concerned, as
discussed earlier; and it may be added, even as to content, where the
proposals or parts thereof are patently and clearly outside the
"capacity of the local legislative body to enact."
[23]
Accordingly, the
question of whether the subject of this initiative is within the capacity of
the Municipal Council of Morong to enact may be ruled upon by the
Comelec upon remand and after hearing the parties thereon.
While on the subject of capacity of the local lawmaking body, it
would be fruitful for the parties and the Comelec to plead and
adjudicate, respectively, the question of whether Grande Island and the
"virgin forests" mentioned in the proposed initiative belong to the
national government and thus cannot be segregated from the Zone and
"returned to Bataan" by the simple expedient of passing a municipal
resolution. We note that Sec. 13 (e) of R.A. 7227 speaks of the full
subscription and payment of the P20 billion authorized capital stock of
the Subic Authority by the Republic, with, aside from cash and other
assets, the "... lands, embraced, covered and defined in Section 12
hereof, ..." which includes said island and forests. The ownership of
said lands is a question of fact that may be taken up in the proper forum
-- the Commission on Elections.
Another question which the parties may wish to submit to the
Comelec upon remand of the initiative is whether the proposal,
assuming it is within the capacity of the Municipal Council to enact, may
be divided into several parts for purposes of voting. Item "I" is a
proposal to recall, nullify and render without effect (bawiin, nulipikahin at
pawalangbisa) Municipal Resolution No. 10, Series of 1993. On the
other hand, Item "II" proposes to change or replace (palitan) said
resolution with another municipal resolution of
concurrenceprovided certain conditions enumerated thereunder would
be granted, obeyed and implemented (ipagkakaloob, ipatutupad at
isasagawa) for the benefit and interest of Morong and Bataan. A voter
may favor Item I -- i.e., he may want a total dismemberment of Morong
from the Authority -- but may not agree with any of the conditions set
forth in Item II. Should the proposal then be divided and be voted upon
separately and independently?
All told, we shall not pass upon the third issue of ultra vires on the
ground of prematurity.
Epilogue
In sum, we hold that (i) our decision in the earlier Garcia case is not
a bar to the present controversy as the issue raised and decided therein
is different from the questions involved here; (ii) the respondent
Commission should be given an opportunity to review and correct its
errors in promulgating its Resolution No. 2848 and in preparing -- if
necessary -- for the plebiscite; and (iii) that the said Commission has
administrative and initiatory quasi-judicial jurisdiction to pass upon the
question of whether the proposal is sufficient in form and language and
whether such proposal or part or parts thereof
are clearly and patently outside the powers of the municipal council of
Morong to enact, and therefore violative of law.
In deciding this case, the Court realizes that initiative and
referendum, as concepts and processes, are new in our country. We
are remanding the matter to the Comelec so that proper corrective
measures, as above discussed, may be undertaken, with a view to
helping fulfill our people's aspirations for the actualization of effective
direct sovereignty. Indeed we recognize that "(p)rovisions for initiative
and referendum are liberally construed to effectuate their purposes, to
facilitate and not to hamper the exercise by the voters of the rights
granted thereby."
[24]
In his authoritative treatise on the Constitution, Fr.
Joaquin G. Bernas, S.J. treasures these "instruments which can be
used should the legislature show itself indifferent to the needs of the
people."
[25]
Impelled by a sense of urgency, Congress enacted Republic
Act No. 6735 to give life and form to the constitutional
mandate. Congress also interphased initiative and referendum into the
workings of local governments by including a chapter on this subject in
the local Government Code of 1991.
[26]
And the Commission on
Elections can do no less by seasonably and judiciously promulgating
guidelines and rules, for both national and local use, in implementation
of these laws. For its part, this Court early on expressly recognized the
revolutionary import of reserving people power in the process of law-
making.
[27]

Like elections, initiative and referendum are powerful and valuable
modes of expressing popular sovereignty. And this Court as a matter of
policy and doctrine will exert every effort to nurture, protect and promote
their legitimate exercise. For it is but sound public policy to enable the
electorate to express their free and untrammeled will, not only in the
election of their anointed lawmakers and executives, but also in the
formulation of the very rules and laws by which our society shall be
governed and managed.
WHEREFORE the petition is GRANTED. Resolution No. 2848
is ANNULLED and SET ASIDE. The initiative on Pambayang
Kapasyahan Blg. 10, Serye 1993 is REMANDEDto the Commission on
Elections for further proceedings consistent with the foregoing
discussion. No costs.
IT IS SO ORDERED.















Fiansisco ji v house of iepiesentative masyauong mahaba
http:sc.juuiciaiy.gov.phjuiispiuuence2uuSnov2uuS16u261.htm



METROPOLITAN MANILA
DEVELOPMENT AUTHORITY,
DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES, DEPARTMENT OF
EDUCATION, CULTURE AND
SPORTS,
[1]
DEPARTMENT OF
HEALTH, DEPARTMENT OF
AGRICULTURE, DEPARTMENT
OF PUBLIC WORKS AND
HIGHWAYS, DEPARTMENT OF
BUDGET AND MANAGEMENT,
PHILIPPINE COAST GUARD,
PHILIPPINE NATIONAL POLICE
MARITIME GROUP, and
DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT,
Petitioners,

- versus -

CONCERNED RESIDENTS
OFMANILA BAY, represented
andjoined by DIVINA V. ILAS,
SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH
DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE
SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and
JAIME AGUSTIN R. OPOSA,
Respondents.

G.R. Nos. 171947-48


Present:


CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.













Promulgated:

February 15, 2011

x-----------------------------------------------------------------------------------------x
R E S O L U T I O N


VELASCO, JR., J.:

On December 18, 2008, this Court rendered a Decision in G.R. Nos.
171947-48 ordering petitioners to clean up, rehabilitate and
preserve Manila Bay in their different capacities. The fallo reads:

WHEREFORE, the petition is DENIED. The September
28, 2005 Decision of the CA in CA-G.R. CV No. 76528 and SP
No. 74944 and the September 13, 2002 Decision of the RTC in
Civil Case No. 1851-99 are AFFIRMED but with
MODIFICATIONS in view of subsequent developments or
supervening events in the case. The fallo of the RTC Decision
shall now read:

WHEREFORE, judgment is hereby rendered ordering the
abovenamed defendant-government agencies to clean up,
rehabilitate, and preserve Manila Bay, and restore and maintain its
waters to SB level (Class B sea waters per Water Classification
Tables under DENR Administrative Order No. 34 [1990]) to make
them fit for swimming, skin-diving, and other forms of contact
recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as
the primary agency responsible for the conservation, management,
development, and proper use of the countrys environment and
natural resources, and Sec. 19 of RA 9275, designating the DENR
as the primary government agency responsible for its enforcement
and implementation, the DENR is directed to fully implement its
Operational Plan for the Manila Bay Coastal Strategy for the
rehabilitation, restoration, and conservation of the Manila Bay at
the earliest possible time. It is ordered to call regular coordination
meetings with concerned government departments and agencies to
ensure the successful implementation of the aforesaid plan of
action in accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the
Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991, the DILG, in exercising the
Presidents power of general supervision and its duty to
promulgate guidelines in establishing waste management
programs under Sec. 43 of the Philippine Environment Code (PD
1152), shall direct all LGUs in Metro Manila, Rizal, Laguna,
Cavite, Bulacan, Pampanga, and Bataan to inspect all factories,
commercial establishments, and private homes along the banks of
the major river systems in their respective areas of jurisdiction,
such as but not limited to the Pasig-Marikina-San Juan Rivers, the
NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other minor rivers and
waterways that eventually discharge water into the Manila Bay;
and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as
prescribed by existing laws, ordinances, and rules and regulations.
If none be found, these LGUs shall be ordered to require non-
complying establishments and homes to set up said facilities or
septic tanks within a reasonable time to prevent industrial wastes,
sewage water, and human wastes from flowing into these rivers,
waterways, esteros, and the Manila Bay, under pain of closure or
imposition of fines and other sanctions.

(3) As mandated by Sec. 8 of RA 9275, the MWSS is
directed to provide, install, operate, and maintain the necessary
adequate waste water treatment facilities in Metro Manila, Rizal,
and Cavite where needed at the earliest possible time.

(4) Pursuant to RA 9275, the LWUA, through the local
water districts and in coordination with the DENR, is ordered to
provide, install, operate, and maintain sewerage and sanitation
facilities and the efficient and safe collection, treatment, and
disposal of sewage in the provinces of Laguna, Cavite, Bulacan,
Pampanga, and Bataan where needed at the earliest possible time.

(5) Pursuant to Sec. 65 of RA 8550, the DA, through the
BFAR, is ordered to improve and restore the marine life of
the Manila Bay. It is also directed to assist the LGUs in Metro
Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in
developing, using recognized methods, the fisheries and aquatic
resources in the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the
PNP Maritime Group, in accordance with Sec. 124 of RA 8550, in
coordination with each other, shall apprehend violators of PD 979,
RA 8550, and other existing laws and regulations designed to
prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513 and the
International Convention for the Prevention of Pollution from
Ships, the PPA is ordered to immediately adopt such measures to
prevent the discharge and dumping of solid and liquid wastes and
other ship-generated wastes into the Manila Bay waters from
vessels docked at ports and apprehend the violators.

(8) The MMDA, as the lead agency and implementor of
programs and projects for flood control projects and drainage
services in Metro Manila, in coordination with the DPWH, DILG,
affected LGUs, PNP Maritime Group, Housing and Urban
Development Coordinating Council (HUDCC), and other
agencies, shall dismantle and remove all structures, constructions,
and other encroachments established or built in violation of RA
7279, and other applicable laws along the Pasig-Marikina-San
Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the
principal implementor of programs and projects for flood control
services in the rest of the country more particularly in Bulacan,
Bataan, Pampanga, Cavite, and Laguna, in coordination with the
DILG, affected LGUs, PNP Maritime Group, HUDCC, and other
concerned government agencies, shall remove and demolish all
structures, constructions, and other encroachments built in breach
of RA 7279 and other applicable laws along the Meycauayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the
Imus (Cavite) River, the Laguna De Bay, and other rivers,
connecting waterways, and esteros that discharge wastewater into
the Manila Bay.

In addition, the MMDA is ordered to establish, operate, and
maintain a sanitary landfill, as prescribed by RA 9003, within a
period of one (1) year from finality of this Decision. On matters
within its territorial jurisdiction and in connection with the
discharge of its duties on the maintenance of sanitary landfills and
like undertakings, it is also ordered to cause the apprehension and
filing of the appropriate criminal cases against violators of the
respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the
Clean Water Act), and other existing laws on pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067 and
Sec. 8 of RA 9275, within one (1) year from finality of this
Decision, determine if all licensed septic and sludge companies
have the proper facilities for the treatment and disposal of fecal
sludge and sewage coming from septic tanks. The DOH shall give
the companies, if found to be non-complying, a reasonable time
within which to set up the necessary facilities under pain of
cancellation of its environmental sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550,
and Sec. 56 of RA 9003, the DepEd shall integrate lessons on
pollution prevention, waste management, environmental
protection, and like subjects in the school curricula of all levels to
inculcate in the minds and hearts of students and, through them,
their parents and friends, the importance of their duty toward
achieving and maintaining a balanced and healthful ecosystem in
the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate
budget in the General Appropriations Act of 2010 and succeeding
years to cover the expenses relating to the cleanup, restoration,
and preservation of the water quality of the Manila Bay, in line
with the countrys development objective to attain economic
growth in a manner consistent with the protection, preservation,
and revival of our marine waters.

(12) The heads of petitioners-agencies MMDA, DENR,
DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group,
DILG, and also of MWSS, LWUA, and PPA, in line with the
principle of continuing mandamus, shall, from finality of this
Decision, each submit to the Court a quarterly progressive report
of the activities undertaken in accordance with this Decision.

SO ORDERED.


The government agencies did not file any motion for reconsideration
and the Decision became final in January 2009.

The case is now in the execution phase of the final and executory
December 18, 2008 Decision. The Manila Bay Advisory Committee was
created to receive and evaluate the quarterly progressive reports on the
activities undertaken by the agencies in accordance with said decision and to
monitor the execution phase.

In the absence of specific completion periods, the Committee
recommended that time frames be set for the agencies to perform their
assigned tasks. This may be viewed as an encroachment over the powers
and functions of the Executive Branch headed by the President of
the Philippines.

This view is misplaced.

The issuance of subsequent resolutions by the Court is simply an
exercise of judicial power under Art. VIII of the Constitution, because the
execution of the Decision is but an integral part of the adjudicative function
of the Court. None of the agencies ever questioned the power of the Court
to implement the December 18, 2008 Decision nor has any of them raised
the alleged encroachment by the Court over executive functions.

While additional activities are required of the agencies like
submission of plans of action, data or status reports, these directives are but
part and parcel of the execution stage of a final decision under Rule 39 of the
Rules of Court. Section 47 of Rule 39 reads:


Section 47. Effect of judgments or final orders.The
effect of a judgment or final order rendered by a court of
the Philippines, having jurisdiction to pronounce the judgment or
final order, may be as follows:

x x x x

(c) In any other litigation between the same parties of
their successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which appears
upon its face to have been so adjudged, or which was actually
and necessarily included therein or necessary thereto.
(Emphasis supplied.)




It is clear that the final judgment includes not only what appears upon
its face to have been so adjudged but also those matters actually and
necessarily included therein or necessary thereto. Certainly, any activity
that is needed to fully implement a final judgment is necessarily
encompassed by said judgment.

Moreover, the submission of periodic reports is sanctioned by Secs. 7
and 8, Rule 8 of the Rules of Procedure for Environmental cases:

Sec. 7. Judgment.If warranted, the court shall grant the
privilege of the writ of continuing mandamus requiring
respondent to perform an act or series of acts until the judgment is
fully satisfied and to grant such other reliefs as may be warranted
resulting from the wrongful or illegal acts of the respondent. The
court shall require the respondent to submit periodic reports
detailing the progress and execution of the judgment, and the
court may, by itself or through a commissioner or the
appropriate government agency, evaluate and monitor
compliance. The petitioner may submit its comments or
observations on the execution of the judgment.

Sec. 8. Return of the writ.The periodic reports
submitted by the respondent detailing compliance with the
judgment shall be contained in partial returns of the writ. Upon
full satisfaction of the judgment, a final return of the writ shall be
made to the court by the respondent. If the court finds that the
judgment has been fully implemented, the satisfaction of
judgment shall be entered in the court docket. (Emphasis
supplied.)


With the final and executory judgment in MMDA, the writ of
continuing mandamus issued in MMDA means that until petitioner-agencies
have shown full compliance with the Courts orders, the Court exercises
continuing jurisdiction over them until full execution of the judgment.

There being no encroachment over executive functions to speak of,
We shall now proceed to the recommendation of the Manila Bay Advisory
Committee.


Several problems were encountered by the Manila Bay Advisory
Committee.
[2]
An evaluation of the quarterly progressive reports has shown
that (1) there are voluminous quarterly progressive reports that are being
submitted; (2) petitioner-agencies do not have a uniform manner of reporting
their cleanup, rehabilitation and preservation activities; (3) as yet no definite
deadlines have been set by petitioner DENR as to petitioner-agencies
timeframe for their respective duties; (4) as of June 2010 there has been a
change in leadership in both the national and local levels; and (5) some
agencies have encountered difficulties in complying with the Courts
directives.

In order to implement the afore-quoted Decision, certain directives
have to be issued by the Court to address the said concerns.

Acting on the recommendation of the Manila Bay Advisory
Committee, the Court hereby resolves to ORDER the following:

(1) The Department of Environment and Natural Resources
(DENR), as lead agency in the Philippine Clean Water Act of 2004, shall
submit to the Court on or before June 30, 2011 the updated Operational
Plan for the Manila Bay Coastal Strategy.

The DENR is ordered to submit summarized data on the overall
quality of Manila Bay waters for all four quarters of 2010 on or before June
30, 2011.

The DENR is further ordered to submit the names and addresses of
persons and companies in Metro Manila, Rizal, Laguna, Cavite, Bulacan,
Pampanga andBataan that generate toxic and hazardous waste on or before
September 30, 2011.

(2) On or before June 30, 2011, the Department of the Interior
and Local Government (DILG) shall order the Mayors of all cities in
Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan,
Pampanga and Bataan; and the Mayors of all the cities and towns in said
provinces to inspect all factories, commercial establishments and private
homes along the banks of the major river systemssuch as but not
limited to the Pasig-Marikina-San Juan Rivers, the National Capital
Region (Paranaque-Zapote, Las Pinas) Rivers, the Navotas-Malabon-
Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, and the
Laguna De Bayand other minor rivers and waterways within their
jurisdiction that eventually discharge water into the Manila Bay and the
lands abutting it, to determine if they have wastewater treatment facilities
and/or hygienic septic tanks, as prescribed by existing laws, ordinances,
rules and regulations. Said local government unit (LGU) officials are
given up to September 30, 2011 to finish the inspection of said
establishments and houses.

In case of non-compliance, the LGU officials shall take appropriate
action to ensure compliance by non-complying factories, commercial
establishments and private homes with said law, rules and regulations
requiring the construction or installment of wastewater treatment facilities or
hygienic septic tanks.

The aforementioned governors and mayors shall submit to the
DILG on or before December 31, 2011 their respective compliance
reports which will contain the names and addresses or offices of the
owners of all the non-complying factories, commercial establishments and
private homes, copy furnished the concerned environmental agency, be it
the local DENR office or the Laguna Lake Development Authority.

The DILG is required to submit a five-year plan of action that will
contain measures intended to ensure compliance of all non-complying
factories, commercial establishments, and private homes.

On or before June 30, 2011, the DILG and the mayors of all cities
in Metro Manila shall consider providing land for the wastewater facilities
of the Metropolitan Waterworks and Sewerage System (MWSS) or its
concessionaires (Maynilad and Manila Water, Inc.) within their respective
jurisdictions.

(3) The MWSS shall submit to the Court on or before June 30,
2011 the list of areas in Metro Manila, Rizal and Cavite that do not have
the necessary wastewater treatment facilities. Within the same period, the
concessionaires of the MWSS shall submit their plans and projects for the
construction of wastewater treatment facilities in all the aforesaid areas
and the completion period for said facilities, which shall not go beyond
2037.

On or before June 30, 2011, the MWSS is further required to have
its two concessionaires submit a report on the amount collected as
sewerage fees in their respective areas of operation as of December 31,
2010.

(4) The Local Water Utilities Administration is ordered to submit
on or before September 30, 2011 its plan to provide, install, operate and
maintain sewerage and sanitation facilities in said cities and towns and the
completion period for said works, which shall be fully implemented by
December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of
Fisheries and Aquatic Resources, shall submit to the Court on or before June
30, 2011 a report on areas in Manila Bay where marine life has to be
restored or improved and the assistance it has extended to the LGUs in
Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan in
developing the fisheries and aquatic resources in Manila Bay. The report
shall contain monitoring data on the marine life in said areas. Within the
same period, it shall submit its five-year plan to restore and improve the
marine life in Manila Bay, its future activities to assist the aforementioned
LGUs for that purpose, and the completion period for said undertakings.

The DA shall submit to the Court on or before September 30, 2011 the
baseline data as of September 30, 2010 on the pollution loading into
the Manila Baysystem from agricultural and livestock sources.

(6) The Philippine Ports Authority (PPA) shall incorporate in its
quarterly reports the list of violators it has apprehended and the status of
their cases. The PPA is further ordered to include in its report the names,
make and capacity of the ships that dock in PPA ports. The PPA shall
submit to the Court on or before June 30, 2011 the measures it intends to
undertake to implement its compliance with paragraph 7 of the dispositive
portion of the MMDA Decision and the completion dates of such measures.

The PPA should include in its report the activities of its
concessionaire that collects and disposes of the solid and liquid wastes and
other ship-generated wastes, which shall state the names, make and capacity
of the ships serviced by it since August 2003 up to the present date, the dates
the ships docked at PPA ports, the number of days the ship was at sea with
the corresponding number of passengers and crew per trip, the volume of
solid, liquid and other wastes collected from said ships, the treatment
undertaken and the disposal site for said wastes.


(7) The Philippine National Police (PNP) Maritime Group shall
submit on or before June 30, 2011 its five-year plan of action on the
measures and activities it intends to undertake to apprehend the violators of
Republic Act No. (RA) 8550 or the Philippine Fisheries Code of 1998 and
other pertinent laws, ordinances and regulations to prevent marine pollution
in Manila Bay and to ensure the successful prosecution of violators.

The Philippine Coast Guard shall likewise submit on or before June
30, 2011 its five-year plan of action on the measures and activities they
intend to undertake to apprehend the violators of Presidential Decree No.
979 or the Marine Pollution Decree of 1976 and RA 9993 or the Philippine
Coast Guard Law of 2009 and other pertinent laws and regulations to
prevent marine pollution in Manila Bay and to ensure the successful
prosecution of violators.

(8) The Metropolitan Manila Development Authority (MMDA)
shall submit to the Court on or before June 30, 2011 the names and
addresses of the informal settlers in Metro Manila who, as of December 31,
2010, own and occupy houses, structures, constructions and other
encroachments established or built along the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros,
in violation of RA 7279 and other applicable laws. On or before June 30,
2011, the MMDA shall submit its plan for the removal of said informal
settlers and the demolition of the aforesaid houses, structures, constructions
and encroachments, as well as the completion dates for said activities, which
shall be fully implemented not later than December 31, 2015.

The MMDA is ordered to submit a status report, within thirty (30)
days from receipt of this Resolution, on the establishment of a sanitary
landfill facility for Metro Manila in compliance with the standards under RA
9003 or the Ecological Solid Waste Management Act.

On or before June 30, 2011, the MMDA shall submit a report of the
location of open and controlled dumps in Metro Manila whose operations
are illegal after February 21, 2006,
[3]
pursuant to Secs. 36 and 37 of RA
9003, and its plan for the closure of these open and controlled dumps to be
accomplished not later than December 31, 2012. Also, on or before June 30,
2011, the DENR Secretary, as Chairperson of the National Solid Waste
Management Commission (NSWMC), shall submit a report on the location
of all open and controlled dumps in Rizal, Cavite, Laguna, Bulacan,
Pampanga and Bataan.

On or before June 30, 2011, the DENR Secretary, in his capacity as
NSWMC Chairperson, shall submit a report on whether or not the following
landfills strictly comply with Secs. 41 and 42 of RA 9003 on the
establishment and operation of sanitary landfills, to wit:

National Capital Region

1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City
2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City

Region III

3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan
4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan
5. Brgy. Minuyan, San Jose del Monte City, Bulacan
6. Brgy. Mapalad, Santa Rosa, Nueva Ecija
7. Sub-zone Kalangitan, Clark Capas, Tarlac Special
Economic Zone

Region IV-A

8. Kalayaan (Longos), Laguna
9. Brgy. Sto. Nino, San Pablo City, Laguna
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna
11. Morong, Rizal
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal
(ISWIMS)
13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)
On or before June 30, 2011, the MMDA and the seventeen (17) LGUs
in Metro Manila are ordered to jointly submit a report on the average amount
of garbage collected monthly per district in all the cities in Metro Manila
from January 2009 up to December 31, 2010 vis--vis the average amount of
garbage disposed monthly in landfills and dumpsites. In its quarterly report
for the last quarter of 2010 and thereafter, MMDA shall report on the
apprehensions for violations of the penal provisions of RA 9003, RA 9275
and other laws on pollution for the said period.

On or before June 30, 2011, the DPWH and the LGUs in Rizal,
Laguna, Cavite, Bulacan, Pampanga, and Bataan shall submit the names and
addresses of the informal settlers in their respective areas who, as of
September 30, 2010, own or occupy houses, structures, constructions, and
other encroachments built along the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna de Bay, and other rivers, connecting waterways andesteros that
discharge wastewater into the Manila Bay, in breach of RA 7279 and other
applicable laws. On or before June 30, 2011, the DPWH and the aforesaid
LGUs shall jointly submit their plan for the removal of said informal settlers
and the demolition of the aforesaid structures, constructions and
encroachments, as well as the completion dates for such activities which
shall be implemented not later than December 31, 2012.

(9) The Department of Health (DOH) shall submit to the Court on
or before June 30, 2011 the names and addresses of the owners of septic and
sludge companies including those that do not have the proper facilities for
the treatment and disposal of fecal sludge and sewage coming from septic
tanks.

The DOH shall implement rules and regulations on Environmental
Sanitation Clearances and shall require companies to procure a license to
operate from the DOH.

The DOH and DENR-Environmental Management Bureau shall
develop a toxic and hazardous waste management system by June 30, 2011
which will implement segregation of hospital/toxic/hazardous wastes and
prevent mixing with municipal solid waste.

On or before June 30, 2011, the DOH shall submit a plan of action to
ensure that the said companies have proper disposal facilities and the
completion dates of compliance.

(10) The Department of Education (DepEd) shall submit to the Court
on or before May 31, 2011 a report on the specific subjects on pollution
prevention, waste management, environmental protection, environmental
laws and the like that it has integrated into the school curricula in all levels
for the school year 2011-2012.

On or before June 30, 2011, the DepEd shall also submit its plan of
action to ensure compliance of all the schools under its supervision with
respect to the integration of the aforementioned subjects in the school
curricula which shall be fully implemented by June 30, 2012.

(11) All the agencies are required to submit their quarterly reports
electronically using the forms below. The agencies may add other key
performance indicators that they have identified.

SO ORDERED.














THE SECRETARY OF NATIONAL DEFENSE,
THE CHIEF OF STAFF, ARMED FORCES OF
THEPHILIPPINES,
Petitioners,







- versus -






RAYMOND MANALO and REYNALDO
MANALO,
Respondents.
G.R. No.
180906

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-
SANTIAGO,
CARPIO,
AUSTRIA-
MARTINEZ,
CORONA,
CARPIO
MORALES,
AZCUNA,
TINGA,
CHICO-
NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-
DE CASTRO,
and
BRION, JJ.

Promulgated:

October 7, 2008
x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N

PUNO, C.J.:
While victims of enforced disappearances are separated from the rest
of the world behind secret walls, they are not separated from the
constitutional protection of their basic rights. The constitution is an
overarching sky that covers all in its protection. The case at bar involves the
rights to life, liberty and security in the first petition for a writ
of amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules
of Court in relation to Section 19
[1]
of the Rule on the Writ of Amparo,
seeking to reverse and set aside on both questions of fact and law, the
Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No.
00001, entitled Raymond Manalo and Reynaldo Manalo, petitioners, versus
The Secretary of National Defense, the Chief of Staff, Armed Forces of the
Philippines, respondents.
This case was originally a Petition for Prohibition, Injunction, and
Temporary Restraining Order (TRO)
[2]
filed before this Court by herein
respondents (therein petitioners) on August 23, 2007 to stop herein
petitioners (therein respondents) and/or their officers and agents from
depriving them of their right to liberty and other basic rights. Therein
petitioners also sought ancillary remedies, Protective Custody Orders,
Appointment of Commissioner, Inspection and Access Orders, and all other
legal and equitable reliefs under Article VIII, Section 5(5)
[3]
of the 1987
Constitution and Rule 135, Section 6 of the Rules of Court. In our
Resolution dated August 24, 2007, we (1) ordered the Secretary of the
Department of National Defense and the Chief of Staff of the AFP, their
agents, representatives, or persons acting in their stead, including but not
limited to the Citizens Armed Forces Geographical Unit (CAFGU) to submit
their Comment; and (2) enjoined them from causing the arrest of therein
petitioners, or otherwise restricting, curtailing, abridging, or depriving them
of their right to life, liberty, and other basic rights as guaranteed under
Article III, Section 1
[4]
of the 1987 Constitution.
[5]

While the August 23, 2007 Petition was pending, the Rule on the Writ
of Amparo took effect on October 24, 2007. Forthwith, therein petitioners
filed a Manifestation and Omnibus Motion to Treat Existing Petition
as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim
and Final Amparo Reliefs. They prayed that: (1) the petition be considered a
Petition for the Writ of Amparo under Sec. 26
[6]
of the Amparo Rule; (2) the
Court issue the writ commanding therein respondents to make a verified
return within the period provided by law and containing the specific matter
required by law; (3) they be granted the interim reliefs allowed by
the Amparo Rule and all other reliefs prayed for in the petition but not
covered by the Amparo Rule; (4) the Court, after hearing, render judgment
as required in Sec. 18
[7]
of the Amparo Rule; and (5) all other just and
equitable reliefs.
[8]

On October 25, 2007, the Court resolved to treat the August 23, 2007
Petition as a petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to
respondents requiring them to file with the CA (Court of Appeals)
a verified written return within five (5) working days from service
of the writ. We REMAND the petition to the CA and designate
the Division of Associate Justice Lucas P. Bersamin to conduct
the summary hearing on the petition on November 8, 2007 at 2:00
p.m. and decide the petition in accordance with the Rule on the
Writ of Amparo.
[9]


On December 26, 2007, the Court of Appeals rendered a decision in
favor of therein petitioners (herein respondents), the dispositive portion of
which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF
AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL
DEFENSE and AFP CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days
from notice of this decision all official and unofficial reports of
the investigation undertaken in connection with their case,
except those already on file herein;
2. To confirm in writing the present places of official assignment
of M/Sgt Hilario aka Rollie Castillo and Donald Caigas within
five days from notice of this decision.
3. To cause to be produced to this Court all medical reports,
records and charts, reports of any treatment given or
recommended and medicines prescribed, if any, to the
petitioners, to include a list of medical and (sic) personnel
(military and civilian) who attended to them from February 14,
2006 until August 12, 2007 within five days from notice of this
decision.
The compliance with this decision shall be made under the
signature and oath of respondent AFP Chief of Staff or his duly
authorized deputy, the latters authority to be express and made
apparent on the face of the sworn compliance with this directive.
SO ORDERED.
[10]


Hence, this appeal. In resolving this appeal, we first unfurl the facts
as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks
before February 14, 2006, several uniformed and armed soldiers and
members of the CAFGU summoned to a meeting all the residents of
their barangay in San Idelfonso, Bulacan. Respondents were not able to
attend as they were not informed of the gathering, but Raymond saw some
of the soldiers when he passed by the barangay hall.
[11]

On February 14, 2006, Raymond was sleeping in their house in Buhol
na Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers
wearing white shirts, fatigue pants and army boots, entered their house and
roused him. They asked him if he was Bestre, but his mother, Ester Manalo,
replied that he was Raymond, not Bestre. The armed soldier slapped him on
both cheeks and nudged him in the stomach. He was then handcuffed,
brought to the rear of his house, and forced to the ground face down. He
was kicked on the hip, ordered to stand and face up to the light, then forcibly
brought near the road. He told his mother to follow him, but three soldiers
stopped her and told her to stay.
[12]

Among the men who came to take him, Raymond recognized brothers
Michael de la Cruz, Madning de la Cruz, Puti de la Cruz, and Pula de la
Cruz, who all acted as lookout. They were all members of the CAFGU and
residing in Manuzon, San Ildefonso, Bulacan. He also recognized brothers
Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While
he was being forcibly taken, he also saw outside of his house
two barangay councilors, Pablo Cunanan and Bernardo Lingasa, with some
soldiers and armed men.
[13]

The men forced Raymond into a white L300 van. Once inside, he
was blindfolded. Before being blindfolded, he saw the faces of the soldiers
who took him. Later, in his 18 months of captivity, he learned their
names. The one who drove the van was Rizal Hilario alias Rollie Castillo,
whom he estimated was about 40 years of age or older. The leader of the
team who entered his house and abducted him was Ganata. He was tall,
thin, curly-haired and a bit old. Another one of his abductors was George
who was tall, thin, white-skinned and about 30 years old.
[14]

The van drove off, then came to a stop. A person was brought inside
the van and made to sit beside Raymond. Both of them were beaten up. On
the road, he recognized the voice of the person beside him as his brother
Reynaldos. The van stopped several times until they finally arrived at a
house. Raymond and Reynaldo were each brought to a different
room. With the doors of their rooms left open, Raymond saw several
soldiers continuously hitting his brother Reynaldo on the head and other
parts of his body with the butt of their guns for about 15 minutes. After
which, Reynaldo was brought to his (Raymonds) room and it was his
(Raymonds) turn to be beaten up in the other room. The soldiers asked him
if he was a member of the New Peoples Army. Each time he said he was
not, he was hit with the butt of their guns. He was questioned where his
comrades were, how many soldiers he had killed, and how many NPA
members he had helped. Each time he answered none, they hit
him.
[15]

In the next days, Raymonds interrogators appeared to be high
officials as the soldiers who beat him up would salute them, call them sir,
and treat them with respect. He was in blindfolds when interrogated by the
high officials, but he saw their faces when they arrived and before the
blindfold was put on. He noticed that the uniform of the high officials was
different from those of the other soldiers. One of those officials was tall and
thin, wore white pants, tie, and leather shoes, instead of combat boots. He
spoke in Tagalog and knew much about his parents and family, and a habeas
corpus case filed in connection with the respondents abduction.
[16]
While
these officials interrogated him, Raymond was not manhandled. But once
they had left, the soldier guards beat him up. When the guards got drunk,
they also manhandled respondents. During this time, Raymond was fed only
at night, usually with left-over and rotten food.
[17]

On the third week of respondents detention, two men arrived while
Raymond was sleeping and beat him up. They doused him with urine and
hot water, hit his stomach with a piece of wood, slapped his forehead twice
with a .45 pistol, punched him on the mouth, and burnt some parts of his
body with a burning wood. When he could no longer endure the torture and
could hardly breathe, they stopped. They then subjected Reynaldo to the
same ordeal in another room. Before their torturers left, they warned
Raymond that they would come back the next day and kill him.
[18]

The following night, Raymond attempted to escape. He waited for the
guards to get drunk, then made noise with the chains put on him to see if
they were still awake. When none of them came to check on him, he
managed to free his hand from the chains and jumped through the
window. He passed through a helipad and firing range and stopped near a
fishpond where he used stones to break his chains. After walking through a
forested area, he came near a river and an Iglesia ni Kristo church. He
talked to some women who were doing the laundry, asked where he was and
the road to Gapan. He was told that he was in Fort Magsaysay.
[19]
He
reached the highway, but some soldiers spotted him, forcing him to run
away. The soldiers chased him and caught up with him. They brought him
to another place near the entrance of what he saw was Fort Magsaysay. He
was boxed repeatedly, kicked, and hit with chains until his back bled. They
poured gasoline on him. Then a so-called Mam or Madam suddenly
called, saying that she wanted to see Raymond before he was killed. The
soldiers ceased the torture and he was returned insideFort Magsaysay where
Reynaldo was detained.
[20]

For some weeks, the respondents had a respite from all the
torture. Their wounds were treated. When the wounds were almost healed,
the torture resumed, particularly when respondents guards got drunk.
[21]

Raymond recalled that sometime in April until May 2006, he was
detained in a room enclosed by steel bars. He stayed all the time in that
small room measuring 1 x 2 meters, and did everything there, including
urinating, removing his bowels, bathing, eating and sleeping. He counted
that eighteen people
[22]
had been detained in that bartolina, including his
brother Reynaldo and himself.
[23]

For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms and a
kitchen. One room was made into the bartolina. The house was near the
firing range, helipad and mango trees. At dawn, soldiers marched by their
house. They were also sometimes detained in what he only knew as the
DTU.
[24]

At the DTU, a male doctor came to examine respondents. He checked
their body and eyes, took their urine samples and marked them. When asked
how they were feeling, they replied that they had a hard time urinating, their
stomachs were aching, and they felt other pains in their body. The next day,
two ladies in white arrived. They also examined respondents and gave them
medicines, including orasol, amoxicillin and mefenamic acid. They brought
with them the results of respondents urine test and advised them to drink
plenty of water and take their medicine. The two ladies returned a few more
times. Thereafter, medicines were sent through the master of the DTU,
Master Del Rosario alias Carinyoso at Puti. Respondents were kept in the
DTU for about two weeks. While there, he met a soldier named Efren who
said that Gen. Palparan ordered him to monitor and take care of them.
[25]

One day, Rizal Hilario fetched respondents in a Revo vehicle. They,
along with Efren and several other armed men wearing fatigue suits, went to
a detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained
for one or two weeks in a big two-storey house. Hilario and Efren stayed
with them. While there, Raymond was beaten up by Hilarios men.
[26]

From Pinaud, Hilario and Efren brought respondents to Sapang, San
Miguel, Bulacan on board the Revo. They were detained in a big unfinished
house inside the compound of Kapitan for about three months. When they
arrived in Sapang, Gen. Palparan talked to them. They were brought out of
the house to a basketball court in the center of the compound and made to
sit. Gen. Palparan was already waiting, seated. He was about two arms
length away from respondents. He began by asking if respondents felt well
already, to which Raymond replied in the affirmative. He asked Raymond if
he knew him. Raymond lied that he did not. He then asked Raymond if he
would be scared if he were made to face Gen. Palparan. Raymond
responded that he would not be because he did not believe that Gen.
Palparan was an evil man.
[27]

Raymond narrated his conversation with Gen. Palparan in his
affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo
na ako, di ka ba natatakot sa akin?
Sumagot akong, Siyempre po, natatakot din
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang
pagkakataon na mabuhay, bastat sundin nyo ang lahat ng
sasabihin ko sabihin mo sa magulang mo huwag pumunta sa
mga rali, sa hearing, sa Karapatan at sa Human Right dahil
niloloko lang kayo. Sabihin sa magulang at lahat sa bahay na
huwag paloko doon. Tulungan kami na kausapin si Bestre na
sumuko na sa gobyerno.
[28]


Respondents agreed to do as Gen. Palparan told them as they felt they
could not do otherwise. At about 3:00 in the morning, Hilario, Efren and the
formers men - the same group that abducted them - brought them to their
parents house. Raymond was shown to his parents while Reynaldo stayed
in the Revo because he still could not walk. In the presence of Hilario and
other soldiers, Raymond relayed to his parents what Gen. Palparan told
him. As they were afraid, Raymonds parents acceded. Hilario threatened
Raymonds parents that if they continued to join human rights rallies, they
would never see their children again. The respondents were then brought
back to Sapang.
[29]

When respondents arrived back in Sapang, Gen. Palparan was about
to leave. He was talking with the four masters who were there: Arman,
Ganata, Hilario and Cabalse.
[30]
When Gen. Palparan saw Raymond, he
called for him. He was in a big white vehicle. Raymond stood outside the
vehicle as Gen. Palparan told him to gain back his strength and be healthy
and to take the medicine he left for him and Reynaldo. He said the medicine
was expensive at Php35.00 each, and would make them strong. He also said
that they should prove that they are on the side of the military and warned
that they would not be given another chance.
[31]
During his testimony,
Raymond identified Gen. Palparan by his picture.
[32]

One of the soldiers named Arman made Raymond take the medicine
left by Gen. Palparan. The medicine, named Alive, was green and
yellow. Raymond and Reynaldo were each given a box of this medicine and
instructed to take one capsule a day. Arman checked if they were getting
their dose of the medicine. The Alive made them sleep each time they
took it, and they felt heavy upon waking up.
[33]

After a few days, Hilario arrived again. He took Reynaldo and left
Raymond at Sapang. Arman instructed Raymond that while in Sapang, he
should introduce himself as Oscar, a military trainee from Sariaya,
Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the
men who abducted him from his house, and got acquainted with other
military men and civilians.
[34]

After about three months in Sapang, Raymond was brought
to Camp Tecson under the 24
th
Infantry Battalion. He was fetched by three
unidentified men in a big white vehicle. Efren went with them. Raymond
was then blindfolded. After a 30-minute ride, his blindfold was
removed. Chains were put on him and he was kept in the barracks.
[35]

The next day, Raymonds chains were removed and he was ordered to
clean outside the barracks. It was then he learned that he was in a
detachment of the Rangers. There were many soldiers, hundreds of them
were training. He was also ordered to clean inside the barracks. In one of
the rooms therein, he met Sherlyn Cadapan from Laguna. She told him that
she was a student of the University of the Philippines and was abducted in
Hagonoy, Bulacan. She confided that she had been subjected to severe
torture and raped. She was crying and longing to go home and be with her
parents. During the day, her chains were removed and she was made to do
the laundry.
[36]

After a week, Reynaldo was also brought to Camp Tecson. Two days
from his arrival, two other captives, Karen Empeo and Manuel Merino,
arrived. Karen and Manuel were put in the room with Allan whose name
they later came to know as Donald Caigas, called master or commander
by his men in the 24
th
Infantry Battalion. Raymond and Reynaldo were put
in the adjoining room. At times, Raymond and Reynaldo were threatened,
and Reynaldo was beaten up. In the daytime, their chains were removed, but
were put back on at night. They were threatened that if they escaped, their
families would all be killed.
[37]

On or about October 6, 2006, Hilario arrived in Camp Tecson. He
told the detainees that they should be thankful they were still alive and
should continue along their renewed life. Before the hearing of November
6 or 8, 2006, respondents were brought to their parents to instruct them not
to attend the hearing. However, their parents had already left
for Manila. Respondents were brought back to Camp Tecson. They stayed
in that camp from September 2006 to November 2006, and Raymond was
instructed to continue using the name Oscar and holding himself out as a
military trainee. He got acquainted with soldiers of the 24
th
Infantry
Battalion whose names and descriptions he stated in his affidavit.
[38]

On November 22, 2006, respondents, along with Sherlyn, Karen, and
Manuel, were transferred to a camp of the 24
th
Infantry Battalion in
Limay, Bataan. There were many huts in the camp. They stayed in that
camp until May 8, 2007. Some soldiers of the battalion stayed with
them. While there, battalion soldiers whom Raymond knew as Mar and
Billy beat him up and hit him in the stomach with their guns. Sherlyn and
Karen also suffered enormous torture in the camp. They were all made to
clean, cook, and help in raising livestock.
[39]

Raymond recalled that when Operation Lubog was launched, Caigas
and some other soldiers brought him and Manuel with them to take and kill
all sympathizers of the NPA. They were brought to Barangay Bayan-
bayanan, Bataan where he witnessed the killing of an old man
doing kaingin. The soldiers said he was killed because he had a son who
was a member of the NPA and he coddled NPA members in his
house.
[40]
Another time, in another Operation Lubog, Raymond was
brought to Barangay Orion in a house where NPA men stayed. When they
arrived, only the old man of the house who was sick was there. They spared
him and killed only his son right before Raymonds eyes.
[41]

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were
transferred to Zambales, in a safehouse near the sea. Caigas and some of his
men stayed with them. A retired army soldier was in charge of the
house. Like in Limay, the five detainees were made to do errands and
chores. They stayed in Zambales from May 8 or 9, 2007 until June 2007.
[42]

In June 2007, Caigas brought the five back to the camp in
Limay. Raymond, Reynaldo, and Manuel were tasked to bring food to
detainees brought to the camp. Raymond narrated what he witnessed and
experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog
na kami. Nakita ko si Donald na inaayos ang kanyang baril, at
nilagyan ng silenser. Sabi ni Donald na kung mayroon man
kaming makita o marinig, walang nangyari. Kinaumagahan, nakita
naming ang bangkay ng isa sa mga bihag na dinala sa
kampo. Mayroong binuhos sa kanyang katawan at itoy
sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba
ng mga unipormadong sundalo mula sa 6 x 6 na trak at dinala sa
loob ng kampo. May naiwang mga bakas ng dugo habang hinihila
nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na
dalawang Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at
labis na binugbog. Nakita kong nakatakas ang isa sa kanila at
binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi
nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban
ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala
sa kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala
ang mga bangkay sa labas ng bakod. Kinaumagahan nakita kong
mayroong sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama
niya. Pinakain ko sila. Sabi nila sa akin na dinukot sila sa
Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat
si Manuel dahil kakausapin daw siya ni Gen.
Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas,
pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa
istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni
Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga
kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya
kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo
kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni
Donald. Tinanong kami kung ano ang sabi ni Manuel sa
amin. Sabi ni Donald huwag na raw naming hanapin ang
dalawang babae at si Manuel, dahil magkakasama na yung
tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong
buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na
kami kinakadena.
[43]


On or about June 13, 2007, Raymond and Reynaldo were brought to
Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told
respondents to also farm his land, in exchange for which, he would take care
of the food of their family. They were also told that they could farm a small
plot adjoining his land and sell their produce. They were no longer put in
chains and were instructed to use the names Rommel (for Raymond) and
Rod (for Reynaldo) and represent themselves as cousins from Rizal,
Laguna.
[44]

Respondents started to plan their escape. They could see the highway
from where they stayed. They helped farm adjoining lands for which they
were paid Php200.00 or Php400.00 and they saved their earnings. When
they had saved Php1,000.00 each, Raymond asked a neighbor how he could
get a cellular phone as he wanted to exchange text messages with a girl who
lived nearby. A phone was pawned to him, but he kept it first and did not
use it. They earned some more until they had saved Php1,400.00 between
them.
There were four houses in the compound. Raymond and Reynaldo
were housed in one of them while their guards lived in the other
three. Caigas entrusted respondents to Nonong, the head of the
guards. Respondents house did not have electricity. They used a
lamp. There was no television, but they had a radio. In the evening
of August 13, 2007, Nonong and his cohorts had a drinking session. At
about 1:00 a.m., Raymond turned up the volume of the radio. When none of
the guards awoke and took notice, Raymond and Reynaldo proceeded
towards the highway, leaving behind their sleeping guards and barking
dogs. They boarded a bus bound forManila and were thus freed from
captivity.
[45]

Reynaldo also executed an affidavit affirming the contents of
Raymonds affidavit insofar as they related to matters they witnessed
together. Reynaldo added that when they were taken from their house
on February 14, 2006, he saw the faces of his abductors before he was
blindfolded with his shirt. He also named the soldiers he got acquainted
with in the 18 months he was detained. When Raymond attempted to escape
from Fort Magsaysay, Reynaldo was severely beaten up and told that they
were indeed members of the NPA because Raymond escaped. With a .45
caliber pistol, Reynaldo was hit on the back and punched in the face until he
could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo
were in Sapang, Reynaldo was separated from Raymond and brought to
Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a friend of
Hilario, in a mountainous area. He was instructed to use the name Rodel
and to represent himself as a military trainee from Meycauayan,
Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One
time, he was brought to a market in San Jose, del Monte, Bulacan and made
to wait in the vehicle while Hilario was buying. He was also brought to
Tondo, Manila where Hilario delivered boxes of Alive in different
houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was
blindfolded while still in Bulacan, but allowed to remove the blindfold once
outside the province. In one of their trips, they passed
by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board,
Welcome to Camp Tecson.
[46]

Dr. Benito Molino, M.D., corroborated the accounts of respondents
Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic
medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly cases
where torture was involved. He was requested by an NGO to conduct
medical examinations on the respondents after their escape. He first asked
them about their ordeal, then proceeded with the physical examination. His
findings showed that the scars borne by respondents were consistent with
their account of physical injuries inflicted upon them. The examination was
conducted on August 15, 2007, two days after respondents escape, and the
results thereof were reduced into writing. Dr. Molino took photographs of
the scars. He testified that he followed the Istanbul Protocol in conducting
the examination.
[47]

Petitioners dispute respondents account of their alleged abduction and
torture. In compliance with the October 25, 2007 Resolution of the Court,
they filed a Return of the Writ of Amparo admitting the abduction but
denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at
any time arrested, forcibly abducted, detained, held
incommunicado, disappeared or under the custody by the
military. This is a settled issue laid to rest in the habeas
corpus case filed in their behalf by petitioners parents before the
Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal
Hilario aka Rollie Castillo, as head of the 24
th
Infantry Battalion;
Maj. Gen. Jovito Palparan, as Commander of the 7
th
Infantry
Division in Luzon; Lt. Gen. Hermogenes Esperon, in his capacity
as the Commanding General of the Philippine Army, and
members of the Citizens Armed Forces Geographical Unit
(CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning
dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy
Mendoza. The respondents therein submitted a return of the
writ On July 4, 2006, the Court of Appeals dropped as party
respondents Lt. Gen. Hermogenes C. Esperon, Jr., then
Commanding General of the Philippine Army, and on September
19, 2006, Maj. (sic) Jovito S. Palparan, then Commanding
General, 7
th
Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a finding that no
evidence was introduced to establish their personal involvement
in the taking of the Manalo brothers. In a Decision dated June 27,
2007, it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for
lack of evidence establishing his involvement in any capacity in
the disappearance of the Manalo brothers, although it held that the
remaining respondents were illegally detaining the Manalo
brothers and ordered them to release the latter.
[48]


Attached to the Return of the Writ was the affidavit of therein
respondent (herein petitioner) Secretary of National Defense, which attested
that he assumed office only on August 8, 2007 and was thus unaware of the
Manalo brothers alleged abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual
military directional operations, neither does he undertake
command directions of the AFP units in the field, nor in any
way micromanage the AFP operations. The principal
responsibility of the Secretary of National Defense is focused
in providing strategic policy direction to the Department
(bureaus and agencies) including the Armed Forces of
the Philippines;

8. In connection with the Writ of Amparo issued by the
Honorable Supreme Court in this case, I have directed the
Chief of Staff, AFP to institute immediate action in compliance
with Section 9(d) of the Amparo Rule and to submit report of
such compliance Likewise, in a Memorandum Directive also
dated October 31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the AFP should adopt
the following rules of action in the event the Writ of Amparo is
issued by a competent court against any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which
may aid in the prosecution of the person or persons
responsible;
(3) to identify witnesses and obtain statements from them
concerning the death or disappearance;
(4) to determine the cause, manner, location and time of death
or disappearance as well as any pattern or practice that
may have brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved
in the death or disappearance; and
(6) to bring the suspected offenders before a competent
court.
[49]


Therein respondent AFP Chief of Staff also submitted his own
affidavit, attached to the Return of the Writ, attesting that he received the
above directive of therein respondent Secretary of National Defense and that
acting on this directive, he did the following:
3.1. As currently designated Chief of Staff, Armed Forces
of the Philippines (AFP), I have caused to be issued directive to
the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent
reappearance of the petitioners.
3.2. I have caused the immediate investigation and
submission of the result thereof to Higher headquarters and/or
direct the immediate conduct of the investigation on the matter by
the concerned unit/s, dispatching Radio Message on November 05,
2007, addressed to the Commanding General, Philippine Army
(Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy
of the Radio Message is attached as ANNEX 3 of this Affidavit.
3.3. We undertake to provide result of the investigations
conducted or to be conducted by the concerned unit relative to the
circumstances of the alleged disappearance of the persons in
whose favor the Writ of Amparo has been sought for as soon as
the same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same
units relative to another Petition for the Writ of Amparo (G.R. No.
179994) filed at the instance of relatives of a certain Cadapan and
Empeo pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will
exert earnest efforts to establish the surrounding circumstances of
the disappearances of the petitioners and to bring those
responsible, including any military personnel if shown to have
participated or had complicity in the commission of the
complained acts, to the bar of justice, when warranted by the
findings and the competent evidence that may be gathered in the
process.
[50]


Also attached to the Return of the Writ was the affidavit of Lt. Col.
Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994,
another amparo case in this Court, involving Cadapan, Empeo and Merino,
which averred among others, viz:
10) Upon reading the allegations in the Petition implicating
the 24
th
Infantry Batallion detachment as detention area, I
immediately went to the 24
th
IB detachment in Limay, Bataan and
found no untoward incidents in the area nor any detainees by the
name of Sherlyn Cadapan, Karen Empeo and Manuel Merino
being held captive;
11) There was neither any reports of any death of Manuel
Merino in the 24
th
IB in Limay, Bataan;
12) After going to the 24
th
IB in Limay, Bataan, we made
further inquiries with the Philippine National Police,
Limay, Bataan regarding the alleged detentions or deaths and
were informed that none was reported to their good office;
13) I also directed Company Commander 1
st
Lt. Romeo
Publico to inquire into the alleged beachhouse in Iba, Zambales
also alleged to be a detention place where Sherlyn Cadapan,
Karen Empeo and Manuel Merino were detained. As per the
inquiry, however, no such beachhouse was used as a detention
place found to have been used by armed men to detain Cadapan,
Empeo and Merino.
[51]


It was explained in the Return of the Writ that for lack of sufficient
time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal
Hilario aka Rollie Castillo, and other persons implicated by therein
petitioners could not be secured in time for the submission of the Return and
would be subsequently submitted.
[52]

Herein petitioners presented a lone witness in the summary hearings,
Lt. Col. Ruben U. Jimenez, Provost Marshall, 7
th
Infantry Division,
Philippine Army, based in Fort Magsaysay, Palayan City, Nueva Ecija. The
territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan,
Bulacan, Pampanga, Tarlac and a portion of Pangasinan.
[53]
The
24
th
Infantry Battalion is part of the 7
th
Infantry Division.
[54]

On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding
General of the 7
th
Infantry Division, Maj. Gen. Jovito Palaran,
[55]
through his
Assistant Chief of Staff,
[56]
to investigate the alleged abduction of the
respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de
la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka
Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and
a civilian named Rudy Mendoza. He was directed to determine: (1) the
veracity of the abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative liability of
said auxiliaries, if any.
[57]
Jimenez testified that this particular investigation
was initiated not by a complaint as was the usual procedure, but because the
Commanding General saw news about the abduction of the Manalo brothers
on the television, and he was concerned about what was happening within
his territorial jurisdiction.
[58]

Jimenez summoned all six implicated persons for the purpose of
having them execute sworn statements and conducting an investigation
on May 29, 2006.
[59]
The investigation started at 8:00 in the morning and
finished at 10:00 in the evening.
[60]
The investigating officer, Technical Sgt.
Eduardo Lingad, took the individual sworn statements of all six persons on
that day. There were no other sworn statements taken, not even of the
Manalo family, nor were there other witnesses summoned and
investigated
[61]
as according to Jimenez, the directive to him was only to
investigate the six persons.
[62]

Jimenez was beside Lingad when the latter took the
statements.
[63]
The six persons were not known to Jimenez as it was in fact
his first time to meet them.
[64]
During the entire time that he was beside
Lingad, a subordinate of his in the Office of the Provost Marshall, Jimenez
did not propound a single question to the six persons.
[65]

Jimenez testified that all six statements were taken on May 29, 2006,
but Marcelo Mendoza and Rudy Mendoza had to come back the next day to
sign their statements as the printing of their statements was interrupted by a
power failure. Jimenez testified that the two signed on May 30, 2006, but
the jurats of their statements indicated that they were signed on May 29,
2006.
[66]
When the Sworn Statements were turned over to Jimenez, he
personally wrote his investigation report. He began writing it in the
afternoon of May 30, 2006 and finished it on June 1, 2006.
[67]
He then gave
his report to the Office of the Chief of Personnel.
[68]

As petitioners largely rely on Jimenezs Investigation Report
dated June 1, 2006 for their evidence, the report is herein substantially
quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND
MANALO and REYNALDO MANALO who were forcibly taken
from their respective homes in Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on 14 February 2006 by unidentified armed
men and thereafter were forcibly disappeared. After the said
incident, relatives of the victims filed a case for Abduction in the
civil court against the herein suspects: Michael dela Cruz,
Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy
Mendoza and Rudy Mendoza as alleged members of the Citizen
Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz,
aka Pula dated 29 May 2006 in (Exhibit B) states that he was at
Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church located nearby his
residence, together with some neighbor thereat. He claims that
on 15 February 2006, he was being informed by Brgy. Kagawad
Pablo Umayan about the abduction of the brothers Raymond and
Reynaldo Manalo. As to the allegation that he was one of the
suspects, he claims that they only implicated him because he was
a CAFGU and that they claimed that those who abducted the
Manalo brothers are members of the Military and
CAFGU. Subject vehemently denied any participation or
involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino
Aka Puti dtd 29 May 2006 in (Exhibit C) states that he is a
resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan and a CAA member based at Biak na Bato Detachment,
San Miguel, Bulacan. He claims that Raymond and Reynaldo
Manalo being his neighbors are active members/sympathizers of
the CPP/NPA and he also knows their elder Rolando Manalo @
KA BESTRE of being an NPA Leader operating in their
province. That at the time of the alleged abduction of the two (2)
brothers and for accusing him to be one of the suspects, he claims
that on February 14, 2006, he was one of those working at the
concrete chapel being constructed nearby his residence. He
claims further that he just came only to know about the incident
on other day (15 Feb 06) when he was being informed by
Kagawad Pablo Kunanan. That subject CAA vehemently denied
any participation about the incident and claimed that they only
implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas
dated 29 May 2006 in (Exhibit O) states that he is a resident of
Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of
CAFGU based at Biak na Bato Detachment. That being a
neighbor, he was very much aware about the background of the
two (2) brothers Raymond and Reynaldo as active supporters of
the CPP NPA in their Brgy. and he also knew their elder brother
KUMANDER BESTRE TN: Rolando Manalo. Being one of
the accused, he claims that on14 February 2006, he was at Brgy.
Magmarate, San Miguel, Bulacan in the house of his aunt and he
learned only about the incident when he arrived home in their
place. He claims further that the only reason why they implicated
him was due to the fact that his mother has filed a criminal charge
against their brother Rolando Manalo @ KA BESTRE who is an
NPA Commander who killed his father and for that reason they
implicated him in support of their brother. Subject CAA
vehemently denied any involvement on the abduction of said
Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa
dated May 29, 2006 in (Exhibit E) states that he is a resident of
Brgy. Marungko, Angat, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being his barriomate when
he was still unmarried and he knew them since childhood. Being
one of the accused, he claims that on 14 February 2006, he was at
his residence in Brgy. Marungko, Angat, Bulacan. He claims that
he was being informed only about the incident lately and he was
not aware of any reason why the two (2) brothers were being
abducted by alleged members of the military and CAFGU. The
only reason he knows why they implicated him was because there
are those people who are angry with their family particularly
victims of summary execution (killing) done by their brother @
KA Bestre Rolando Manalo who is an NPA leader. He claims
further that it was their brother @ KA BESTRE who killed his
father and he was living witness to that incident. Subject civilian
vehemently denied any involvement on the abduction of the
Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz
dated 29 May 2006 in (Exhibit F) states that he is a resident of
Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a
farmer and a former CAA based at Biak na Bato, San Miguel,
Bulacan. He claims that Raymond and Reynaldo Manalo are
familiar to him being their barrio mate. He claims further that
they are active supporters of CPP/NPA and that their brother
Rolando Manalo @ KA BESTRE is an NPA leader. Being one of
the accused, he claims that on 14 February 2006, he was in his
residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan. That he vehemently denied any participation of the
alleged abduction of the two (2) brothers and learned only about
the incident when rumors reached him by his barrio mates. He
claims that his implication is merely fabricated because of his
relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino
dated 29 May 2006 in (Exhibit G) states that he is a resident of
Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the
Chief of Brgy. Tanod and a CAFGU member based at Biak na
Bato Detachment, San Miguel, Bulacan. He claims that he knew
very well the brothers Raymond and Reynaldo Manalo in their
barangay for having been the Tanod Chief for twenty (20)
years. He alleged further that they are active supporters or
sympathizers of the CPP/NPA and whose elder brother Rolando
Manalo @ KA BESTRE is an NPA leader operating within the
area. Being one of the accused, he claims that on 14 Feb 2006 he
was helping in the construction of their concrete chapel in their
place and he learned only about the incident which is the
abduction of Raymond and Reynaldo Manalo when one of the
Brgy. Kagawad in the person of Pablo Cunanan informed him
about the matter. He claims further that he is truly innocent of the
allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that
remains loyal to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this
particular case, the proof of linking them to the alleged abduction
and disappearance of Raymond and Reynaldo Manalo that
transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their
alleged involvement theretofore to that incident is considered
doubtful, hence, no basis to indict them as charged in this
investigation.
Though there are previous grudges between each families
(sic) in the past to quote: the killing of the father of Randy and
Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this
will not suffice to establish a fact that they were the ones who did
the abduction as a form of revenge. As it was also stated in the
testimony of other accused claiming that the Manalos are active
sympathizers/supporters of the CPP/NPA, this would not also
mean, however, that in the first place, they were in connivance
with the abductors. Being their neighbors and as members of
CAFGUs, they ought to be vigilant in protecting their village
from any intervention by the leftist group, hence inside their
village, they were fully aware of the activities of Raymond and
Reynaldo Manalo in so far as their connection with the CPP/NPA
is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that
the alleged charges of abduction committed by the above named
respondents has not been established in this investigation. Hence,
it lacks merit to indict them for any administrative punishment
and/or criminal liability. It is therefore concluded that they are
innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela
Cruz, Roman dela Cruz, Randy Mendoza, and two (2) civilians
Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from
the case.
8. Upon approval, this case can be dropped and
closed.
[69]


In this appeal under Rule 45, petitioners question the appellate courts
assessment of the foregoing evidence and assail the December 26, 2007
Decision on the following grounds, viz:
I.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN BELIEVING AND GIVING FULL FAITH AND
CREDIT TO THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED,
REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT
RAYMOND MANALO.

II.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN REQUIRING RESPONDENTS (HEREIN
PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF THE
INVESTIGATION UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH
THE COURT; (B) CONFIRM IN WRITING THE PRESENT
PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO
aka ROLLIE CASTILLO AND DONALD CAIGAS; AND (C)
CAUSE TO BE PRODUCED TO THE COURT OF APPEALS
ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR
RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY,
TO THE MANALO BROTHERS, TO INCLUDE A LIST OF
MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO
ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL
AUGUST 12, 2007.
[70]


The case at bar is the first decision on the application of the Rule on
the Writ of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition
in the recommendations that resulted from a two-day National Consultative
Summit on Extrajudicial Killings and Enforced Disappearances sponsored
by the Court on July 16-17, 2007. The Summit was envisioned to provide a
broad and fact-based perspective on the issue of extrajudicial killings and
enforced disappearances,
[71]
hence representatives from all sides of the
political and social spectrum, as well as all the stakeholders in the justice
system
[72]
participated in mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule in
light of the prevalence of extralegal killing and enforced
disappearances.
[73]
It was an exercise for the first time of the Courts
expanded power to promulgate rules to protect our peoples constitutional
rights, which made its maiden appearance in the 1987 Constitution in
response to the Filipino experience of the martial law regime.
[74]
As
the Amparo Rule was intended to address the intractable problem of
extralegal killings and enforced disappearances, its coverage, in its
present form, is confined to these two instances or to threats
thereof. Extralegal killings are killings committed without due process of
law, i.e., without legal safeguards or judicial proceedings.
[75]
On the other
hand, enforced disappearances are attended by the following
characteristics: an arrest, detention or abduction of a person by a government
official or organized groups or private individuals acting with the direct or
indirect acquiescence of the government; the refusal of the State to disclose
the fate or whereabouts of the person concerned or a refusal to acknowledge
the deprivation of liberty which places such persons outside the protection of
law.
[76]

The writ of amparo originated in Mexico. Amparo literally means
protection in Spanish.
[77]
In 1837, de Tocquevilles Democracy in
America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S. appealed to many
Mexican jurists.
[78]
One of them, Manuel Crescencio Rejn, drafted a
constitutional provision for his native state, Yucatan,
[79]
which granted
judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national
constitution in 1847, viz:
The federal courts shall protect any inhabitant of the
Republic in the exercise and preservation of those rights granted
to him by this Constitution and by laws enacted pursuant hereto,
against attacks by the Legislative and Executive powers of the
federal or state governments, limiting themselves to granting
protection in the specific case in litigation, making no general
declaration concerning the statute or regulation that motivated the
violation.
[80]


Since then, the protection has been an important part of Mexican
constitutionalism.
[81]
If, after hearing, the judge determines that a
constitutional right of the petitioner is being violated, he orders the official,
or the officials superiors, to cease the violation and to take the necessary
measures to restore the petitioner to the full enjoyment of the right in
question. Amparo thus combines the principles of judicial review derived
from the U.S. with the limitations on judicial power characteristic of the
civil law tradition which prevails in Mexico. It enables courts to enforce the
constitution by protecting individual rights in particular cases, but prevents
them from using this power to make law for the entire nation.
[82]

The writ of amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular needs of
each country.
[83]
It became, in the words of a justice of the Mexican Federal
Supreme Court, one piece of Mexicos self-attributed task of conveying to
the worlds legal heritage that institution which, as a shield of human
dignity, her own painful history conceived.
[84]
What began as a protection
against acts or omissions of public authorities in violation of constitutional
rights later evolved for several purposes: (1) amparo libertad for the
protection of personal freedom, equivalent to the habeas corpus writ;
(2) amparo contra leyes for the judicial review of the constitutionality of
statutes; (3) amparo casacion for the judicial review of the constitutionality
and legality of a judicial decision; (4) amparo administrativo for the judicial
review of administrative actions; and (5) amparo agrario for the protection
of peasants rights derived from the agrarian reform process.
[85]

In Latin American countries, except Cuba, the writ of amparo has
been constitutionally adopted to protect against human rights abuses
especially committed in countries under military juntas. In general, these
countries adopted an all-encompassing writ to protect the whole gamut of
constitutional rights, including socio-economic rights.
[86]
Other countries
like Colombia, Chile, Germany and Spain, however, have chosen to limit the
protection of the writ of amparo only to some constitutional guarantees or
fundamental rights.
[87]

In the Philippines, while the 1987 Constitution does not explicitly
provide for the writ of amparo, several of the above amparo protections are
guaranteed by our charter. The second paragraph of Article VIII, Section 1
of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial
power to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. The Clause accords a similar
general protection to human rights extended by the amparo contra
leyes, amparo casacion, and amparo administrativo. Amparo libertad is
comparable to the remedy of habeas corpus found in several provisions of
the 1987 Constitution.
[88]
The Clause is an offspring of the U.S. common
law tradition of judicial review, which finds its roots in the 1803 case
of Marbury v. Madison.
[89]

While constitutional rights can be protected under the Grave Abuse
Clause through remedies of injunction or prohibition under Rule 65 of the
Rules of Court and a petition for habeas corpus under Rule 102,
[90]
these
remedies may not be adequate to address the pestering problem of extralegal
killings and enforced disappearances. However, with the swiftness required
to resolve a petition for a writ of amparo through summary proceedings and
the availability of appropriate interim and permanent reliefs under
the Amparo Rule, this hybrid writ of the common law and civil law
traditions - borne out of the Latin American and Philippine experience of
human rights abuses - offers a better remedy to extralegal killings and
enforced disappearances and threats thereof. 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.
[91]

The writ of amparo serves both preventive and curative roles in
addressing the problem of extralegal killings and enforced
disappearances. It is preventive in that it breaks the expectation of impunity
in the commission of these offenses; it is curative in that it facilitates the
subsequent punishment of perpetrators as it will inevitably yield leads to
subsequent investigation and action. In the long run, the goal of both the
preventive and curative roles is to deter the further commission of extralegal
killings and enforced disappearances.
In the case at bar, respondents initially filed an action for Prohibition,
Injunction, and Temporary Restraining Order
[92]
to stop petitioners and/or
their officers and agents from depriving the respondents of their right to
liberty and other basic rights on August 23, 2007,
[93]
prior to the
promulgation of the Amparo Rule. They also sought ancillary remedies
including Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders and other legal and equitable remedies under
Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6
of the Rules of Court. When the Amparo Rule came into effect on October
24, 2007, they moved to have their petition treated as an amparo petition as
it would be more effective and suitable to the circumstances of the Manalo
brothers enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the
petitioner. Petitioners first argument in disputing the Decision of the Court
of Appeals states, viz:
The Court of Appeals seriously and grievously erred in
believing and giving full faith and credit to the incredible
uncorroborated, contradicted, and obviously scripted, rehearsed
and self-serving affidavit/testimony of herein respondent
Raymond Manalo.
[94]


In delving into the veracity of the evidence, we need to mine and
refine the ore of petitioners cause of action, to determine whether the
evidence presented is metal-strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the
following causes of action, viz:
Section 1. Petition. The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty and
security is violated or threatened with violationby an unlawful
act or omission of a public official or employee, or of a private
individual or entity.

The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof
required, viz:
Sec. 17. Burden of Proof and Standard of Diligence
Required. The parties shall establish their claims by substantial
evidence.

xxx xxx xxx

Sec. 18. Judgment. If the allegations in the petition
are proven by substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and
appropriate; otherwise, the privilege shall be denied. (emphases
supplied)

Substantial evidence has been defined as such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
[95]

After careful perusal of the evidence presented, we affirm the findings
of the Court of Appeals that respondents were abducted from their houses in
Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February
14, 2006 and were continuously detained until they escaped on August 13,
2007. The abduction, detention, torture, and escape of the respondents were
narrated by respondent Raymond Manalo in a clear and convincing
manner. His account is dotted with countless candid details of respondents
harrowing experience and tenacious will to escape, captured through his
different senses and etched in his memory. A few examples are the
following: Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.
[96]
(N)ilakasan ng mga sundalo ang tunog na galing
sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni
Manuel.
[97]
May naiwang mga bakas ng dugo habang hinihila nila ang
mga bangkay. Naamoy ko iyon nang nililinis ang bakas.
[98]
Tumigil ako
sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga
kadena.
[99]
Tinanong ko sa isang kapit-bahay kung paano ako makakakuha
ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa
malapit na lugar.
[100]

We affirm the factual findings of the appellate court, largely based on
respondent Raymond Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who were
sufficiently identified by the petitioners (herein respondents) to be
military personnel and CAFGU auxiliaries. Raymond recalled that
the six armed men who barged into his house through the rear door
were military men based on their attire of fatigue pants and army
boots, and the CAFGU auxiliaries, namely: Michael de la Cruz,
Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all
members of the CAFGU and residents of Muzon, San Ildefonso,
Bulacan, and the brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during the
abduction. Raymond was sure that three of the six military men
were Ganata, who headed the abducting team, Hilario, who drove
the van, and George. Subsequent incidents of their long captivity,
as narrated by the petitioners, validated their assertion of the
participation of the elements of the 7
th
Infantry Division, Philippine
Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction
was the suspicion that the petitioners were either members or
sympathizers of the NPA, considering that the abductors were
looking for Ka Bestre, who turned out to be Rolando, the brother
of petitioners.
The efforts exerted by the Military Command to look into
the abduction were, at best, merely superficial. The investigation
of the Provost Marshall of the 7
th
Infantry Division focused on the
one-sided version of the CAFGU auxiliaries involved. This one-
sidedness might be due to the fact that the Provost Marshall could
delve only into the participation of military personnel, but even
then the Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily investigated
Gen. Palparans participation in the abduction was also
established. At the very least, he was aware of the petitioners
captivity at the hands of men in uniform assigned to his
command. In fact, he or any other officer tendered no
controversion to the firm claim of Raymond that he (Gen.
Palparan) met them in person in a safehouse in Bulacan and told
them what he wanted them and their parents to do or not to be
doing. Gen. Palparans direct and personal role in the abduction
might not have been shown but his knowledge of the dire situation
of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command
policy that unavoidably encouraged and not merely tolerated the
abduction of civilians without due process of law and without
probable cause.
In the habeas proceedings, the Court, through the Former
Special Sixth Division (Justices Buzon, chairman; Santiago-
Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.)
found no clear and convincing evidence to establish that M/Sgt.
Rizal Hilario had anything to do with the abduction or the
detention. Hilarios involvement could not, indeed, be then
established after Evangeline Francisco, who allegedly saw Hilario
drive the van in which the petitioners were boarded and ferried
following the abduction, did not testify. (See the decision of the
habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove
the white L-300 van in which the petitioners were brought away
from their houses on February 14, 2006. Raymond also attested
that Hilario participated in subsequent incidents during the
captivity of the petitioners, one of which was when Hilario fetched
them from Fort Magsaysay on board a Revo and conveyed them to
a detachment in Pinaud, San Ildefonso, Bulacan where they were
detained for at least a week in a house of strong materials (Exhibit
D, rollo, p. 205) and then Hilario (along with Efren) brought them
to Sapang, San Miguel, Bulacan on board the Revo, to an
unfinished house inside the compound of Kapitan where they were
kept for more or less three months. (Exhibit D, rollo, p. 205) It
was there where the petitioners came face to face with Gen.
Palparan. Hilario and Efren also brought the petitioners one early
morning to the house of the petitioners parents, where only
Raymond was presented to the parents to relay the message from
Gen. Palparan not to join anymore rallies. On that occasion,
Hilario warned the parents that they would not again see their sons
should they join any rallies to denounce human rights violations.
(Exhibit D, rollo, pp. 205-206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and Cabalse) with
whom Gen. Palparan conversed on the occasion when Gen.
Palparan required Raymond to take the medicines for his health.
(Exhibit D, rollo, p. 206) There were other occasions when the
petitioners saw that Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the
abduction and forced disappearance of the petitioners was
established. The participation of other military personnel like
Arman, Ganata, Cabalse and Caigas, among others, was similarly
established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them
personally involved in the abduction. We also do, for, indeed, the
evidence of their participation is overwhelming.
[101]

We reject the claim of petitioners that respondent Raymond Manalos
statements were not corroborated by other independent and credible pieces
of evidence.
[102]
Raymonds affidavit and testimony were corroborated by
the affidavit of respondent Reynaldo Manalo. The testimony and medical
reports prepared by forensic specialist Dr. Molino, and the pictures of the
scars left by the physical injuries inflicted on respondents,
[103]
also
corroborate respondents accounts of the torture they endured while in
detention. Respondent Raymond Manalos familiarity with the facilities in
Fort Magsaysay such as the DTU, as shown in his testimony and
confirmed by Lt. Col. Jimenez to be the Division Training Unit,
[104]
firms
up respondents story that they were detained for some time in said military
facility.
In Ortiz v. Guatemala,
[105]
a case decided by the Inter-American
Commission on Human Rights, the Commission considered similar
evidence, among others, in finding that complainant Sister Diana Ortiz was
abducted and tortured by agents of the Guatemalan government. In this
case, Sister Ortiz was kidnapped and tortured in early November 1989. The
Commissions findings of fact were mostly based on the consistent and
credible statements, written and oral, made by Sister Ortiz regarding her
ordeal.
[106]
These statements were supported by her recognition of portions
of the route they took when she was being driven out of the military
installation where she was detained.
[107]
She was also examined by a
medical doctor whose findings showed that the 111 circular second degree
burns on her back and abrasions on her cheek coincided with her account of
cigarette burning and torture she suffered while in detention.
[108]

With the secret nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it logically holds that much of
the information and evidence of the ordeal will come from the victims
themselves, and the veracity of their account will depend on their credibility
and candidness in their written and/or oral statements. Their statements can
be corroborated by other evidence such as physical evidence left by the
torture they suffered or landmarks they can identify in the places where they
were detained. Where powerful military officers are implicated, the
hesitation of witnesses to surface and testify against them comes as no
surprise.
We now come to the right of the respondents to the privilege of the
writ of amparo. There is no quarrel that the enforced disappearance of both
respondents Raymond and Reynaldo Manalo has now passed as they have
escaped from captivity and surfaced. But while respondents admit that they
are no longer in detention and are physically free, they assert that they are
not free in every sense of the word
[109]
as their movements continue to be
restricted for fear that people they have named in their Judicial Affidavits
and testified against (in the case of Raymond) are still at large and have not
been held accountable in any way. These people are directly connected to
the Armed Forces of the Philippines and are, thus, in a position to threaten
respondents rights to life, liberty and security.
[110]
(emphasis supplied)
Respondents claim that they are under threat of being once again
abducted, kept captive or even killed, which constitute a direct violation
of their right to security of person.
[111]

Elaborating on the right to security, in general, respondents point
out that this right is often associated with liberty; it is also seen as an
expansion of rights based on the prohibition against torture and cruel and
unusual punishment. Conceding that there is no right to security expressly
mentioned in Article III of the 1987 Constitution, they submit that their
rights to be kept free from torture and from incommunicado detention and
solitary detention places
[112]
fall under the general coverage of the right to
security of person under the writ of Amparo. They submit that the Court
ought to give an expansive recognition of the right to security of person in
view of the State Policy under Article II of the 1987 Constitution which
enunciates that, The State values the dignity of every human person and
guarantees full respect for human rights. Finally, to justify a liberal
interpretation of the right to security of person, respondents cite the teaching
in Moncupa v. Enrile
[113]
that the right to liberty may be made more
meaningful only if there is no undue restraint by the State on the exercise of
that liberty
[114]
such as a requirement to report under unreasonable
restrictions that amounted to a deprivation of liberty
[115]
or being put under
monitoring and surveillance.
[116]

In sum, respondents assert that their cause of action consists in
the threat to their right to life and liberty, and a violation of their right
to security.
Let us put this right to security under the lens to determine if it
has indeed been violated as respondents assert. The right to security or
the right to security of person finds a textual hook in Article III, Section 2
of the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by
the judge

At the core of this guarantee is the immunity of ones person,
including the extensions of his/her person houses, papers, and effects
against government intrusion. Section 2 not only limits the states power
over a persons home and possessions, but more importantly, protects the
privacy and sanctity of the person himself.
[117]
The purpose of this provision
was enunciated by the Court in People v. CFI of Rizal, Branch
IX, Quezon City, viz:
[118]

The purpose of the constitutional guarantee against unreasonable
searches and seizures is to prevent violations of private security
in person and property and unlawful invasion of the security of the
home by officers of the law acting under legislative or judicial
sanction and to give remedy against such usurpation when
attempted. (Adams v. New York, 192 U.S.858; Alvero v. Dizon, 76
Phil. 637 [1946]). The right to privacy is an essential condition to
the dignity and happiness and to the peace and security of
every individual, whether it be of home or of persons and
correspondence. (Taada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of
this great fundamental right against unreasonable searches and
seizures must be deemed absolute as nothing is closer to a mans
soul than the serenity of his privacy and the assurance of his
personal security. Any interference allowable can only be for the
best causes and reasons.
[119]
(emphases supplied)

While the right to life under Article III, Section 1
[120]
guarantees
essentially the right to be alive
[121]
- upon which the enjoyment of all other
rights is preconditioned - the right to security of person is a guarantee of the
secure quality of this life, viz: The life to which each person has a right is
not a life lived in fear that his person and property may be unreasonably
violated by a powerful ruler. Rather, it is a life lived with the assurance that
the government he established and consented to, will protect the security of
his person and property. The ideal of security in life and property
pervades the whole history of man. It touches every aspect of mans
existence.
[122]
In a broad sense, the right to security of person emanates in
a persons legal and uninterrupted enjoyment of his life, his limbs, his body,
his health, and his reputation. It includes the right to exist, and the right to
enjoyment of life while existing, and it is invaded not only by a deprivation
of life but also of those things which are necessary to the enjoyment of life
according to the nature, temperament, and lawful desires of the
individual.
[123]

A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is freedom from fear. In its
whereas clauses, the Universal Declaration of Human Rights (UDHR)
enunciates that a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want has been proclaimed as
the highest aspiration of the common people. (emphasis supplied) Some
scholars postulate that freedom from fear is not only an aspirational
principle, but essentially an individual international human right.
[124]
It is
the right to security of person as the word security itself means
freedom from fear.
[125]
Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.
[126]
(emphasis
supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of
the International Covenant on Civil and Political Rights (ICCPR) also
provides for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be deprived
of his liberty except on such grounds and in accordance with such
procedure as are established by law. (emphasis supplied)

The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, freedom from fear is
the right and any threat to the rights to life, liberty or security is
the actionable wrong. Fear is a state of mind, a reaction; threat is a
stimulus, a cause of action. Fear caused by the same stimulus can range
from being baseless to well-founded as people react differently. The degree
of fear can vary from one person to another with the variation of the
prolificacy of their imagination, strength of character or past experience with
the stimulus. Thus, in the amparo context, it is more correct to say that the
right to security is actually the freedom from threat. Viewed in this
light, the threatened with violation Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right to security mentioned in
the earlier part of the provision.
[127]

Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, ones body cannot be searched
or invaded without a search warrant.
[128]
Physical injuries inflicted in the
context of extralegal killings and enforced disappearances constitute more
than a search or invasion of the body. It may constitute dismemberment,
physical disabilities, and painful physical intrusion. As the degree of
physical injury increases, the danger to life itself escalates. Notably, in
criminal law, physical injuries constitute a crime against persons because
they are an affront to the bodily integrity or security of a person.
[129]

Physical torture, force, and violence are a severe invasion of bodily
integrity. When employed to vitiate the free will such as to force the victim
to admit, reveal or fabricate incriminating information, it constitutes an
invasion of both bodily and psychological integrity as the dignity of the
human person includes the exercise of free will. Article III, Section 12 of
the 1987 Constitution more specifically proscribes bodily and psychological
invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any
other means which vitiate the free will shall be used against him
(any person under investigation for the commission of an
offense). Secret detention places, solitary, incommunicado or
other similar forms of detention are prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the
free will - although not involving invasion of bodily integrity - nevertheless
constitute a violation of the right to security in the sense of freedom from
threat as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses
of persons under investigation for the commission of an offense. Victims of
enforced disappearances who are not even under such investigation should all
the more be protected from these degradations.
An overture to an interpretation of the right to security of person as a
right against torture was made by the European Court of Human Rights
(ECHR) in the recent case of Popov v. Russia.
[130]
In this case, the
claimant, who was lawfully detained, alleged that the state authorities had
physically abused him in prison, thereby violating his right to security of
person. Article 5(1) of the European Convention on Human Rights
provides, viz: Everyone has the right to liberty andsecurity of person. No
one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law ... (emphases
supplied) Article 3, on the other hand, provides that (n)o one shall be
subjected to torture or to inhuman or degrading treatment or
punishment. Although the application failed on the facts as the alleged ill-
treatment was found baseless, the ECHR relied heavily on the concept of
security in holding, viz:
...the applicant did not bring his allegations to the attention of
domestic authorities at the time when they could reasonably have
been expected to take measures in order to ensure his security and
to investigate the circumstances in question.

xxx xxx xxx

... the authorities failed to ensure his security in custody or to
comply with the procedural obligation under Art.3 to conduct an
effective investigation into his allegations.
[131]
(emphasis supplied)

The U.N. Committee on the Elimination of Discrimination against
Women has also made a statement that the protection of the bodily integrity
of women may also be related to the right to security and liberty, viz:
gender-based violence which impairs or nullifies the enjoyment
by women of human rights and fundamental freedoms under
general international law or under specific human rights
conventions is discrimination within the meaning of article 1 of the
Convention (on the Elimination of All Forms of Discrimination
Against Women). These rights and freedoms include . . . the right
to liberty and security of person.
[132]


Third, the right to security of person is a guarantee of protection
of ones rights by the government. In the context of the writ of amparo,
this right is built into the guarantees of the right to life and liberty under
Article III, Section 1 of the 1987 Constitution and the right to security of
person (as freedom from threat and guarantee of bodily and psychological
integrity) under Article III, Section 2. The right to security of person in this
third sense is a corollary of the policy that the State guarantees full respect
for human rights under Article II, Section 11 of the 1987
Constitution.
[133]
As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government does not afford
protection to these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-American Court of Human Rights
stressed the importance of investigation in the Velasquez Rodriguez
Case,
[134]
viz:
(The duty to investigate) must be undertaken in a serious
manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of
the victim or his family or upon their offer of proof, without an
effective search for the truth by the government.
[135]


This third sense of the right to security of person as a guarantee of
government protection has been interpreted by the United Nations Human
Rights Committee
[136]
in not a few cases involving Article 9
[137]
of the
ICCPR. While the right to security of person appears in conjunction with
the right to liberty under Article 9, the Committee has ruled that the right to
security of person can exist independently of the right to liberty. In
other words, there need not necessarily be a deprivation of liberty for the
right to security of person to be invoked. In Delgado Paez v.
Colombia,
[138]
a case involving death threats to a religion teacher at a
secondary school in Leticia, Colombia, whose social views differed from
those of the Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate
paragraph. Its location as a part of paragraph one could lead to the view
that the right to security arises only in the context of arrest and detention.
The travaux prparatoires indicate that the discussions of the first
sentence did indeed focus on matters dealt with in the other provisions of
article 9.The Universal Declaration of Human Rights, in article 3,
refers to the right to life, the right to liberty and the right to security
of the person. These elements have been dealt with in separate clauses
in the Covenant. Although in the Covenant the only reference to the
right of security of person is to be found in article 9, there is no
evidence that it was intended to narrow the concept of the right to
security only to situations of formal deprivation of liberty. At the
same time, States parties have undertaken to guarantee the rights
enshrined in the Covenant. It cannot be the case that, as a matter of
law, States can ignore known threats to the life of persons under their
jurisdiction, just because that he or she is not arrested or otherwise
detained. States parties are under an obligation to take reasonable
and appropriate measures to protect them. An interpretation of
article 9 which would allow a State party to ignore threats to the
personal security of non-detained persons within its jurisdiction
would render totally ineffective the guarantees of the
Covenant.
[139]
(emphasis supplied)

The Paez ruling was reiterated in Bwalya v.
Zambia,
[140]
which involved a political activist and prisoner of conscience
who continued to be intimidated, harassed, and restricted in his movements
following his release from detention. In a catena of cases, the ruling of the
Committee was of a similar import: Bahamonde v. Equatorial
Guinea,
[141]
involving discrimination, intimidation and persecution of
opponents of the ruling party in that state; Tshishimbi v.
Zaire,
[142]
involving the abduction of the complainants husband who was a
supporter of democratic reform in Zaire; Dias v. Angola,
[143]
involving
the murder of the complainants partner and the harassment he
(complainant) suffered because of his investigation of the murder;
and Chongwe v. Zambia,
[144]
involving an assassination attempt on the
chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has
interpreted the right to security not only as prohibiting the State from
arbitrarily depriving liberty, but imposing a positive duty on the State to
afford protection of the right to liberty.
[145]
The ECHR interpreted the right
to security of person under Article 5(1) of the European Convention of
Human Rights in the leading case on disappearance of persons, Kurt
v. Turkey.
[146]
In this case, the claimants son had been arrested by state
authorities and had not been seen since. The familys requests for
information and investigation regarding his whereabouts proved futile. The
claimant suggested that this was a violation of her sons right to security of
person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been
effected in conformity with the substantive and procedural rules
of national law but must equally be in keeping with the very
purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual it is
incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as
requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a
person has been taken into custody and has not been seen
since.
[147]
(emphasis supplied)

Applying the foregoing concept of the right to security of person to
the case at bar, we now determine whether there is a continuing violation of
respondents right to security.
First, the violation of the right to security as freedom from threat
to respondents life, liberty and security.
While respondents were detained, they were threatened that if they
escaped, their families, including them, would be killed. In Raymonds
narration, he was tortured and poured with gasoline after he was caught the
first time he attempted to escape from Fort Magsaysay. A call from a
certain Mam, who wanted to see him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the
threat to be killed has come to pass. It should be stressed that they are now
free from captivity not because they were released by virtue of a lawful
order or voluntarily freed by their abductors. It ought to be recalled that
towards the end of their ordeal, sometime in June 2007 when respondents
were detained in a camp in Limay, Bataan, respondents captors even told
them that they were still deciding whether they should be
executed. Respondent Raymond Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena
mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.
[148]


The possibility of respondents being executed stared them in the eye
while they were in detention. With their escape, this continuing threat to
their life is apparent, moreso now that they have surfaced and implicated
specific officers in the military not only in their own abduction and torture,
but also in those of other persons known to have disappeared such as
Sherlyn Cadapan, Karen Empeo, and Manuel Merino, among others.
Understandably, since their escape, respondents have been under
concealment and protection by private citizens because of the threat to their
life, liberty and security. The threat vitiates their free will as they are forced
to limit their movements or activities.
[149]
Precisely because respondents are
being shielded from the perpetrators of their abduction, they cannot be
expected to show evidence of overt acts of threat such as face-to-face
intimidation or written threats to their life, liberty and
security. Nonetheless, the circumstances of respondents abduction,
detention, torture and escape reasonably support a conclusion that there is an
apparent threat that they will again be abducted, tortured, and this time, even
executed. These constitute threats to their liberty, security, and life,
actionable through a petition for a writ of amparo.
Next, the violation of the right to security as protection by the
government. Apart from the failure of military elements to provide
protection to respondents by themselves perpetrating the abduction,
detention, and torture, they also miserably failed in conducting an effective
investigation of respondents abduction as revealed by the testimony and
investigation report of petitioners own witness, Lt. Col. Ruben Jimenez,
Provost Marshall of the 7
th
Infantry Division.
The one-day investigation conducted by Jimenez was very limited,
superficial, and one-sided. He merely relied on the Sworn Statements of the
six implicated members of the CAFGU and civilians whom he met in the
investigation for the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but he did not
propound a single question to ascertain the veracity of their statements or
their credibility. He did not call for other witnesses to test the alibis given
by the six implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense attested that
in a Memorandum Directive dated October 31, 2007, he issued a policy
directive addressed to the AFP Chief of Staff, that the AFP should adopt
rules of action in the event the writ of amparo is issued by a competent court
against any members of the AFP, which should essentially include
verification of the identity of the aggrieved party; recovery and preservation
of relevant evidence; identification of witnesses and securing statements
from them; determination of the cause, manner, location and time of death
or disappearance; identification and apprehension of the person or persons
involved in the death or disappearance; and bringing of the suspected
offenders before a competent court.
[150]
Petitioner AFP Chief of Staff also
submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive,
he immediately caused to be issued a directive to the units of the AFP for
the purpose of establishing the circumstances of the alleged disappearance
and the recent reappearance of the respondents, and undertook to provide
results of the investigations to respondents.
[151]
To this day, however,
almost a year after the policy directive was issued by petitioner Secretary of
National Defense on October 31, 2007, respondents have not been furnished
the results of the investigation which they now seek through the instant
petition for a writ of amparo.
Under these circumstances, there is substantial evidence to warrant
the conclusion that there is a violation of respondents right to security as a
guarantee of protection by the government.
In sum, we conclude that respondents right to security as freedom
from threat is violated by the apparent threat to their life, liberty and
security of person. Their right to security as a guarantee of protection by the
government is likewise violated by the ineffective investigation and
protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which
petitioners question.
First, that petitioners furnish respondents all official and unofficial
reports of the investigation undertaken in connection with their case,
except those already in file with the court.
Second, that petitioners confirm in writing the present places of
official assignment of M/Sgt. Hilario aka Rollie Castillo and Donald
Caigas.
Third, that petitioners cause to be produced to the Court of Appeals
all medical reports, records and charts, and reports of any treatment
given or recommended and medicines prescribed, if any, to the Manalo
brothers, to include a list of medical personnel (military and civilian)
who attended to them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the
production order sought by respondents partakes of the characteristics of a
search warrant. Thus, they claim that the requisites for the issuance of a
search warrant must be complied with prior to the grant of the production
order, namely: (1) the application must be under oath or affirmation; (2) the
search warrant must particularly describe the place to be searched and the
things to be seized; (3) there exists probable cause with one specific offense;
and (4) the probable cause must be personally determined by the judge after
examination under oath or affirmation of the complainant and the witnesses
he may produce.
[152]
In the case at bar, however, petitioners point out that
other than the bare, self-serving and vague allegations made by respondent
Raymond Manalo in his unverified declaration and affidavit, the documents
respondents seek to be produced are only mentioned generally by name,
with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the
present case as the involvement of petitioners in the abduction has not been
shown.
Petitioners arguments do not hold water. The production order under
the Amparo Rule should not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987 Constitution. This
Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the
demand of the people such as respondents.
Instead, the amparo production order may be likened to the production
of documents or things under Section 1, Rule 27 of the Rules of Civil
Procedure which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the
court in which an action is pending may (a) order any party to
produce and permit the inspection and copying or photographing,
by or on behalf of the moving party, of any designated documents,
papers, books of accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his
possession, custody or control

In Material Distributors (Phil.) Inc. v. Judge Natividad,
[153]
the
respondent judge, under authority of Rule 27, issued a subpoena duces
tecum for the production and inspection of among others, the books and
papers of Material Distributors (Phil.) Inc. The company questioned the
issuance of the subpoena on the ground that it violated the search and seizure
clause. The Court struck down the argument and held that
the subpoena pertained to a civil procedure that cannot be identified or
confused with unreasonable searches prohibited by the Constitution
Moreover, in his affidavit, petitioner AFP Chief of Staff himself
undertook to provide results of the investigations conducted or to be
conducted by the concerned unit relative to the circumstances of the alleged
disappearance of the persons in whose favor the Writ of Amparo has been
sought for as soon as the same has been furnished Higher headquarters.
With respect to the second and third reliefs, petitioners assert that
the disclosure of the present places of assignment of M/Sgt. Hilario aka
Rollie Castillo and Donald Caigas, as well as the submission of a list of
medical personnel, is irrelevant, improper, immaterial, and unnecessary in
the resolution of the petition for a writ ofamparo. They add that it will
unnecessarily compromise and jeopardize the exercise of official functions
and duties of military officers and even unwittingly and unnecessarily
expose them to threat of personal injury or even death.
On the contrary, the disclosure of the present places of assignment of
M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom respondents
both directly implicated as perpetrators behind their abduction and detention,
is relevant in ensuring the safety of respondents by avoiding their areas of
territorial jurisdiction. Such disclosure would also help ensure that these
military officers can be served with notices and court processes in relation to
any investigation and action for violation of the respondents rights. The list
of medical personnel is also relevant in securing information to create the
medical history of respondents and make appropriate medical interventions,
when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and
security, these rights are snuffed out from victims of extralegal killings and
enforced disappearances. The writ of amparo is a tool that gives voice to
preys of silent guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition
is DISMISSED. The Decision of the Court of Appeals dated December 26,
2007 is affirmed.