Republic of the Philippines SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 162421 August 31, 2007

NELSON CABALES and RITO CABALES, Petitioners, vs. COURT OF APPEALS, JESUS FELIANO and ANUNCIACION FELIANO, Respondents.

D E C I S I O N

PUNO, C.J.:

This is a petition for review on certiorari seeking the reversal of the decision1 of the Court of Appeals dated October 27, 2003, in CA-G.R. CV No. 68319 entitled "Nelson Cabales and Rito Cabales v. Jesus Feliano and Anunciacion Feliano," which affirmed with modification the decision2 of the Regional Trial Court of Maasin, Southern Leyte, Branch 25, dated August 11, 2000, in Civil Case No. R-2878. The resolution of the Court of Appeals dated February 23, 2004, which denied petitioners’ motion for reconsideration, is likewise herein assailed.

The facts as found by the trial court and the appellate court are well established.

Rufino Cabales died on July 4, 1966 and left a 5,714-square meter parcel of land located in Brgy. Rizal, Sogod, Southern Leyte, covered by Tax Declaration No. 17270 to his surviving wife Saturnina and children Bonifacio, Albino, Francisco, Leonora, Alberto and petitioner Rito.

On July 26, 1971, brothers and co-owners Bonifacio, Albino and Alberto sold the subject property to Dr. Cayetano Corrompido for P2,000.00, with right to repurchase within eight (8) years. The three (3) siblings divided the proceeds of the sale among themselves, each getting a share of P666.66.

The following month or on August 18, 1971, Alberto secured a note ("vale") from Dr. Corrompido in the amount ofP300.00.

In 1972, Alberto died leaving his wife and son, petitioner Nelson.

On December 18, 1975, within the eight-year redemption period, Bonifacio and Albino tendered their payment ofP666.66 each to Dr. Corrompido. But Dr. Corrompido only released the document of sale with pacto de retro after Saturnina paid for the share of her deceased son, Alberto, including his "vale" of P300.00.

On even date, Saturnina and her four (4) children Bonifacio, Albino, Francisco and Leonora sold the subject parcel of land to respondents-spouses Jesus and Anunciacion Feliano for P8,000.00. The Deed of Sale provided in its last paragraph, thus:

It is hereby declared and understood that the amount of TWO THOUSAND TWO HUNDRED EIGHTY SIX PESOS (P2,286.00) corresponding and belonging to the Heirs of Alberto Cabales and to Rito Cabales who are still minors upon the execution of this instrument are held

in trust by the VENDEE and to be paid and delivered only to them upon reaching the age of 21.

On December 17, 1985, the Register of Deeds of Southern Leyte issued Original Certificate of Title No. 17035 over the purchased land in the names of respondents-spouses.

On December 30, 1985, Saturnina and her four (4) children executed an affidavit to the effect that petitioner Nelson would only receive the amount of P176.34 from respondents-spouses when he reaches the age of 21 considering that Saturnina paid Dr. Corrompido P966.66 for the obligation of petitioner Nelson’s late father Alberto, i.e., P666.66 for his share in the redemption of the sale with pacto de retro as well as his "vale" ofP300.00.

On July 24, 1986, 24-year old petitioner Rito Cabales acknowledged receipt of the sum of P1,143.00 from respondent Jesus Feliano, representing the former’s share in the proceeds of the sale of subject property.

In 1988, Saturnina died. Petitioner Nelson, then residing in Manila, went back to his father’s hometown in Southern Leyte. That same year, he learned from his uncle, petitioner Rito, of the sale of subject property. In 1993, he signified his intention to redeem the subject land during a barangay conciliation process that he initiated.

On January 12, 1995, contending that they could not have sold their respective shares in subject property when they were minors, petitioners filed before the Regional Trial Court of Maasin, Southern Leyte, a complaint for redemption of the subject land plus damages.

In their answer, respondents-spouses maintained that petitioners were estopped from claiming any right over subject property considering that (1) petitioner Rito had already received the amount corresponding to his share of the proceeds of the sale of subject property, and (2) that petitioner Nelson failed to consign to the court the total amount of the redemption price necessary for legal redemption. They prayed for the dismissal of the case on the grounds of laches and prescription.

No amicable settlement was reached at pre-trial. Trial ensued and on August 11, 2000, the trial court ruled against petitioners. It held that (1) Alberto or, by his death, any of his heirs including petitioner Nelson lost their right to subject land when not one of them repurchased it from Dr. Corrompido; (2) Saturnina was effectively subrogated to the rights and interests of Alberto when she paid for Alberto’s share as well as his obligation to Dr. Corrompido; and (3) petitioner Rito had no more right to redeem his share to subject property as the sale by Saturnina, his legal guardian pursuant to Section 7, Rule 93 of the Rules of Court, was perfectly valid; and it was shown that he received his share of the proceeds of the sale on July 24, 1986, when he was 24 years old.

On appeal, the Court of Appeals modified the decision of the trial court. It held that the sale by Saturnina of petitioner Rito’s undivided share to the property was unenforceable for lack of authority or legal representation but that the contract was effectively ratified by petitioner Rito’s receipt of the proceeds on July 24, 1986. The appellate court also ruled that petitioner Nelson is co-owner to the extent of one-seventh (1/7) of subject property as Saturnina was not subrogated to Alberto’s rights when she repurchased his share to the property. It further directed petitioner Nelson to pay the estate of the late Saturnina Cabales the amount of P966.66, representing the amount which the latter paid for the obligation of petitioner Nelson’s late father Alberto. Finally, however, it denied petitioner Nelson’s claim for redemption for his failure to tender or consign in court the redemption money within the period prescribed by law.

In this petition for review on certiorari, petitioners contend that the Court of Appeals erred in (1) recognizing petitioner Nelson Cabales as co-owner of subject land but denied him the right of legal redemption, and (2) not recognizing petitioner Rito Cabales as co-owner of subject land with similar right of legal redemption.

First, we shall delineate the rights of petitioners to subject land.

When Rufino Cabales died intestate, his wife Saturnina and his six (6) children, Bonifacio, Albino, Francisco, Leonora, Alberto and petitioner Rito, survived and succeeded him. Article 996 of the New Civil Code provides that "[i]f a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children." Verily, the seven (7) heirs inherited equally on subject property. Petitioner Rito and Alberto, petitioner Nelson’s father, inherited in their own rights and with equal shares as the others.

But before partition of subject land was effected, Alberto died. By operation of law, his rights and obligations to one-seventh of subject land were transferred to his legal heirs – his wife and his son petitioner Nelson.

We shall now discuss the effects of the two (2) sales of subject land to the rights of the parties.

The first sale with pacto de retro to Dr. Corrompido by the brothers and co-owners Bonifacio, Albino and Alberto was valid but only as to their pro-indiviso shares to the land. When Alberto died prior to repurchasing his share, his rights and obligations were transferred to and assumed by his heirs, namely his wife and his son, petitioner Nelson. But the records show that it was Saturnina, Alberto’s mother, and not his heirs, who repurchased for him. As correctly ruled by the Court of Appeals, Saturnina was not subrogated to Alberto’s or his heirs’ rights to the property when she repurchased the share.

In Paulmitan v. Court of Appeals,3 we held that a co-owner who redeemed the property in its entirety did not make her the owner of all of it. The property remained in a condition of co-ownership as the redemption did not provide for a mode of terminating a co-ownership.4 But the one who redeemed had the right to be reimbursed for the redemption price and until reimbursed, holds a lien upon the subject property for the amount due.5Necessarily, when Saturnina redeemed for Alberto’s heirs who had then acquired his pro-indiviso share in subject property, it did not vest in her ownership over the pro-indiviso share she redeemed. But she had the right to be reimbursed for the redemption price and held a lien upon the property for the amount due until reimbursement. The result is that the heirs of Alberto, i.e., his wife and his son petitioner Nelson, retained ownership over their pro-indiviso share.

Upon redemption from Dr. Corrompido, the subject property was resold to respondents-spouses by the co-owners. Petitioners Rito and Nelson were then minors and as indicated in the Deed of Sale, their shares in the proceeds were held in trust by respondents-spouses to be paid and delivered to them upon reaching the age of majority.

As to petitioner Rito, the contract of sale was unenforceable as correctly held by the Court of Appeals. Articles 320 and 326 of the New Civil Code6 state that:

Art. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance.

Art. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be considered a guardian of the child’s property, subject to the duties and obligations of guardians under the Rules of Court.

In other words, the father, or, in his absence, the mother, is considered legal administrator of the property pertaining to the child under his or her parental authority without need of giving a bond in case the amount of the property of the child does not exceed two thousand pesos.7 Corollary to this, Rule 93, Section 7 of the Revised Rules of Court of 1964, applicable to this case, automatically designates the parent as legal guardian of the child without need of any judicial appointment in case the latter’s property does not exceed two thousand pesos,8 thus:

Sec. 7. Parents as guardians. – When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian x x x x9

Saturnina was clearly petitioner Rito’s legal guardian without necessity of court appointment considering that the amount of his property or one-seventh of subject property was P1,143.00, which is less than two thousand pesos. However, Rule 96, Sec. 110 provides that:

Section 1. To what guardianship shall extend. – A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

Indeed, the legal guardian only has the plenary power of administration of the minor’s property. It does not include the power of alienation which needs judicial authority.11 Thus, when Saturnina, as legal guardian of petitioner Rito, sold the latter’s pro-indiviso share in subject land, she did not have the legal authority to do so.

Article 1403 of the New Civil Code provides, thus:

Art. 1403. The following contracts are unenforceable, unless they are ratified:

(1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers;

x x x x

Accordingly, the contract of sale as to the pro-indiviso share of petitioner Rito was unenforceable. However, when he acknowledged receipt of the proceeds of the sale on July 24, 1986, petitioner Rito effectively ratified it. This act of ratification rendered the sale valid and binding as to him.

With respect to petitioner Nelson, on the other hand, the contract of sale was void. He was a minor at the time of the sale. Saturnina or any and all the other co-owners were not his legal guardians with judicial authority to alienate or encumber his property. It was his mother who was his legal guardian and, if duly authorized by the courts, could validly sell his undivided share to the property. She did not. Necessarily, when Saturnina and the others sold the subject property in its entirety to respondents-spouses, they only sold and transferred title to their pro-indiviso shares and not that part which pertained to petitioner Nelson and his mother. Consequently, petitioner Nelson and his mother retained ownership over their undivided share of subject property.12

But may petitioners redeem the subject land from respondents-spouses? Articles 1088 and 1623 of the New Civil Code are pertinent:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor.

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall

not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of adjoining owners.

Clearly, legal redemption may only be exercised by the co-owner or co-owners who did not part with his or their pro-indiviso share in the property held in common. As demonstrated, the sale as to the undivided share of petitioner Rito became valid and binding upon his ratification on July 24, 1986. As a result, he lost his right to redeem subject property.

However, as likewise established, the sale as to the undivided share of petitioner Nelson and his mother was not valid such that they were not divested of their ownership thereto. Necessarily, they may redeem the subject property from respondents-spouses. But they must do so within thirty days from notice in writing of the sale by their co-owners vendors. In reckoning this period, we held in Alonzo v. Intermediate Appellate Court,13 thus:

x x x we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. x x x x

x x x x While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the lawmaker’s will.

In requiring written notice, Article 1088 (and Article 1623 for that matter)14 seeks to ensure that the redemptioner is properly notified of the sale and to indicate the date of such notice as the starting time of the 30-day period of redemption. Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise date it is supposed to begin, to obviate the problem of alleged delays, sometimes consisting of only a day or two.1awph!1

In the instant case, the right of redemption was invoked not days but years after the sale was made in 1978. We are not unmindful of the fact that petitioner Nelson was a minor when the sale was perfected. Nevertheless, the records show that in 1988, petitioner Nelson, then of majority age, was informed of the sale of subject property. Moreover, it was noted by the appellate court that petitioner Nelson was likewise informed thereof in 1993 and he signified his intention to redeem subject property during a barangay conciliation process. But he only filed the complaint for legal redemption and damages on January 12, 1995, certainly more than thirty days from learning about the sale.

In the face of the established facts, petitioner Nelson cannot feign ignorance of the sale of subject property in 1978. To require strict proof of written notice of the sale would be to countenance an obvious false claim of lack of knowledge thereof, thus commending the letter of the law over its purpose, i.e., the notification of redemptioners.

The Court is satisfied that there was sufficient notice of the sale to petitioner Nelson. The thirty-day redemption period commenced in 1993, after petitioner Nelson sought the barangay conciliation process to redeem his property. By January 12, 1995, when petitioner Nelson filed a complaint for legal redemption and damages, it is clear that the thirty-day period had already expired.

As in Alonzo, the Court, after due consideration of the facts of the instant case, hereby interprets the law in a way that will render justice.15

Petitioner Nelson, as correctly held by the Court of Appeals, can no longer redeem subject property. But he and his mother remain co-owners thereof with respondents-spouses. Accordingly, title to subject property must include them.

IN VIEW WHEREOF, the petition is DENIED. The assailed decision and resolution of the Court of Appeals of October 27, 2003 and February 23, 2004 are AFFIRMED WITH MODIFICATION. The Register of Deeds of Southern Leyte is ORDERED to cancel Original Certificate of Title No. 17035 and to issue in lieu thereof a new certificate of title in the name of respondents-spouses Jesus and Anunciacion Feliano for the 6/7 portion, and petitioner Nelson Cabales and his mother for the remaining 1/7 portion, pro indiviso.

SO ORDERED.

REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT

Manila

FIRST DIVISION

A.M. No. RTJ-99-1447 September 27, 2000

Spouses LEONARDO DARACAN and MA. TERESA DARACAN, petitioners, vs. JUDGE ELI G.C. NATIVIDAD, RTC, Branch 48, San Fernando, Pampanga, respondent.

R E S O L U T I O N

YNARES-SANTIAGO, J.:

On December 18, 1998, the Office of the Chief Justice received from the Spouses Ma. Teresa Daracan and Leonardo Daracan a letter-complaint1 against Judge Eli G.C. Natividad, Presiding Judge of the Regional Trial Court of San Fernando, Pampanga, Branch 48 for gross ignorance of the law, oppression, gross partiality and knowingly rendering an unjust order for issuance of a writ of preliminary attachment2 relative to Special Proceedings No. 4183 entitled "In the Matter of the Petition for Guardianship of the Spouses Lorenzo G. Francisco and Lorenza D. Francisco."3

The complaint was indorsed to the Office of the Court Administrator (OCA) which required respondent to comment within ten (10) days from receipt.4

In compliance with the OCA directive, respondent filed his comment on May 28, 19985 praying for the dismissal of the complaint. Respondent Judge alleges that the writ is the subject of a petition for certiorari filed in the Court of Appeals which was docketed as CA-G.R. SP No. 46169. Respondent Judge also claims that contrary to the allegations of complainants-spouses, they were made involuntary parties of the proceedings prior to the issuance of the writ of attachment by the filing of the Motion to Cite Spouses Daracan for Examination dated November 21, 1997.6

The records disclose that in a decision dated March 4, 19987 in CA-G.R. SP No. 46169, the Court of Appeals held that the lower court clearly exceeded its jurisdiction in issuing the writ of preliminary attachment since the case pending with the respondent court was for guardianship and not an action falling under any of the grounds enumerated in Section 1, Rule 57 of the 1997 Rules of Court.8

A petition for review was subsequently filed with the Court docketed as G.R. No. 134027 entitled "Ma. Elissa Velez, et al. v. CA, et al." However, the same was thereafter dismissed and the decision therein became final and executory on January 13, 1999.

In its evaluation and report dated April 12, 19999 the OCA recommended that -

1.] the case be docketed as a regular administrative case;

2.] the parties be required to manifest if they are willing to submit the case for decision on the basis of the pleadings already filed; and thereafter, should they express their willingness that the same be done;

3.] respondent Judge Eli C. Natividad be declared guilty of Gross Ignorance of the Law and that he be fined in the amount of P3,000.00; and

4.] respondent be enjoined to exercise greater care and diligence in the performance of his duties as a judge with a warning that a repetition of a similar offense will be dealt with more severely.

In a Resolution dated June 23, 1999,10 the Court resolved to: a] docket the case as a regular administrative matter; and b] require the parties to manifest if they are willing to submit the case for decision on the basis of the pleadings already filed within ten (10) days from notice.

In a Manifestation dated October 12, 1999,11 respondent Judge manifested his willingness to submit the case for decision on the basis of the pleadings already filed. However, earlier in a Resolution dated October 6, 1999,12 the Court considered its Resolution dated June 23, 1999 served upon complainants when the same was returned unserved by the postmaster with a notation "moved."

In a Resolution dated November 29, 1999,13 the Court noted respondent’s manifestation of October 12, 1999 and referred the case to Court of Appeals Associate Justice Salvador J. Valdez, Jr. for investigation, report and recommendation within ninety (90) days from notice.

Thereafter, Justice Valdez submitted a Report and Recommendation dated April 12, 2000 summing the facts thus:

The spouses Ma. Teresa and Leonardo Daracan charged Judge Eli G.C. Natividad, Presiding Judge of the Regional Trial Court, Branch 48, San Fernando, Pampanga, with gross ignorance of the law, oppression, gross partiality and knowingly rendering [an] unjust order, all for issuing a writ of preliminary attachment in Sp. Proc. No. 4183, entitled "In the Matter of the Petition for Guardianship of the Spouses Lorenzo G. Francisco and Lorenza D. Francisco."

The complainants alleged that on November 21, 1997, upon motion of the court-appointed guardian, Lina Francisco-Velez, the respondent Judge issued the subject writ of preliminary attachment against their properties even as they are not parties to the guardianship proceedings. In pursuance of the writ, an order to break open was issued and, thus, Deputy Sheriff Edgardo Zabat of RTC, San Fernando, Pampanga, forced open their department store at midnight on November 26, 1997 and once inside, ransacked, looted and appropriated the merchandise found therein with a value of not less than P6 million without making an

inventory. The complainants furthermore averred that "rumors had it that the issuance of the writ of attachment was xxx for a consideration."14

Subsequently, on March 4, 1998, the Court of Appeals in CA-G.R. SP No. 46169, entitled: "Spouses Leonardo Daracan and Ma. Teresa Daracan, Petitioners vs. Hon. Ely (sic) G.C. Natividad, etc., et al., Respondents"declared null and void the writ of preliminary attachment on the finding that the respondent judge "clearly exceeded (his) jurisdiction" in issuing it.15 A petition for review on certiorari was thereafter filed with the Supreme Court but the same was dismissed.16

Explaining his side in the instant administrative case, the respondent judge pleaded17 that he thought all along that under Section 6, Rule 96 of the Revised Rules of Court, he could issue the questioned writ to protect and preserve the rights of the wards in the light of the sworn assertion of the guardian, Lina Francisco-Velez, that the complainants were indebted to her wards, who were already senile, to the tune of P5 million; that even as the complainants had priorly been cited by the guardian in a motion to require them to appear for examination as debtors of her wards and against whom she (guardian) had initiated the filing of six (6) informations for violation of B.P. Blg. 22, they (complainants) did not appear to oppose the issuance of the writ of preliminary attachment; that the department store of the complainants that the sheriff opened, because the former had abandoned the same,18 was located at the Franda Mall, a building owned by the wards; and that the opening of the store and the attachment of the items found therein, which were all inventoried, contrary to the claim of the complainants, were done in the presence of a senior police inspector and a kagawad of the barangay.19 Respondent judge vehemently denied having committed any fraud, dishonesty or corruption. He put forward the submission that, if at all, he merely committed an error of judgment and set forth the prayer that:

WHEREFORE, it is respectively prayed, and considering that the Respondent Judge will be retiring on November 28, 1999 and who has reached the age of walking under the shadow of death and has no other means in life to support his remaining years of his life except the benefits he may be given by the government for his duties or services, and for humanitarian reasons, the case be dismissed."20

At the ensuing investigation, the complainants never appeared despite substituted service21 and service by mail22 on them of the notices of investigation. Only the respondent judge appeared and after his oral motion to dismiss23 had been denied,24 he adduced evidence as heretofore recapped.

Justice Valdez differed with the findings of the OCA that respondent judge be fined and warned that similar transgressions in the future would be dealt with more severely and instead recommended that the charges against him be dismissed for lack of merit, reasoning thus:

Re: The charges for gross ignorance of the law and/or knowingly rendering unjust order or judgment.

Section 6, Rule 96 of the 1964 Revised Rules of Court under which the respondent judge issued the questioned writ of preliminary injunction provides:

Sec. 6. Proceeding when persons suspected of embezzling or concealing property of ward. - Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir or otherwise, that anyone is suspected of having embezzled, concealed or conveyed away any money, goods or interest or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to appear for examination, touching such money, goods, interest or instrument and make such orders as will secure the estate against such embezzlement, concealment or conveyance.

In the leading case of Cui vs. Piccio,25 the foregoing rule was construed as follows:

x x x its purpose is merely to elicit information or secure evidence from the person suspected of having embezzled, concealed or conveyed away any personal property of the ward. In such proceeding the court has

no authority to determine the right of property or to order delivery thereof. If after the examination the court finds sufficient evidence showing ownership on the part of the ward, it is the duty of the guardian to bring the proper action.

x x x x x x x x x26

x x x the jurisdiction of the court in guardianship proceedings, ordinarily, is to cite persons suspected of having embezzled, concealed or conveyed property belonging to the ward for the purpose of obtaining information which may be used in an action later to be instituted by the guardian to protect the right of the ward; and that only in extreme cases, where property clearly belongs to the ward or where his title thereto has already been judicially decided, may the court direct its delivery to the guardian.27

On the other hand, the respondent judge justified the disputed writ of preliminary injunction he issued in this wise:

The legal guardian filed a verified Motion To Cite Spouses Leonardo and Teresa Daracan To Appear For Examination and Manifestation With Supplemental Motion praying that upon filing of these pleadings a writ of preliminary attachment be issued.

It appears from the verified motion that the spouses Leonardo and Maria Teresa Daracan is (sic) indebted to the wards amounting to Five Million Pesos (P5,000,000.00).

That when the said spouses was (sic) was (sic) charged by the ward[s] through the legal guardian of Violation of B.P. 22, said spouses started concealing and taking away all the assets real and personal in order to prejudice the wards and considering that the obligation or indebtedness was incurred through fraud, they have been concealing and disposing the property in order to avoid and frustrate the intention of the ward[s] to attach preliminarily their petition.

It was also alleged that Spouses Daracan are leasing a place located at the Franda Mall Building owned by the Franda Corporation of which the wards are the majority stockholders. However, they have been deliberately and by stealth removing all the wares and goods in the said Samut Sari Department Store in order to prejudice the said wards, their creditors.

WHEREFORE, a writ of preliminary attachment is hereby issued in this case in order to stop the further concealment or disposal of the assets of [the] Spouses Daracan in order to prejudice the wards herein as their creditors upon [the] filing of a bond in the amount of three hundred thousand pesos (P300,000.00), let a writ of preliminary attachment be issued in this case directing and ordering the Deputy Sheriff of this Court to seize all the personal properties of the Spouses Daracan and/or real estate within the Province of Pampanga, for safekeeping not to exceed FIVE MILLION PESOS (P5,000,000.00) until further orders from this Court.

SO ORDERED.28

It is, therefore, beyond cavil that, as found by the Court of Appeals, the respondent judge "clearly exceeded [his] jurisdiction" in issuing the writ. Inarguably, a guardianship court exercises but a limited jurisdiction that cannot extend to the determination of questions of ownership. Apart from that, the B.P. Blg. 22 cases filed by the wards against the herein complainants can not be utilized by the respondent judge as basis for the issuance of the writ simply because the cases are not before the guardianship court over which he was then presiding. Similarly, the fact that herein complainants were deliberately and by stealth removing all their wares and goods from their store to the prejudice of the wards to whom they (complainants) were indebted to the tune of P5 million is entirely foreign to the guardianship proceedings; and the guardian’s remedy was to institute a collection suit against the complainants in the proper court and therein apply for a writ of attachment.

Be that as it may, the mind feels ill at ease to conclude that respondent judge is guilty of gross ignorance of the law or of knowingly rendering an unjust order. For it has been held that:

x x x if every error of the judge should be punished, then perhaps no judge, however good, competent, honest and dedicated he may be, can ever hope to retire from the judiciary without a blemished record and a tarnished image.29

In Dela Cruz v. Concepcion,30 later reiterated in Wingarts v. Judge Servillano M. Mejia,31 this Court had the occasion to expound on the nature and the wisdom behind the twin charges of gross ignorance of the law and/or knowingly rendering an unjust judgment. There we declared thus:

To constitute gross ignorance of the law, the subject decision, order or actuation of the judge in the performance of his official duties must not only be contrary to existing law and jurisprudence but, most importantly, he must be moved by bad faith, fraud, dishonesty or corruption. In the case before us, the administrative complaint does not even allege that the erroneous decision of respondent was thus motivated.

Knowingly rendering an unjust judgment is both a criminal and an administrative charge. As a crime, it is punished under Art. 204 of the Revised Penal Code the elements of which are: (a) the offender is a judge; (b) he renders a judgment in a case submitted to him for decision; (c) the judgment is unjust; and (d) the judge knows that his judgment is unjust. The gist of the offense therefore is that an unjust judgment be rendered maliciously or in bad faith, that is, knowing it to be unjust.

An unjust judgment is one which is contrary to law or is not supported by evidence or both. The source of an unjust judgment may be error or ill-will. There is no liability at all for a mere error. It is well-settled that a judicial officer, when required to exercise his judgment or discretion, is not liable criminally for any error which he commits, provided he acts in good faith. Bad faith is therefore the ground of liability. If in rendering judgment the judge fully knew that the same was unjust in the sense aforesaid, then he acted maliciously and must have been actuated and prevailed upon by hatred, envy, revenge, greed or some other similar motive. As interpreted by Spanish courts, the term "knowingly" means sure knowledge, conscious and deliberate intention to do an injustice. Mere error therefore in the interpretation or application of the law does not constitute the crime.

The nature of the administrative charge of knowingly rendering an unjust judgment is the same as the criminal charge. Thus, in this particular administrative charge, it must be established that respondent Judge rendered a judgment or decision not supported by law and/or evidence and that he must be actuated by hatred, envy, revenge, greed or some other similar motive.32

True it is that subsequently, the far stricter norm of allowing only permissible margins of error has been adopted, thus:

We need not belabor jurisprudence to accommodate respondent’s argument which in effect posits that not every judicial error bespeaks ignorance of the law and that, if committed in good faith, does not warrant administrative sanction. So we have ruled and so we have acted, but only in cases within the parameters of tolerable judgment. Where, however, the issues are so simple and the facts so evident as to be beyond permissible margins of error, to still err thereon amounts to ignorance of the law which, hopefully, was not merely feigned to subserve an unworthy purpose.33

Only recently, however, the doctrine of bad faith as the ground for accountability has again come to fore. Mr. Justice Leonardo A. Quisumbing wrote:

x x x To establish her guilt, it is indispensable that the checks she issued for which she was subsequently charged, be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict the complainant on the basis of her letter alone.

Nevertheless, despite this incorrect interpretation of a rule of evidence, we do not find the same as sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering an unjust decision. Rather, it is at most an error in judgment, for which, as a general rule, he cannot be held administratively liable. In this regard, we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence:

We have heretofore ruled that a judge may be held administratively accountable for every erroneous order or decision he renders. To unjustifiably hold otherwise, assuming that he has erred, would be nothing short of harassment and would make his position doubly unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in judgment. The error must be gross or patent, malicious, deliberate or in evident bad faith. It is only in this latter instance, when the judge acts fraudulently or with gross ignorance, that administrative sanctions are called for as an imperative duty of this Court.

As a matter of public policy then, the acts of a judge in his official capacity are not subject to disciplinary action, even though such acts are erroneous. Good faith and absence of malice, corrupt motives or improper considerations are sufficient defenses in which a judge charged with ignorance of the law can find refuge.

And in a later case, Mr. Justice Quisumbing was even more trenchant when he said:

The other charges, namely ignorance of the law and issuing an unjust judgment, deserve consideration since the direct contempt order of respondent judge, under the attending circumstances it was issued, appears to be clearly erroneous. The supposedly contemptuous language used in a pleading was not submitted to respondent but filed in another court presided by another judge stationed in Cebu literally miles away from where respondent holds court in Leyte. As this Court ruled in Ang vs. Castro:

Use of disrespectful or contemptuous language against a particular judge in pleadings presented in another court or proceeding is indirect, not direct, contempt as it is not tantamount to a misbehavior in the presence of or so near a court or judge as to interrupt the administration of justice.

However, administrative liability for ignorance of the law and/or knowingly rendering an unjust judgment does not immediately arise from the bare fact of a judge issuing a decision/resolution/order later adjudged to be erroneous. Otherwise, perhaps no judge, however competent, honest or dedicated he may be, can ever hope to retire from the judiciary with an unblemished record.

For liability to attach for ignorance of the law, the assailed order, decision or actuation of the judge in the performance of official duties must not only be found erroneous but, most importantly, it must also be established that he was moved by bad faith, dishonesty, hatred, or some other like motive. Similarly, a judge will be held administratively liable for rendering an unjust judgment - one which is contrary to law or jurisprudence or is not supported by evidence - when he acts in bad faith, malice, revenge or some other similar motive. In fine, bad faith is the ground for liability in either or both offenses.

Conversely, a charge for either ignorance of the law or rendering an unjust judgment will not prosper against a judge acting in good faith. Absent the element of bad faith, an erroneous judgment cannot be the basis of a charge for any said offenses, mere error of judgment not being a ground for disciplinary proceedings.34

In the case on hand, there is not a scintilla of evidence, not even any remote indication, that the respondent judge, in issuing his erroneous writ of preliminary attachment, was impelled by ill-will, malice, revenge, personal animosity, impulse to do an injustice, greed, corrupt consideration or any other similar motive. On the contrary, the testimony of the respondent stands out unrebutted because of the failure of the complainants to appear despite due notice. He declared that he does not know and had never seen the complainants before.35 He was prompted to issue the assailed writ of attachment only -

Because these spouses Daracan were renting a big store in the Franda Mall owned and operated by the ward[s] who are now senile. That is the reason why I granted the petition for judicial guardianship. And when they learned that the wards who are the spouses are no longer handling the business in the mall, and there’s already a legal guardian, they took away the most valuable items of their big store dealing in dry goods and the store was thenSamu’t Sari and they left without paying any rentals, without paying their obligation amounting to several millions of pesos padlocked the store and they only left old stocks which are almost valueless and, in fact, the items seized by the sheriff is (sic) intact in the office of the sheriff and despite the notice issued by the sheriff for them to retrieve the same in view of the fact that the preliminary writ of attachment was dissolved, they failed to do so.36

and that -

x x x I have been very careful in dealing with this matter as I was on the verge of retiring at that time. In fact, my last working day fell on November 26, 1999. And on that very day when I attended the last day of my public service, that was the time that I suffered the heart attack and I was hospitalized at the Heart Center for two months and until now, I am still under observation and medication and convalescing from my complicated disease, because my disease were pulmonary disease (sic). I suffer pleurisy of the lungs. However, my kidney again functioned so the dialysis stopped and the only disease now that I am suffering is the lung disease and the pulmonary disease. That is all, Your Honor.37

The respondent judge furthermore explained that he was of the impression that the portion of Section 6, Rule 96 of the Revised Rules of Court reading "make such orders as will secure the estate against such embezzlement, concealment or conveyance" authorized him to issue the writ of attachment to preserve the status quo and the real rights of the wards.38

Under the obtaining circumstances, it is apropos to quote Justice Quisumbing once more: "It ought to be remembered that bad faith is not presumed and he who alleges the same has the onus of proving it. In this regard, the complainants have not discharged that burden of proof x x x."39

Re: The charges of oppression and gross partiality.

Similarly, there is no factual support to the charges of oppression and partiality. And again, this is for the reason that the complainants, instead of presenting evidence, had played truant from the investigation.

The Court finds the recommendation of Justice Valdez well-taken.

Anent the charges of gross ignorance of the law and knowingly rendering an unjust judgment or order, the Court in Canson v. Garchitorena40 restated the oft-quoted dictum that: "[A]s a matter of public policy, in the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are generally not subject to disciplinary action, even though such acts are erroneous."41 In the recent case of Santos v. Judge Orlino,42 we held:

The fundamental propositions governing responsibility for judicial error were more recently summarized in In Re: Joaquin T. Borromeo.43 There the Court stressed, inter alia, that given the nature of judicial function and the power vested in the Supreme Court and the lower courts established by law, administrative or criminal complaints are neither alternative nor cumulative to judicial remedies where such are available, and must wait on the result thereof. Existing doctrine is that judges are not liable for what they do in the exercise of their judicial functions when acting within their legal powers and jurisdiction.44 Certain it is that a judge may not be held administratively accountable for every erroneous order or decision he renders.45 To hold otherwise would render judicial office untenable for no one called upon to try the fact or interpret the law in the process of administering justice can be infallible in his judgment.46 The error must be gross or patent, deliberate and malicious or incurred with evident bad faith.47

Stated succinctly, for administrative liability to attach it must be established that respondent was moved by bad faith, dishonesty, hatred or some other motive48 and as defined -

Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of a sworn duty through some motive or intent or ill-will; it partakes of the nature of fraud.49 It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill-will for ulterior purposes.50 Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.51

The record is devoid of any showing that respondent judge was moved by ill-will or bad faith in issuing the writ of preliminary attachment. Complainants have not, in fact, adduced any proof to show that bad faith attended the issuance of the assailed order. To reiterate, bad faith is not presumed and he who alleges the same has the onus of proving it.52 Viewed vis-à-vis the fact that complainants "played truant to the investigation" instead of presenting evidence to substantiate their charges, the complaint becomes reduced into a bare indictment or mere speculation.

Concededly, administrative proceedings are not strictly bound by formal rules on evidence.1âwphi1 It needs be pointed out, however, that the liberality of procedure in administrative actions is still subject to limitations imposed by the fundamental requirement of due process. Indeed, "[T]he Rules even in an administrative case, demand that, if the respondent judge should be disciplined for grave misconduct or any graver offense, the evidence against him should be competent and should be derived from direct knowledge.53 The judiciary to which the respondent belongs demands no less. Before any of its members could be faulted, it should only be after the presentation of competent evidence, especially since the charge is penal in character."54

To hold a judge liable for knowingly rendering an unjust judgment or order, it must be shown beyond reasonable doubt that the judgment or order is unjust and that it was made with a conscious and deliberate intent to do an injustice.55 In this regard, it is useful to reiterate the ruling in Raquiza v. Castaneda, Jr.56 which stressed that -

The ground for the removal of a judicial officer should be established beyond reasonable doubt. Such is the rule where the charges on which the removal is sought is misconduct in office, willful neglect, corruption, incompetency, etc. the general rule in regard to admissibility in evidence in criminal trials apply.

In short, this Court can not give credence to charges based on mere suspicion or speculation.57 For the foregoing considerations, the allegations of oppression and gross partiality must likewise fall in the absence of factual support to substantiate the charges.

WHEREFORE, based on the foregoing, the complaint filed by the Spouses Leonardo Daracan and Ma. Teresa Daracan against Judge Eli G.C. Natividad, Regional Trial Court, Branch 48, San Fernando, Pampanga, is DISMISSED for lack of merit.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 164948 June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent.

D E C I S I O N

CALLEJO, SR., J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein.

The Antecedents

On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos, petitioner’s brother, and Amelia Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent9 to the adoption of the minors. Petitioner’s brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioner’s custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:

WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor children’s name follow the family name of petitioner.

Petitioner prays for such other reliefs, just and equitable under the premises.10

On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but deputized the City Prosecutor of Tarlac to appear in its behalf.13Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.14

The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.16

On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation:

In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons:

1. Minors’ surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached.

2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent.

3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being.

In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.17

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children.

The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the well-being of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian.

The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.18

However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption.

On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads:

WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children relationship has long been established between the

children and the adoptive parents. Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin."

Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the above-mentioned minors.

SO ORDERED.19

The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments:

I

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES’ BIOLOGICAL MOTHER.

II

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONER’S CHILDREN AS REQUIRED BY LAW.

III

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONER’S FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the children’s natural mother. Moreover, the

affidavit of consent of the petitioner’s children could not also be admitted in evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of

the CA decision reads:

WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE.

SO ORDERED.23

Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.25

Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004, assigning the following errors:

1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE.

2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.27

The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-adopter’s children sufficiently complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees.

The Court’s Ruling

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.29

However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Court’s position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.31

Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides:

Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latter’s souse, if any;

(e) The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32

Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his

parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption.

We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition.

Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelia’s husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the children’s financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner.

Petitioner’s contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian.

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.34

Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.35To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.36

In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioner’s testimony on that matter follows:

Q Where is the mother of these three children now?

A She left for Italy on November 20, 1990, sir.

Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family?

A None, sir.

Q How about with her children?

A None, sir.

Q Do you know what place in Italy did she reside?

A I do not know, sir.

Q Did you receive any news about Amelia Ramos?

A What I know, sir, was that she was already married with another man.

Q From whom did you learn that?

A From others who came from Italy, sir.

Q Did you come to know whether she has children by her second marriage?

A Yes, sir, she got two kids.37

Elaine, the eldest of the minors, testified, thus:

Q Where is your mother now?

A In Italy, sir.

Q When did your mother left for Italy?

A After my father died, sir.

Q How old were you when your mother left for Italy in 1990?

A Two years old, sir.

Q At the time when your mother left for Italy, did your mother communicate with you?

A No, sir.38

However, the Home Study Report of the DSWD Social Worker also stated the following:

IV. Background of the Case:

x x x x

Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.39

x x x x

V. Background Information about the Minors Being Sought for Adoption:

x x x x

As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.40

x x x x

In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husband’s relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper.

When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000.

While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it. He is providing his legitimate family regular support.

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.41

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was merely impelled to leave the country by financial constraints. Yet, even

while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for

serious personal problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide.

Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.43 Again, it is the best interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.44

Petitioner failed to offer in evidence Pagbilao’s Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioner’s children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,46 which states:

Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements:

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, chargé de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine.

As the alleged written consent of petitioner’s legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.47

Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence.

In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family.

Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family.

According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioner’s main intention in adopting the children is to bring the latter to Guam,

USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioner’s allegation that her siblings and her children are financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue.

While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors.

WHEREFORE, premises considered, the petition is hereby DENIED.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila

FIRST DIVISION

G.R. Nos. 168992-93 May 21, 2009

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM,

MONINA P. LIM, Petitioner.

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IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM,

MONINA P. LIM, Petitioner.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision1dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.

The Facts

The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that they were the children’s parents. The children2 were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977.3 Michael was 11 days old when Ayuban brought him to petitioner’s clinic. His date of birth is 1 August 1983.4

The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname "Lim" in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the amnesty5 given under Republic Act No. 85526 (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent.7Michael also gave his consent to his adoption as shown in his Affidavit of Consent.8 Petitioner’s husband Olario likewise executed an Affidavit of Consent9 for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural parents were unknown.10 The DSWD issued a similar Certification for Michael.11

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioner’s argument that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities.

Hence, the present petition.

Issue

Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt.

The Court’s Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim "dura lex sed lex" is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial court’s decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or

(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)

The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.12

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopter’s country as the latter’s adopted child. None of these qualifications were shown and proved during the trial.

These requirements on residency and certification of the alien’s qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. This is untenable.

Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.13 The father and the mother shall jointly exercise parental authority over the persons of their common children.14 Even the remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.15

It is true that when the child reaches the age of emancipation — that is, when he attains the age of majority or 18 years of age16 — emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life.17 However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus:

ARTICLE V EFFECTS OF ADOPTION

SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).

SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family.

SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other.18 Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights19 of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled20 such as support21 and successional rights.22

We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.23 But, as we have ruled inRepublic v. Vergara:24

We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial court’s decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses’ petition for adoption. (Emphasis supplied)1avvphi1.zw+

Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree

for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 169482 January 29, 2008

IN THE MATTER OF THE PETITION OF HABEAS CORPUS OF EUFEMIA E. RODRIGUEZ, filed by EDGARDO E. VELUZ, petitioner, vs. LUISA R. VILLANUEVA and TERESITA R. PABELLO, respondents.

D E C I S I O N

CORONA, J.:

This is a petition for review1 of the resolutions2 dated February 2, 2005 and September 2, 2005 of the Court of Appeals3 in CA-G.R. SP No. 88180 denying the petition for habeas corpus of Eufemia E. Rodriguez, filed by petitioner Edgardo Veluz, as well as his motion for reconsideration, respectively.

Eufemia E. Rodriguez was a 94-year old widow, allegedly suffering from a poor state of mental health and deteriorating cognitive abilities.4 She was living with petitioner, her nephew, since 2000. He acted as her guardian.

In the morning of January 11, 2005, respondents Luisa R. Villanueva and Teresita R. Pabello took Eufemia from petitioner Veluz’ house. He made repeated demands for the return of Eufemia but these proved futile. Claiming that respondents were restraining Eufemia of her liberty, he filed a petition for habeas corpus5 in the Court of Appeals on January 13, 2005.

The Court of Appeals ruled that petitioner failed to present any convincing proof that respondents (the legally adopted children of Eufemia) were unlawfully restraining their mother of her liberty. He also failed to establish his legal right to the custody of Eufemia as he was not her legal guardian. Thus, in a resolution dated February 2, 2005,6 the Court of Appeals denied his petition.

Petitioner moved for reconsideration but it was also denied.7 Hence, this petition.

Petitioner claims that, in determining whether or not a writ of habeas corpus should issue, a court should limit itself to determining whether or not a person is unlawfully being deprived of liberty. There is no need to consider legal custody or custodial rights. The writ of habeas corpus is available not only if the rightful custody of a person is being withheld from the person entitled thereto but also if the person who disappears or is illegally being detained is of legal age and is not under guardianship. Thus, a writ of habeas corpus can cover persons who are not under the legal custody of another. According to petitioner, as long as it is alleged

that a person is being illegally deprived of liberty, the writ of habeas corpus may issue so that his physical body may be brought before the court that will determine whether or not there is in fact an unlawful deprivation of liberty.

In their comment, respondents state that they are the legally adopted daughters of Eufemia and her deceased spouse, Maximo Rodriguez. Prior to their adoption, respondent Luisa was Eufemia’s half-sister8 while respondent Teresita was Eufemia’s niece and petitioner’s sister.9

Respondents point out that it was petitioner and his family who were staying with Eufemia, not the other way around as petitioner claimed. Eufemia paid for the rent of the house, the utilities and other household needs.

Sometime in the 1980s, petitioner was appointed as the "encargado" or administrator of the properties of Eufemia as well as those left by the deceased Maximo. As such, he took charge of collecting payments from tenants and transacted business with third persons for and in behalf of Eufemia and the respondents who were the only compulsory heirs of the late Maximo.

In the latter part of 2002, Eufemia and the respondents demanded an inventory and return of the properties entrusted to petitioner. These demands were unheeded. Hence, Eufemia and the respondents were compelled to file a complaint for estafa against petitioner in the Regional Trial Court of Quezon City. Consequently, and by reason of their mother’s deteriorating health, respondents decided to take custody of Eufemia on January 11, 2005. The latter willingly went with them. In view of all this, petitioner failed to prove either his right to the custody of Eufemia or the illegality of respondents’ action.

We rule for the respondents.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty or by which the rightful custody of a person is being withheld from the one entitled thereto.10 It is issued when one is either deprived of liberty or is wrongfully being prevented from exercising legal custody over another person.11 Thus, it contemplates two instances: (1) deprivation of a person’s liberty either through illegal confinement or through detention and (2) withholding of the custody of any person from someone entitled to such custody.

In this case, the issue is not whether the custody of Eufemia is being rightfully withheld from petitioner but whether Eufemia is being restrained of her liberty. Significantly, although petitioner admits that he did not have legal custody of Eufemia, he nonetheless insists that respondents themselves have no right to her custody. Thus, for him, the issue of legal custody is irrelevant. What is important is Eufemia’s personal freedom.

Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action.12

In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. "The writ of habeas corpuswas devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. A prime specification of an application for a writ ofhabeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient."13(emphasis supplied)

In passing upon a petition for habeas corpus, a court or judge must first inquire into whether the petitioner is being restrained of his liberty.14 If he is not, the writ will be refused. Inquiry into the cause of detention will

proceed only where such restraint exists.15 If the alleged cause is thereafter found to be unlawful, then the writ should be granted and the petitioner discharged.16 Needless to state, if otherwise, again the writ will be refused.

While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation on the filing of the petition.17 Judicial discretion is called for in its issuance and it must be clear to the judge to whom the petition is presented that, prima facie, the petitioner is entitled to the writ.18 It is only if the court is satisfied that a person is being unlawfully restrained of his liberty will the petition for habeas corpus be granted.19 If the respondents are not detaining or restraining the applicant or the person in whose behalf the petition is filed, the petition should be dismissed.20

In this case, the Court of Appeals made an inquiry into whether Eufemia was being restrained of her liberty. It found that she was not:

There is no proof that Eufemia is being detained and restrained of her liberty by respondents. Nothing on record reveals that she was forcibly taken by respondents. On the contrary, respondents, being Eufemia’s adopted children, are taking care of her.21 (emphasis supplied)

The Court finds no cogent or compelling reason to disturb this finding.22

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 167569 September 4, 2009

CARLOS T. GO, SR., Petitioner, vs. LUIS T. RAMOS, Respondent.

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G.R. No. 167570

JIMMY T. GO, Petitioner, vs. LUIS T. RAMOS, Respondent.

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G.R. No. 171946

HON. ALIPIO F. FERNANDEZ, JR., in his capacity as the Commissioner of the BUREAU OF IMMIGRATION; ATTY. FAISAL HUSSIN and ANSARI M. MACAAYAN, in their capacity as Intelligence Officers of the BUREAU OF IMMIGRATION, Petitioners, vs. JIMMY T. GO a.k.a. JAIME T. GAISANO, Respondent.

D E C I S I O N

QUISUMBING, J.:

Before us are three petitions. G.R. Nos. 167569 and 167570 are petitions for review on certiorari to set aside the October 25, 2004 Decision1 and February 16, 2005 Resolution2 of the Court of Appeals in CA-G.R. SP No. 85143 that affirmed the Decision3 dated January 6, 2004 and Order4 dated May 3, 2004 of the Regional Trial Court (RTC) of Pasig City, Branch 167 in SCA No. 2218 upholding the preparation and filing of deportation charges against Jimmy T. Go, the corresponding Charge Sheet5 dated July 3, 2001, and the deportation proceedings thereunder conducted.

On the other hand, G.R. No. 171946, also a petition for review on certiorari, seeks to set aside the December 8, 2005 Decision6 and March 13, 2006 Resolution7 of the appellate court in CA-G.R. SP No. 88277.

Considering that the three cases arose from the same factual milieu, the Court resolved to consolidate G.R. Nos. 167570 and 167569 with G.R. No. 171946 per Resolution8 dated February 26, 2007.

These petitions stemmed from the complaint-affidavit9 for deportation initiated by Luis T. Ramos before the Bureau of Immigration and Deportation (now Bureau of Immigration) against Jimmy T. Go alleging that the latter is an illegal and undesirable alien. Luis alleged that while Jimmy represents himself as a Filipino citizen, Jimmy’s personal circumstances and other records indicate that he is not so. To prove his contention, Luis presented the birth certificate of Jimmy, issued by the Office of the Civil Registrar of Iloilo City, which indicated Jimmy’s citizenship as "FChinese." Luis argued that although it appears from Jimmy’s birth certificate that his parents, Carlos and Rosario Tan, are Filipinos, the document seems to be tampered, because only the citizenship of Carlos appears to be handwritten while all the other entries were typewritten. He also averred that in September 1989 or thereabout, Jimmy, through stealth, machination and scheming managed to cover up his true citizenship, and with the use of falsified documents and untruthful declarations, was able to procure a Philippine passport from the Department of Foreign Affairs.

Jimmy refuted the allegations in his counter-affidavit,10 averring that the complaint for deportation initiated by Luis was merely a harassment case designed to oust him of his rightful share in their business dealings. Jimmy maintained that there is no truth to the allegation that he is an alien, and insisted that he is a natural-born Filipino. Jimmy alleged that his father Carlos, who was the son of a Chinese father and Filipina mother, elected Philippine citizenship in accordance with Article IV, Section 1, paragraph 411 of the 1935 Constitution and Commonwealth Act No. 62512 (Com. Act No. 625), as evidenced by his having taken the Oath of Allegiance on July 11, 1950 and having executed an Affidavit of Election of Philippine citizenship on July 12, 1950. Although the said oath and affidavit were registered only on September 11, 1956, the reason behind such late registration was sufficiently explained in an affidavit. Jimmy added that he had even voted in the 1952 and 1955 elections.13 He denied that his father arrived in the Philippines as an undocumented alien, alleging that his father has no record of arrival in this country as alleged in the complaint-affidavit precisely because his father was born and raised in the Philippines, and in fact, speaks fluent Ilonggo and Tagalog.14

With regard to the erroneous entry in his birth certificate that he is "FChinese," he maintained that such was not of his own doing, but may be attributed to the employees of the Local Civil Registrar’s Office who might have relied on his Chinese-sounding surname when making the said entry. He asserted that the said office has control over his birth certificate; thus, if his father’s citizenship appears to be handwritten, it may have been changed when the employees of that office realized that his father has already taken his oath as a

Filipino.15 As regards the entry in his siblings’ certificates of birth, particularly Juliet Go and Carlos Go, Jr., that their father is Chinese, Jimmy averred that the entry was erroneous because it was made without prior consultation with his father.16

In a Resolution17 dated February 14, 2001, Associate Commissioner Linda L. Malenab-Hornilla dismissed the complaint for deportation against Jimmy. Associate Commissioner Hornilla affirmed the findings of the National Bureau of Investigation tasked to investigate the case that Jimmy’s father elected Filipino citizenship in accordance with the provisions of the 1935 Philippine Constitution. By operation of law, therefore, the citizenship of Carlos was transmitted to Jimmy, making him a Filipino as well.

On March 8, 2001,18 the Board of Commissioners (Board) reversed said dismissal, holding that Carlos’ election of Philippine citizenship was made out of time. Finding Jimmy’s claim to Philippine citizenship in serious doubt by reason of his father’s questionable election thereof, the Board directed the preparation and filing of the appropriate deportation charges against Jimmy.

On July 3, 2001, the corresponding Charge Sheet was filed against Jimmy, charging him of violating Section 37(a)(9)19 in relation to Section 45(c)20 of Com. Act No. 613, otherwise known as The Philippine Immigration Act of 1940,21 as amended, committed as follows:

x x x x

1. That Respondent was born on October 25, 1952 in Iloilo City, as evidenced by a copy of his birth certificate wherein his citizenship was recorded as "Chinese";

2. That Respondent through some stealth machinations was able to subsequently cover up his true and actual citizenship as Chinese and illegally acquired a Philippine Passport under the name JAIME T. GAISANO, with the use of falsified documents and untruthful declarations, in violation of the above-cited provisions of the Immigration Act[;]

3. That [R]espondent being an alien, has formally and officially represent[ed] and introduce[d] himself as a citizen of the Philippines, for fraudulent purposes and in order to evade any requirements of the immigration laws, also in violation of said law.

CONTRARY TO LAW.22

On November 9, 2001, Carlos and Jimmy filed a petition for certiorari and prohibition23 with application for injunctive reliefs before the RTC of Pasig City, Branch 167, docketed as SCA No. 2218, seeking to annul and set aside the March 8, 2001 Resolution of the Board of Commissioners, the Charge Sheet, and the proceedings had therein. In essence, they challenged the jurisdiction of the Board to continue with the deportation proceedings.

In the interim, the Board issued a Decision24 dated April 17, 2002, in BSI-D.C. No. ADD-01-117, ordering the apprehension and deportation of Jimmy. The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing, the Board of Commissioners hereby Orders the apprehension of respondent JIMMY T. GO @ JAIME T. GAISANO and that he be then deported to CHINA of which he is a citizen, without prejudice, however, to the continuation of any and all criminal and other proceedings that are pending in court or before the prosecution arm of the Philippine Government, if any. And that upon expulsion, he is thereby ordered barred from entry into the Philippines.

SO ORDERED.25

In view of the said Decision, Carlos and Jimmy filed on June 13, 2002 a supplemental petition for certiorari and prohibition26 before the trial court and reiterated their application for injunctive reliefs. The trial court issued a writ of preliminary prohibitory injunction pending litigation on the main issue, enjoining the Bureau from enforcing the April 17, 2002 Decision.27 Later, however, the trial court dissolved the writ in a Decision28 dated January 6, 2004 as a consequence of the dismissal of the petition.

Carlos and Jimmy moved for reconsideration. But their motion was likewise denied.29

Following the dismissal of the petition in SCA No. 2218, the Board issued a warrant of deportation30 which led to the apprehension of Jimmy. Jimmy commenced a petition for habeas corpus, but the same was eventually dismissed by reason of his provisional release on bail.31

Carlos and Jimmy then questioned the Decision in SCA No. 2218 as well as the Resolution denying their motion for reconsideration by way of a petition for certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 85143. They imputed grave abuse of discretion by the trial court for passing upon their citizenship, claiming that what they asked for in their petition was merely the nullification of the March 8, 2001 Resolution and the charge sheet.

The appellate tribunal dismissed the petition.32 It did not find merit in their argument that the issue of citizenship should proceed only before the proper court in an independent action, and that neither the Bureau nor the Board has jurisdiction over individuals who were born in the Philippines and have exercised the rights of Filipino citizens. The appellate tribunal also rejected their claim that they enjoy the presumption of being Filipino citizens.

The Court of Appeals held that the Board has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and in the process, determine their citizenship.

The appellate court agreed with the trial court that the principle of jus soli was never extended to the Philippines; hence, could not be made a ground to one’s claim of Philippine citizenship. Like the trial court, the appellate tribunal found that Carlos failed to elect Philippine citizenship within the reasonable period of three years upon reaching the age of majority. Furthermore, it held that the belated submission to the local civil registry of the affidavit of election and oath of allegiance in September 1956 was defective because the affidavit of election was executed after the oath of allegiance, and the delay of several years before their filing with the proper office was not satisfactorily explained.

The course of action taken by the trial court was also approved by the appellate tribunal. The Court of Appeals stated that the trial court necessarily had to rule on the substantial and legal bases warranting the deportation proceeding in order to determine whether the Board acted without or in excess of jurisdiction, or with grave abuse of discretion. Moreover, the appellate court found that due process was properly observed in the proceedings before the Board, contrary to the claim of Jimmy.

Unfazed with the said ruling, they moved for reconsideration. Their motion having been denied,33 Carlos and Jimmy each filed a petition for review on certiorari before this Court, respectively docketed as G.R. Nos. 167569 and 167570.

Meanwhile, in view of the dismissal of CA-G.R. SP. No. 85143, Bureau of Immigration Commissioner Alipio F. Fernandez, Jr. issued Warrant of Deportation No. AFF-04-00334 dated November 16, 2004 to carry out the April 17, 2002 Decision in BSI-D.C. No. ADD-01-117. This resulted in the apprehension and detention of Jimmy at the Bureau of Immigration Bicutan Detention Center, pending his deportation to China.35

On account of his detention, Jimmy once again filed a petition for habeas corpus36 before the RTC of Pasig City, Branch 167, docketed as SP. Proc. No. 11507 assailing his apprehension and detention despite the pendency of his appeal and his release on recognizance.

In an Order37 dated December 6, 2004, the trial court dismissed the said petition ruling that the remedy of habeas corpus cannot be availed of to obtain an order of release once a deportation order has already been issued by the Bureau. Jimmy moved for reconsideration of the Order, but this was also denied by the trial court in an Order38 dated December 28, 2004.

Jimmy assailed the Orders of the trial court in a petition for certiorari and prohibition before the appellate court, docketed as CA-G.R. No. 88277. The Court of Appeals granted the petition and enjoined the deportation of Jimmy until the issue of his citizenship is settled with finality by the court. The Court of Appeals held as follows:

x x x x

…the issuance of a warrant to arrest and deport the petitioner without any proof whatsoever of his violation of the bail conditions [that he was previously granted] is arbitrary, inequitable and unjust, for the policies governing the grant of his bail should likewise apply in the cancellation of the said bail. Although a deportation proceeding does not partake of the nature of a criminal action, yet considering that it is such a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person who all his life has always lived in the Philippines, where he has established his family and business interests, one who appears to be not completely devoid of any claim to Filipino citizenship, being the son of a Filipina, whose father is alleged to also have elected to be a Filipino, the constitutional right of such person to due process cannot be peremptorily dismissed or ignored altogether, and indeed should not be denied. If it later turns out that the petitioner is a Filipino after all, then the overly eager Immigration authorities would have expelled and relegated to statelessness one who might in fact be a Filipino by blood.

x x x x

WHEREFORE, in view of the foregoing, the petition with reference to the Warrant of Deportation issued by the BID is hereby GRANTED. The Bureau of Immigration and Deportation, through Commissioner Alipio F. Fernandez, Jr., Atty. Faizal Hussin and Ansari Maca Ayan, and any of their deputized agents, are ENJOINED from deporting petitioner Jimmy T. Go, a.k.a. Jaime T. Gaisano, until the issue of petitioner’s citizenship is finally settled by the courts of justice.

SO ORDERED.39

Their motion for reconsideration40 having been denied on March 13, 2006, Hon. Alipio Fernandez, in his capacity as the Commissioner of the Bureau of Immigration, and Atty. Faisal Hussin and Ansari M. Macaayan, in their capacity as Intelligence Officers of the Bureau of Immigration, are before this Court as petitioners in G.R. No. 171946.

The parties have raised the following grounds for their respective petitions:

G.R. No. 167569

I.

THE PROCEEDINGS HAD BEFORE THE BUREAU OF IMMIGRATION AND DEPORTATION (B.I.D.) ARE NULL AND VOID FOR ITS FAILURE TO IMPLEAD AN INDISPENSABLE PARTY IN THE PERSON OF PETITIONER CARLOS GO, SR.

II.

… GIVEN THE SUBSTANTIAL EVIDENCE TO PROVE HEREIN PETITIONER CARLOS GO SR.’S FILIPINO CITIZENSHIP, A FULL BLOWN TRIAL UNDER THE MORE RIGID RULES OF EVIDENCE PRESCRIBED IN COURT PROCEEDINGS SHOULD HAVE BEEN CONDUCTED TO DETERMINE HIS FILIPINO CITIZENSHIP AND NOT THROUGH MERE "SUMMARY PROCEEDINGS" SUCH AS THE ONE HAD BEFORE THE B.I.D. AS WELL AS IN THE COURT A QUO.

III.

A FILIPINO CITIZEN IS NOT REQUIRED TO ELECT PHILIPPINE CITIZENSHIP.

IV.

ASSUMING CARLOS GO, SR. STILL NEEDS TO ELECT PHILIPPINE CITIZENSHIP, HE HAD COMPLIED WITH ALL THE REQUIREMENTS OF COM. ACT NO. 625.

V.

PETITIONER CARLOS GO, SR. ENJOYS THE "PRESUMPTION OF CITIZENSHIP."

VI.

RESPONDENT’S "CAUSE OF ACTION" HAD LONG PRESCRIBED.41

G.R. No. 167570

I.

THE PROCEEDINGS HAD BEFORE THE BUREAU OF IMMIGRATION AND DEPORTATION (B.I.D.) ARE NULL AND VOID FOR ITS FAILURE TO IMPLEAD AN INDISPENSABLE PARTY IN THE PERSON OF PETITIONER’S FATHER, CARLOS GO, SR.

II.

THE DEPORTATION PROCEEDINGS BEFORE THE B.I.D. ARE NULL AND VOID FOR ITS FAILURE TO OBSERVE DUE PROCESS.

III.

THE B.I.D.’S CAUSE OF ACTION AGAINST HEREIN PETITIONER JIMMY T. GO HAD ALREADY PRESCRIBED.

IV.

… GIVEN THE SUBSTANTIAL EVIDENCE TO PROVE HEREIN PETITIONER’S FILIPINO CITIZENSHIP, A FULL BLOWN TRIAL UNDER THE MORE RIGID RULES OF EVIDENCE PRESCRIBED IN COURT PROCEEDINGS SHOULD HAVE BEEN CONDUCTED TO DETERMINE HIS FILIPINO CITIZENSHIP AND NOT THROUGH MERE "SUMMARY PROCEEDINGS" SUCH AS THE ONE HAD BEFORE THE B.I.D.42

G.R. No. 171946

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN ENJOINING RESPONDENT’S DEPORTATION.43

Succinctly stated, the issues for our resolution are: (a) whether the cause of action of the Bureau against Carlos and Jimmy had prescribed; (b) whether the deportation proceedings are null and void for failure to implead Carlos as an indispensable party therein; (c) whether the evidence adduced by Carlos and Jimmy to prove their claim to Philippine citizenship is substantial and sufficient to oust the Board of its jurisdiction from continuing with the deportation proceedings in order to give way to a formal judicial action to pass upon the issue of alienage; (d) whether due process was properly observed in the proceedings before the Board; and (e) whether the petition for habeas corpus should be dismissed.

The arguments raised by Carlos and Jimmy in their respective petitions are merely a rehash of the arguments they adduced before the appellate tribunal and the trial court. Once again, they raised the same argument of prescription. As to Carlos, it is his position that being recognized by the government to have acquired Philippine citizenship, evidenced by the Certificate of Election issued to him on September 11, 1956, his citizenship could no longer be questioned at this late date. As for Jimmy, he contends that the Board’s cause of action to deport him has prescribed for the simple reason that his arrest was not made within five (5) years from the time the cause of action arose, which according to him commenced in 1989 when he was alleged to have illegally acquired a Philippine passport.

In any event, they argue that the deportation proceeding should be nullified altogether for failure to implead Carlos as an indispensable party therein. Jimmy posits that the deportation case against him was made to depend upon the citizenship of his father, Carlos, in that the Board found justification to order his deportation by declaring that his father is a Chinese citizen even though the latter was never made a party in the deportation proceedings. They argue that the Board could not simply strip Carlos of his citizenship just so they could question the citizenship of Jimmy. To do so without affording Carlos the opportunity to adduce evidence to prove his claim to Philippine citizenship would be the height of injustice. For failing to accord him the requisite due process, the whole proceeding should perforce be stuck down.

While they concede that the Board has jurisdiction to hear cases against an alleged alien, they insist that judicial intervention may be resorted to when the claim to citizenship is so substantial that there are reasonable grounds to believe that the claim is correct, like in this case. Their claim to Philippine citizenship, they said, is clearly shown by the fact that they were born, had been raised and had lived in this country all their lives; they speak fluent Tagalog and Ilonggo; they engage in businesses reserved solely for Filipinos; they exercise their right to suffrage; they enjoy the rights and privileges accorded only to citizens; and they have no record of any Alien Certificate of Registration. More importantly, they contend that they were validly issued Philippine passports. They further posit that the judicial intervention required is not merely a judicial review of the proceedings below, but a full-blown, adversarial, trial-type proceedings where the rules of evidence are strictly observed.

Considering that his citizenship affects that of his son, Carlos opted to present controverting arguments to sustain his claim to Philippine citizenship, notwithstanding the fact that according to him, he was never impleaded in the deportation proceedings.

Carlos takes exception to the ruling of the appellate court that the doctrine of jus soli failed to accord him Philippine citizenship for the reason that the same was never extended to the Philippines. He insists that if his Philippine citizenship is not recognized by said doctrine, it is nonetheless recognized by the laws enforced prior to the 1935 Constitution, particularly the Philippine Bill of 190244 and the Philippine Autonomy Act of August 29, 1916 (Jones Law of 1916).45

According to Carlos, the Philippine Bill of 1902 and the Jones Law of 1916 deemed all inhabitants of the Philippine Islands as well as their children born after the passage of said laws to be citizens of the Philippines. Because his father, Go Yin An, was a resident of the Philippines at the time of the passage of the Jones Law of 1916, he (Carlos) undoubtedly acquired his father’s citizenship. Article IV, first paragraph, of the 1935 Constitution therefore applies to him. Said constitutional provision reads:

ARTICLE IV. Citizenship

SECTION 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.

x x x x

Even assuming that his father remained as a Chinese, Carlos also claims that he followed the citizenship of his Filipina mother, being an illegitimate son, and that he even validly elected Philippine citizenship when he complied with all the requirements of Com. Act No. 625. He submits that what is being disputed is not whether he complied with Com. Act No. 625, but rather, the timeliness of his compliance. He stresses that the 3-year compliance period following the interpretation given by Cuenco v. Secretary of Justice46 to Article IV, Section 1(4) of the 1935 Constitution and Com. Act No. 625 when election must be made, is not an inflexible rule. He reasoned that the same decision held that such period may be extended under certain circumstances, as when the person concerned has always considered himself a Filipino, like in his case.47

We deny the appeal of Carlos and Jimmy for lack of merit.

Carlos and Jimmy’s claim that the cause of action of the Bureau has prescribed is untenable. Cases involving issues on citizenship are sui generis. Once the citizenship of an individual is put into question, it necessarily has to be threshed out and decided upon. In the case of Frivaldo v. Commission on Elections,48 we said that decisions declaring the acquisition or denial of citizenship cannot govern a person’s future status with finality. This is because a person may subsequently reacquire, or for that matter, lose his citizenship under any of the modes recognized by law for the purpose.49 Indeed, if the issue of one’s citizenship, after it has been passed upon by the courts, leaves it still open to future adjudication, then there is more reason why the government should not be precluded from questioning one’s claim to Philippine citizenship, especially so when the same has never been threshed out by any tribunal.

Jimmy’s invocation of prescription also does not persuade us. Section 37 (b) of Com. Act No. 613 states:

Section 37. …

x x x x

(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 of this section at any time after entry, but shall not be effected under any other clause unless the arrest in the deportation proceedings is made within five years after the cause of deportation arises….

x x x x

As shown in the Charge Sheet, Jimmy was charged for violation of Section 37(a)(9),50 in relation to Section 45(e)51 of Com. Act No. 613. From the foregoing provision, his deportation may be effected only if his arrest is made within 5 years from the time the cause for deportation arose. The court a quo is correct when it ruled that the 5-year period should be counted only from July 18, 2000, the time when Luis filed his complaint for deportation. It is the legal possibility of bringing the action which determines the starting point for the computation of the period of prescription.52 Additionally, Section 2 of Act No. 3326,53 as amended, entitled "An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin to Run," provides:

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

x x x x

The counting could not logically start in 1989 when his passport was issued because the government was unaware that he was not a Filipino citizen. Had the government been aware at such time that he was not a Filipino citizen or there were certain anomalies attending his application for such passport, it would have denied his application.

As to the issue of whether Carlos is an indispensable party, we reiterate that an indispensable party is a party in interest without whom no final determination can be had of an action, and who shall be joined either as plaintiff or defendant.54 To be indispensable, a person must first be a real party in interest, that is, one who stands to be benefited or injured by the judgment of the suit, or the party entitled to the avails of the suit.55 Carlos clearly is not an indispensable party as he does not stand to be benefited or injured by the judgment of the suit. What is sought is the deportation of Jimmy on the ground that he is an alien. Hence, the principal issue that will be decided on is the propriety of his deportation. To recall, Jimmy claims that he is a Filipino under Section 1(3),56 Article IV of the 1935 Constitution because Carlos, his father, is allegedly a citizen.57 Since his citizenship hinges on that of his father’s, it becomes necessary to pass upon the citizenship of the latter. However, whatever will be the findings as to Carlos’ citizenship will in no way prejudice him.

Citizenship proceedings, as aforestated, are a class of its own, in that, unlike other cases, res judicata does not obtain as a matter of course. In a long line of decisions, this Court said that every time the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res judicata; hence, it has to be threshed out again and again as the occasion may demand.58 Res judicata may be applied in cases of citizenship only if the following concur:

1. a person’s citizenship must be raised as a material issue in a controversy where said person is a party;

2. the Solicitor General or his authorized representative took active part in the resolution thereof; and

3. the finding or citizenship is affirmed by this Court.59

In the event that the citizenship of Carlos will be questioned, or his deportation sought, the same has to be ascertained once again as the decision which will be rendered hereinafter shall have no preclusive effect upon his citizenship. As neither injury nor benefit will redound upon Carlos, he cannot be said to be an indispensable party in this case.

There can be no question that the Board has the authority to hear and determine the deportation case against a deportee and in the process determine also the question of citizenship raised by him.60 However, this Court, following American jurisprudence, laid down the exception to the primary jurisdiction enjoyed by the deportation board in the case of Chua Hiong v. Deportation Board61 wherein we stressed that judicial determination is permitted in cases when the courts themselves believe that there is substantial evidence supporting the claim of citizenship, so substantial that there are reasonable grounds for the belief that the claim is correct.62 Moreover, when the evidence submitted by a deportee is conclusive of his citizenship, the right to immediate review should also be recognized and the courts shall promptly enjoin the deportation proceedings.63

While we are mindful that resort to the courts may be had, the same should be allowed only in the sound discretion of a competent court in proper proceedings.64 After all, the Board’s jurisdiction is not divested by the mere claim of citizenship.65 Moreover, a deportee who claims to be a citizen and not therefore subject to deportation has the right to have his citizenship reviewed by the courts, after the deportation proceedings.66 The decision of the Board on the question is, of course, not final but subject to review by the courts.671avvphi1

After a careful evaluation of the evidence, the appellate court was not convinced that the same was sufficient to oust the Board of its jurisdiction to continue with the deportation proceedings considering that what were presented particularly the birth certificates of Jimmy, as well as those of his siblings, Juliet Go and Carlos Go, Jr. indicate that they are Chinese citizens. Furthermore, like the Board, it found the election of Carlos of Philippine citizenship, which was offered as additional proof of his claim, irregular as it was not made on time.

We find no cogent reason to overturn the above findings of the appellate tribunal. The question of whether substantial evidence had been presented to allow immediate recourse to the regular courts is a question of fact which is beyond this Court’s power of review for it is not a trier of facts.68 None of the exceptions69 in which this Court may resolve factual issues has been shown to exist in this case. Even if we evaluate their arguments and the evidence they presented once again, the same conclusion will still be reached.

One of the arguments raised to sustain Carlos’ claim to Philippine citizenship is the doctrine of jus soli, or the doctrine or principle of citizenship by place of birth. To recall, both the trial court and the Court of Appeals ruled that the doctrine of jus soli was never extended to the Philippines. We agree. The doctrine of jus soli was for a time the prevailing rule in the acquisition of one’s citizenship.70 However, the Supreme Court abandoned the principle of jus soli in the case of Tan Chong v. Secretary of Labor.71 Since then, said doctrine only benefited those who were individually declared to be citizens of the Philippines by a final court decision on the mistaken application of jus soli.72

Neither will the Philippine Bill of 190273 nor the Jones Law of 191674 make Carlos a citizen of the Philippines. His bare claim that his father, Go Yin An, was a resident of the Philippines at the time of the passage of the said laws, without any supporting evidence whatsoever will not suffice.

It is a settled rule that only legitimate children follow the citizenship of the father and that illegitimate children are under the parental authority of the mother and follow her nationality.75 Moreover, we have also ruled that an illegitimate child of a Filipina need not perform any act to confer upon him all the rights and privileges attached to citizens of the Philippines; he automatically becomes a citizen himself.76 However, it is our considered view that absent any evidence proving that Carlos is indeed an illegitimate son of a Filipina, the aforestated established rule could not be applied to him.

As to the question of whether the election of Philippine citizenship conferred on Carlos Filipino citizenship, we find that the appellate court correctly found that it did not.

Com. Act No. 625 which was enacted pursuant to Section 1(4), Article IV of the 1935 Constitution, prescribes the procedure that should be followed in order to make a valid election of Philippine citizenship. Under Section 1 thereof, legitimate children born of Filipino mothers may elect Philippine citizenship by expressing such intention "in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines."77

However, the 1935 Constitution and Com. Act No. 625 did not prescribe a time period within which the election of Philippine citizenship should be made. The 1935 Charter only provides that the election should be made "upon reaching the age of majority." The age of majority then commenced upon reaching 21 years. In the opinions of the then Secretary of Justice on cases involving the validity of election of Philippine

citizenship, this dilemma was resolved by basing the time period on the decisions of this Court prior to the effectivity of the 1935 Constitution. In these decisions, the proper period for electing Philippine citizenship was, in turn, based on the pronouncements of the Department of State of the United States Government to the effect that the election should be made within a "reasonable time" after attaining the age of majority. The phrase "reasonable time" has been interpreted to mean that the election should be made within three (3) years from reaching the age of majority.78

It is true that we said that the 3-year period for electing Philippine citizenship may be extended as when the person has always regarded himself as a Filipino. Be that as it may, it is our considered view that not a single circumstance was sufficiently shown meriting the extension of the 3-year period. The fact that Carlos exercised his right of suffrage in 1952 and 1955 does not demonstrate such belief, considering that the acts were done after he elected Philippine citizenship. On the other hand, the mere fact that he was able to vote does not validate his irregular election of Philippine citizenship. At most, his registration as a voter indicates his desire to exercise a right appertaining exclusively to Filipino citizens but does not alter his real citizenship, which, in this jurisdiction, is determined by blood (jus sanguinis). The exercise of the rights and privileges granted only to Filipinos is not conclusive proof of citizenship, because a person may misrepresent himself to be a Filipino and thus enjoy the rights and privileges of citizens of this country.79

It is incumbent upon one who claims Philippine citizenship to prove to the satisfaction of the court that he is really a Filipino. No presumption can be indulged in favor of the claimant of Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the state.80

As Carlos and Jimmy neither showed conclusive proof of their citizenship nor presented substantial proof of the same, we have no choice but to sustain the Board’s jurisdiction over the deportation proceedings. This is not to say that we are ruling that they are not Filipinos, for that is not what we are called upon to do. This Court necessarily has to pass upon the issue of citizenship only to determine whether the proceedings may be enjoined in order to give way to a judicial determination of the same. And we are of the opinion that said proceedings should not be enjoined.

In our considered view, the allegation of Jimmy that due process was not observed in the deportation proceedings must likewise fail.

Deportation proceedings are administrative in character, summary in nature, and need not be conducted strictly in accordance with the rules of ordinary court proceedings.81 The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of.82 As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.83 Although Jimmy was not furnished with a copy of the subject Resolution and Charge Sheet as alleged by him, the trial court found that he was given ample opportunity to explain his side and present controverting evidence, thus:

x x x It must be stressed that after receiving the Order dated September 11, 2001 signed by BSI Chief Ronaldo P. Ledesma on October 4, 2001, petitioner Jimmy T. Go admitted that when his representative went to the B.I.D. to inquire about the said Order, the latter chanced upon the Resolution dated February 14, 2001 and March 8, 2001 as well as the Charge Sheet dated July 3, 2001. Hence on October 5, 2001, he filed a "Motion for Extension of Time to File Memorandum" and as such, was allowed by Ronaldo P. Ledesma an extension of ten (10) days to submit his required memorandum. x x x84

This circumstance satisfies the demands of administrative due process.

As regards the petition in G.R. No. 171946, petitioners contend that the appellate tribunal erred in enjoining Jimmy’s deportation.85

Petitioners question the remedy availed of by Jimmy. They argue that the existence of the remedy of an ordinary appeal proscribes the filing of the petition for certiorari as was done in this case. They point out that the appeal period in habeas corpus cases is only 48 hours, compared to a special civil action under Rule 65 of the Rules of Court which is 60 days. This clearly shows that an ordinary appeal is the more plain, speedy and adequate remedy; hence, it must be the one availed of.86 Since the decision of the trial court was not properly appealed, the same may be said to have attained finality, and may no longer be disturbed.87

They maintain that the dismissal of the petition for habeas corpus by the trial court was proper. A petition for habeas corpus has for its purpose only the determination of whether or not there is a lawful ground for Jimmy’s apprehension and continued detention. They urge that the decision of the Board dated April 17, 2002 that ordered Jimmy’s deportation has already attained finality by reason of the belated appeal taken by Jimmy from the said decision on April 2, 2004 before the Office of the President, or after almost two years from the time the decision was rendered. Said decision of the Board, they insist, is the lawful ground that sanctions Jimmy’s apprehension and detention.88

Petitioners in G.R. No. 171946 also argue that Jimmy cannot rely on the bail on recognizance he was previously granted to question his subsequent apprehension and detention. Under the Philippine Immigration Act of 1940, the power to grant bail can only be exercised while the alien is still under investigation, and not when the order of deportation had already been issued by the Board.89 Hence, the bail granted was irregular as it has no legal basis. Furthermore, they said the petition for habeas corpus necessarily has to be dismissed because the same is no longer proper once the applicant thereof has been charged before the Board, which is the case with Jimmy.90Nonetheless, they claim that the habeas corpus case is rendered moot and academic as Jimmy is no longer being detained.91

On the other hand, Jimmy counters that the instant petition for certiorari and prohibition is the most appropriate, speedy and adequate remedy in spite of the availability of ordinary appeal considering that what is involved in this case is his cherished liberty. Grave abuse of discretion on the part of the petitioners in ordering his arrest and detention, he argues, all the more justifies the avails of the extraordinary writ.92 Contrary to the petitioners’ stand, Jimmy argues that the April 17, 2002 Decision of the Board has not attained finality owing to the availability of various remedies, one of which is an appeal, and in fact is actually void because it was rendered without due process.93 He also insists that the bail issued to him is valid and effective until the final determination of his citizenship before the proper courts.94 Moreover, he maintains that the petition for habeas corpus was proper since its object is to inquire into the legality of one’s detention, and if found illegal, to order the release of the detainee.95 As in his petition in G.R. No. 167570, Jimmy also contends that the proceedings before the Board is void for failure to implead therein his father, and that he should have been given a full blown trial before a regular court where he can prove his citizenship.96

Considering the arguments and contentions of the parties, we find the petition in G.R. No. 171946 meritorious.a1f

We have held in a litany of cases that the extraordinary remedies of certiorari, prohibition and mandamus are available only when there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. The writ of certiorari does not lie where an appeal may be taken or where another adequate remedy is available for the correction of the error.97

The petitioners correctly argue that appeal should have been the remedy availed of as it is more plain, speedy and adequate. The 48-hour appeal period demonstrates the adequacy of such remedy in that no unnecessary time will be wasted before the decision will be re-evaluated.

A petition for the issuance of a writ of habeas corpus is a special proceeding governed by Rule 102 of the Revised Rules of Court. The objective of the writ is to determine whether the confinement or detention is valid or lawful. If it is, the writ cannot be issued. What is to be inquired into is the legality of a person’s detention as of, at the earliest, the filing of the application for the writ of habeas corpus, for even if the

detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 498 of Rule 102, be no longer illegal at the time of the filing of the application.99

Once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term "court" in this context includes quasi-judicial bodies of governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration.100Likewise, the cancellation of his bail cannot be assailed via a petition for habeas corpus. When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it.101

Given that Jimmy has been duly charged before the Board, and in fact ordered arrested pending his deportation, coupled by this Court’s pronouncement that the Board was not ousted of its jurisdiction to continue with the deportation proceedings, the petition for habeas corpus is rendered moot and academic. This being so, we find it unnecessary to touch on the other arguments advanced by respondents regarding the same subject.

WHEREFORE, the petitions in G.R. Nos. 167569 and 167570 are DENIED. The Decision dated October 25, 2004 and Resolution dated February 16, 2005 of the Court of Appeals in CA-G.R. SP No. 85143 are AFFIRMED. The petition in G.R. No. 171946 is hereby GRANTED. The Decision dated December 8, 2005 and Resolution dated March 13, 2006 of the Court of Appeals in CA-G.R. SP No. 88277 are REVERSED and SET ASIDE. The December 6, 2004 and December 28, 2004 Orders of the Regional Trial Court of Pasig City, Branch 167 are hereby REINSTATED.

No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,petitioners, vs. RAYMOND MANALO and REYNALDO MANALO, respondents.

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 191 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 14 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 AmparoPetition, 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. 266 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. 187 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 AmparoRule 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 latter's 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 theirbarangay 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 barangaycouncilors, 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 Reynaldo's. 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 (Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room. The soldiers asked him if he was a member of the New People's 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, Raymond's 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 inside Fort 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 people22 had been detained in thatbartolina, 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 Hilario's 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, basta't sundin n'yo 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 former's 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, Raymond's parents acceded. Hilario threatened Raymond's 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 24th 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, Raymond's 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 Empeño 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 24th 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 24th 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 24th 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 Raymond's 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 ito'y 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 for Manila and were thus freed from captivity.45

Reynaldo also executed an affidavit affirming the contents of Raymond's 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 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of the 7th 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, 7th 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 AmparoRule 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 ofAmparo 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 ofAmparo (G.R. No. 179994) filed at the instance of relatives of a certain Cadapan and Empeño 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, Empeño and Merino, which averred among others, viz:

10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion detachment as detention area, I immediately went to the 24th IB detachment in Limay, Bataan and found no untoward incidents in the area nor any detainees by the name of Sherlyn Cadapan, Karen Empeño and Manuel Merino being held captive;

11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay, Bataan;

12) After going to the 24th 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 1st Lt. Romeo Publico to inquire into the alleged beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan, Karen Empeño 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, Empeño 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, 7th 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 24th Infantry Battalion is part of the 7th Infantry Division.54

On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th 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 investigated61 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 Jimenez's 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 on 14 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 CAFGU's, 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 court's 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 Court's expanded power to

promulgate rules to protect our people's 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 Tocqueville's 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 Rejón, 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 official's 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 Mexico's self-attributed "task of conveying to the world's 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.86Other 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 violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

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

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 bysubstantial 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 Manalo's 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 7th 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 7th 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. Palparan's 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. Palparan's 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. Hilario's 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 Manalo's statements were not corroborated by other independent and credible pieces of evidence.102 Raymond's 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 Manalo's 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 Commission's 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 places112 fall under the general coverage of the right to security of person under the writ ofAmparo." 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. Enrile113 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 one's person, including the extensions of his/her person - houses, papers, and effects - against government intrusion. Section 2 not only limits the state's power over a person's 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. (Tañada 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 man's 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 1120 guarantees essentially the right to be alive121 - 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 man's existence."122 In a broad sense, the right to security of person "emanates in a person's 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, acause 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, one's 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 and security 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 one's 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 Committee136 in not a few cases involving Article 9137 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 préparatoires 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 complainant's husband who was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder of the complainant's partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia,144involving 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 claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's 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 Raymond's 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 Empeño, 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 7thInfantry 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 subpoenapertained 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.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 182484 June 17, 2008

DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-MADRIAGA, LIBERTY M. ASUNCION, LADYLYN BAMOS MADRIAGA, EVERLY TAPUZ MADRIAGA, EXCEL TAPUZ, IVAN TAPUZ AND MARIAN TIMBAS, petitioners, vs. HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding Judge of RTC Br. 5 Kalibo, SHERIFF NELSON DELA CRUZ, in his capacity as Sheriff of the RTC, THE PHILIPPINE NATIONAL POLICE stationed in Boracay Island, represented by the PNP STATION COMMANDER, THE HONORABLE COURT OF APPEALS IN CEBU 18th DIVISION, SPOUSES GREGORIO SANSON & MA. LOURDES T. SANSON,respondents.

RESOLUTION

BRION, J.:

Before us for the determination of sufficiency of form and substance (pursuant to Sections 1 and 4 of Rule 65 of the Revised Rules of Court; Sections 1 and 5 of the Rule on the Writ of Amparo;1 and Sections 1 and 6 of theRule on the Writ of Habeas Data2) is the petition for certiorari and for the issuance of the writs of amparo and habeas data filed by the above-named petitioners against the Honorable Judge Elmo del Rosario [in his capacity as presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson de la Cruz [in his capacity as Sheriff of the RTC], the Philippine National Police stationed in Boracay Island, represented by the PNP Station Commander, the Honorable Court of Appeals in Cebu, 18th Division, and the spouses Gregorio Sanson and Ma. Lourdes T. Sanson, respondents.

The petition and its annexes disclose the following material antecedents:

The private respondents spouses Gregorio Sanson and Ma. Lourdes T. Sanson (the "private respondents"), filed with the Fifth Municipal Circuit Trial Court of Buruanga-Malay, Aklan (the "MCTC") a complaint3 dated 24 April 2006 for forcible entry and damages with a prayer for the issuance of a writ of preliminary mandatory injunction against the petitioners Daniel Masangkay Tapuz, Aurora Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan Tapuz and Marian Timbas (the "petitioners") and other John Does numbering about 120. The private respondents alleged in their complaint that: (1) they are the registered owners under TCT No. 35813 of a 1.0093-hectare parcel of land located at

Sitio Pinaungon, Balabag, Boracay, Malay, Aklan (the "disputed land"); (2) they were the disputed land's prior possessors when the petitioners - armed with bolos and carrying suspected firearms and together with unidentified persons numbering 120 - entered the disputed land by force and intimidation, without the private respondents' permission and against the objections of the private respondents' security men, and built thereon a nipa and bamboo structure.

In their Answer4 dated 14 May 2006, the petitioners denied the material allegations of the complaint. They essentially claimed that: (1) they are the actual and prior possessors of the disputed land; (2) on the contrary, the private respondents are the intruders; and (3) the private respondents' certificate of title to the disputed property is spurious. They asked for the dismissal of the complaint and interposed a counterclaim for damages.

The MCTC, after due proceedings, rendered on 2 January 2007 a decision5 in the private respondents' favor. It found prior possession - the key issue in forcible entry cases - in the private respondents' favor, thus:

"The key that could unravel the answer to this question lies in the Amended Commissioner's Report and Sketch found on pages 245 to 248 of the records and the evidence the parties have submitted. It is shown in the Amended Commissioner's Report and Sketch that the land in question is enclosed by a concrete and cyclone wire perimeter fence in pink and green highlighter as shown in the Sketch Plan (p. 248). Said perimeter fence was constructed by the plaintiffs 14 years ago. The foregoing findings of the Commissioner in his report and sketch collaborated the claim of the plaintiffs that after they acquired the land in question on May 27, 1993 through a Deed of Sale (Annex 'A', Affidavit of Gregorio Sanson, p. 276, rec.), they caused the construction of the perimeter fence sometime in 1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.).

From the foregoing established facts, it could be safely inferred that the plaintiffs were in actual physical possession of the whole lot in question since 1993 when it was interrupted by the defendants (sic) when on January 4, 2005 claiming to (sic) the Heirs of Antonio Tapuz entered a portion of the land in question with view of inhabiting the same and building structures therein prompting plaintiff Gregorio Sanson to confront them before BSPU, Police Chief Inspector Jack L. Wanky and Barangay Captain Glenn Sacapaño. As a result of their confrontation, the parties signed an Agreement (Annex 'D', Complaint p. 20) wherein they agreed to vacate the disputed portion of the land in question and agreed not to build any structures thereon.

The foregoing is the prevailing situation of the parties after the incident of January 4, 2005 when the plaintiff posted security guards, however, sometime on or about 6:30 A.M. of April 19, 2006, the defendants some with bolos and one carrying a sack suspected to contain firearms with other John Does numbering about 120 persons by force and intimidation forcibly entered the premises along the road and built a nipa and bamboo structure (Annex 'E', Complaint, p. 11) inside the lot in question which incident was promptly reported to the proper authorities as shown by plaintiffs' Certification (Annex 'F', Complaint, p. 12) of the entry in the police blotter and on same date April 19, 2006, the plaintiffs filed a complaint with the Office of the Lupong Tagapamayapa of Barangay Balabag, Boracay Island, Malay, Aklan but no settlement was reached as shown in their Certificate to File Action (Annex 'G', Complaint, p. 13); hence the present action.

Defendants' (sic) contend in their answer that 'prior to January 4, 2005, they were already occupants of the property, being indigenous settlers of the same, under claim of ownership by open continuous, adverse possession to the exclusion of other (sic)'. (Paragraph 4, Answer, p. 25).

The contention is untenable. As adverted earlier, the land in question is enclosed by a perimeter fence constructed by the plaintiffs sometime in 1993 as noted by the Commissioner in his Report and reflected in his Sketch, thus, it is safe to conclude that the plaintiffs where (sic) in actual physical possession of the land in question from 1993 up to April 19, 2006 when they were ousted therefrom

by the defendants by means of force. Applying by analogy the ruling of the Honorable Supreme Court in the case of Molina, et al. vs. De Bacud, 19 SCRA 956, if the land were in the possession of plaintiffs from 1993 to April 19, 2006, defendants' claims to an older possession must be rejected as untenable because possession as a fact cannot be recognized at the same time in two different personalities.

Defendants likewise contend that it was the plaintiffs who forcibly entered the land in question on April 18, 2006 at about 3:00 o'clock in the afternoon as shown in their Certification (Annex 'D', Defendants' Position Paper, p. 135, rec.).

The contention is untenable for being inconsistent with their allegations made to the commissioner who constituted (sic) the land in question that they built structures on the land in question only on April 19, 2006 (Par. D.4, Commissioner's Amended Report, pp. 246 to 247), after there (sic) entry thereto on even date.

Likewise, said contention is contradicted by the categorical statements of defendants' witnesses, Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143- '144, rec.) [sic] categorically stated 'that on or about April 19, 2006, a group of armed men entered the property of our said neighbors and built plastic roofed tents. These armed men threatened to drive our said neighbors away from their homes but they refused to leave and resisted the intruding armed men'.

From the foregoing, it could be safely inferred that no incident of forcible entry happened on April 18, 2006 but it was only on April 19, 2006 when the defendants overpowered by their numbers the security guards posted by the plaintiffs prior to the controversy.

Likewise, defendants (sic) alleged burnt and other structures depicted in their pictures attached as annexes to their position paper were not noted and reflected in the amended report and sketch submitted by the Commissioner, hence, it could be safely inferred that these structures are built and (sic) situated outside the premises of the land in question, accordingly, they are irrelevant to the instant case and cannot be considered as evidence of their actual possession of the land in question prior to April 19, 20066."

The petitioners appealed the MCTC decision to the Regional Trial Court ("RTC," Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M. Marin ("Judge Marin").

On appeal, Judge Marin granted the private respondents' motion for the issuance of a writ of preliminary mandatory injunction through an Order dated 26 February 2007, with the issuance conditioned on the private respondents' posting of a bond. The writ7 - authorizing the immediate implementation of the MCTC decision - was actually issued by respondent Judge Elmo F. del Rosario (the "respondent Judge") on 12 March 2007 after the private respondents had complied with the imposed condition. The petitioners moved to reconsider the issuance of the writ; the private respondents, on the other hand, filed a motion for demolition.

The respondent Judge subsequently denied the petitioners' Motion for Reconsideration and to Defer Enforcement of Preliminary Mandatory Injunction in an Order dated 17 May 20078.

Meanwhile, the petitioners opposed the motion for demolition.9 The respondent Judge nevertheless issued via a Special Order10 a writ of demolition to be implemented fifteen (15) days after the Sheriff's written notice to the petitioners to voluntarily demolish their house/s to allow the private respondents to effectively take actual possession of the land.

The petitioners thereafter filed on 2 August 2007 with the Court of Appeals, Cebu City, a Petition for Review11(under Rule 42 of the 1997 Rules of Civil Procedure) of the Permanent Mandatory Injunction and Order of Demolition of the RTC of Kalibo, Br. 6 in Civil Case No. 7990.

Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to Vacate and for Demolition on 19 March 2008.12

It was against this factual backdrop that the petitioners filed the present petition last 29 April 2008. The petition contains and prays for three remedies, namely: a petition for certiorari under Rule 65 of the Revised Rules of Court; the issuance of a writ of habeas data under the Rule on the Writ of Habeas Data; and finally, the issuance of the writ of amparo under the Rule on the Writ of Amparo.

To support the petition and the remedies prayed for, the petitioners present factual positions diametrically opposed to the MCTC's findings and legal reasons. Most importantly, the petitioners maintain their claims of prior possession of the disputed land and of intrusion into this land by the private respondents. The material factual allegations of the petition - bases as well of the petition for the issuance of the writ of amparo - read:

"29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge shot guns intruded into the property of the defendants [the land in dispute]. They were not in uniform. They fired their shotguns at the defendants. Later the following day at 2:00 a.m. two houses of the defendants were burned to ashes.

30. These armed men [without uniforms] removed the barbed wire fence put up by defendants to protect their property from intruders. Two of the armed men trained their shotguns at the defendants who resisted their intrusion. One of them who was identified as SAMUEL LONGNO y GEGANSO, 19 years old, single, and a resident of Binun-an, Batad, Iloilo, fired twice.

31. The armed men torched two houses of the defendants reducing them to ashes. [...]

32. These acts of TERRORISM and (heinous crime) of ARSON were reported by one of the HEIRS OF ANTONIO TAPUZ [...]. The terrorists trained their shotguns and fired at minors namely IVAN GAJISAN and MICHAEL MAGBANUA, who resisted their intrusion. Their act is a blatant violation of the law penalizing Acts of Violence against women and children, which is aggravated by the use of high-powered weapons.

[…]

34. That the threats to the life and security of the poor indigent and unlettered petitioners continue because the private respondents Sansons have under their employ armed men and they are influential with the police authorities owing to their financial and political clout.

35. The actual prior occupancy, as well as the ownership of the lot in dispute by defendants and the atrocities of the terrorists [introduced into the property in dispute by the plaintiffs] are attested by witnesses who are persons not related to the defendants are therefore disinterested witnesses in the case namely: Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Penarada. Likewise, the affidavit of Nemia T. Carmen is submitted to prove that the plaintiffs resorted to atrocious acts through hired men in their bid to unjustly evict the defendants.13"

The petitioners posit as well that the MCTC has no jurisdiction over the complaint for forcible entry that the private respondents filed below. Citing Section 33 of The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691,14 they maintain that the forcible entry case in fact involves issues of title to or possession of real property or an interest therein, with the assessed value of the property involved exceeding P20,000.00; thus, the case should be originally cognizable by the RTC. Accordingly, the petitioners reason out that the RTC - to where the MCTC decision was appealed - equally has no jurisdiction to rule on the case on appeal and could not have validly issued the assailed orders.

OUR RULING

We find the petitions for certiorari and issuance of a writ of habeas data fatally defective, both in substance and in form. The petition for the issuance of the writ of amparo, on the other hand, is fatally defective with respect to content and substance.

The Petition for Certiorari

We conclude, based on the outlined material antecedents that led to the petition, that the petition for certiorari to nullify the assailed RTC orders has been filed out of time. It is not lost on us that the petitioners have a pending petition with the Court of Appeals (the "CA petition") for the review of the same RTC orders now assailed in the present petition, although the petitioners never disclosed in the body of the present petition the exact status of their pending CA petition. The CA petition, however, was filed with the Court of Appeals on 2 August 2007, which indicates to us that the assailed orders (or at the very least, the latest of the interrelated assailed orders) were received on 1 August 2007 at the latest. The present petition, on the other hand, was filed on April 29, 2008 or more than eight months from the time the CA petition was filed. Thus, the present petition is separated in point of time from the assumed receipt of the assailed RTC orders by at least eight (8) months, i.e., beyond the reglementary period of sixty (60) days15 from receipt of the assailed order or orders or from notice of the denial of a seasonably filed motion for reconsideration.

We note in this regard that the petitioners' counsel stated in his attached "Certificate of Compliance with Circular #1-88 of the Supreme Court"16 ("Certificate of Compliance") that "in the meantime the RTC and the Sheriff issued a NOTICE TO VACATE AND FOR DEMOLITION not served to counsel but to the petitioners who sent photo copy of the same NOTICE to their counsel on April 18, 2008 by LBC." To guard against any insidious argument that the present petition is timely filed because of this Notice to Vacate, we feel it best to declare now that the counting of the 60-day reglementary period under Rule 65 cannot start from the April 18, 2008 date cited by the petitioners' counsel. The Notice to Vacate and for Demolition is not an order that exists independently from the RTC orders assailed in this petition and in the previously filed CA petition. It is merely a notice, made in compliance with one of the assailed orders, and is thus an administrative enforcement medium that has no life of its own separately from the assailed order on which it is based. It cannot therefore be the appropriate subject of an independent petition for certiorari under Rule 65 in the context of this case. The April 18, 2008 date cannot likewise be the material date for Rule 65 purposes as the above-mentioned Notice to Vacate is not even directly assailed in this petition, as the petition's Prayer patently shows.17

Based on the same material antecedents, we find too that the petitioners have been guilty of willful and deliberate misrepresentation before this Court and, at the very least, of forum shopping.

By the petitioners' own admissions, they filed a petition with the Court of Appeals (docketed as CA - G.R. SP No. 02859) for the review of the orders now also assailed in this petition, but brought the present recourse to us, allegedly because "the CA did not act on the petition up to this date and for the petitioner (sic) to seek relief in the CA would be a waste of time and would render the case moot and academic since the CA refused to resolve pending urgent motions and the Sheriff is determined to enforce a writ of demolition despite the defect of LACK OF JURISDICTION."18

Interestingly, the petitioners' counsel - while making this claim in the body of the petition - at the same time represented in his Certificate of Compliance19 that:

"x x x

(e) the petitioners went up to the Court of Appeals to question the WRIT OF PRELIMINARY INJUNCTION copy of the petition is attached (sic);

(f) the CA initially issued a resolution denying the PETITION because it held that the ORDER TO VACATE AND FOR DEMOLITION OF THE HOMES OF PETITIONERS is not capable of being

the subject of a PETITION FOR RELIEF, copy of the resolution of the CA is attached hereto; (underscoring supplied)

(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up to this date the same had not been resolved copy of the MR is attached (sic).

x x x"

The difference between the above representations on what transpired at the appellate court level is replete with significance regarding the petitioners' intentions. We discern -- from the petitioners' act of misrepresenting in the body of their petition that "the CA did not act on the petition up to this date" while stating the real Court of Appeals action in the Certification of Compliance -- the intent to hide the real state of the remedies the petitioners sought below in order to mislead us into action on the RTC orders without frontally considering the action that the Court of Appeals had already undertaken.

At the very least, the petitioners are obviously seeking to obtain from us, via the present petition, the same relief that it could not wait for from the Court of Appeals in CA-G.R. SP No. 02859. The petitioners' act of seekingagainst the same parties the nullification of the same RTC orders before the appellate court and before us at the same time, although made through different mediums that are both improperly used, constitutes willful and deliberate forum shopping that can sufficiently serve as basis for the summary dismissal of the petition under the combined application of the fourth and penultimate paragraphs of Section 3, Rule 46; Section 5, Rule 7; Section 1, Rule 65; and Rule 56, all of the Revised Rules of Court. That a wrong remedy may have been used with the Court of Appeals and possibly with us will not save the petitioner from a forum-shopping violation where there is identity of parties, involving the same assailed interlocutory orders, with the recourses existing side by side at the same time.

To restate the prevailing rules, "forum shopping is the institution of two or more actions or proceedings involving the same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the other court would make a favorable disposition. Forum shopping may be resorted to by any party against whom an adverse judgment or order has been issued in one forum, in an attempt to seek a favorable opinion in another, other than by appeal or a special civil action for certiorari. Forum shopping trifles with the courts, abuses their processes, degrades the administration of justice and congest court dockets. Willful and deliberate violation of the rule against it is a ground for summary dismissal of the case; it may also constitute direct contempt."20

Additionally, the required verification and certification of non-forum shopping is defective as one (1) of the seven (7) petitioners - Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65; all in relation with Rule 56 of the Revised Rules of Court. Of those who signed, only five (5) exhibited their postal identification cards with the Notary Public.

In any event, we find the present petition for certiorari, on its face and on the basis of the supporting attachments, to be devoid of merit. The MCTC correctly assumed jurisdiction over the private respondents' complaint, which specifically alleged a cause for forcible entry and not - as petitioners may have misread or misappreciated - a case involving title to or possession of realty or an interest therein. Under Section 33, par. 2 of The Judiciary Reorganization Act, as amended by Republic Act (R.A.) No. 7691, exclusive jurisdiction over forcible entry and unlawful detainer cases lies with the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. These first-level courts have had jurisdiction over these cases - called accion interdictal - even before the R.A. 7691 amendment, based on the issue of pure physical possession (as opposed to the right of possession). This jurisdiction is regardless of the assessed value of the property involved; the law established no distinctions based on the assessed value of the property forced into or unlawfully detained. Separately from accion interdictalare accion publiciana for the recovery of the right of possession as a plenary action, and accion reivindicacion for the recovery of ownership.21 Apparently, these latter actions are the ones the petitioners refer to when they cite Section 33, par. 3, in relation with Section

19, par. 2 of The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, in which jurisdiction may either be with the first-level courts or the regional trial courts,depending on the assessed value of the realty subject of the litigation. As the complaint at the MCTC was patently for forcible entry, that court committed no jurisdictional error correctible by certiorari under the present petition.

In sum, the petition for certiorari should be dismissed for the cited formal deficiencies, for violation of the non-forum shopping rule, for having been filed out of time, and for substantive deficiencies.

The Writ of Amparo

To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands - requires that every petition for the issuance of the Pwrit must be supported by justifying allegations of fact, to wit:

"(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs."22

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed.

The issuance of the writ of amparo in the present case is anchored on the factual allegations heretofore quoted,23 that are essentially repeated in paragraph 54 of the petition. These allegations are supported by the following documents:

"(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, supporting the factual positions of the petitioners, id., petitioners'

prior possession, private respondents' intrusion and the illegal acts committed by the private respondents and their security guards on 19 April 2006;

(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal acts (firing of guns, etc.) committed by a security guard against minors - descendants of Antonio Tapuz;

(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially corroborating Nemia's affidavit;

(d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod regarding the incident of petitioners' intrusion into the disputed land;

(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis, narrating the altercation between the Tapuz family and the security guards of the private respondents, including the gun-poking and shooting incident involving one of the security guards;

(f) Certification issued by Police Officer Christopher R. Mendoza, narrating that a house owned by Josiel Tapuz, Jr., rented by a certain Jorge Buenavente, was accidentally burned by a fire."

On the whole, what is clear from these statements - both sworn and unsworn - is the overriding involvement of property issues as the petition traces its roots to questions of physical possession of the property disputed by the private parties. If at all, issues relating to the right to life or to liberty can hardly be discerned except to the extent that the occurrence of past violence has been alleged. The right to security, on the other hand, is alleged only to the extent of the threats and harassments implied from the presence of "armed men bare to the waist" and the alleged pointing and firing of weapons. Notably, none of the supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or is continuing.

A closer look at the statements shows that at least two of them - the statements of Nemia Carreon y Tapuz and Melanie Tapuz are practically identical and unsworn. The Certification by Police Officer Jackson Jauod, on the other hand, simply narrates what had been reported by one Danny Tapuz y Masangkay, and even mentions that the burning of two residential houses was "accidental."

As against these allegations are the cited MCTC factual findings in its decision in the forcible entry case which rejected all the petitioners' factual claims. These findings are significantly complete and detailed, as they were made under a full-blown judicial process, i.e., after examination and evaluation of the contending parties' positions, evidence and arguments and based on the report of a court-appointed commissioner.

We preliminarily examine these conflicting factual positions under the backdrop of a dispute (with incidents giving rise to allegations of violence or threat thereof) that was brought to and ruled upon by the MCTC; subsequently brought to the RTC on an appeal that is still pending; still much later brought to the appellate court without conclusive results; and then brought to us on interlocutory incidents involving a plea for the issuance of the writ of amparo that, if decided as the petitioners advocate, may render the pending RTC appeal moot.

Under these legal and factual situations, we are far from satisfied with the prima facie existence of the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-relatedand focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo.

Nor do we believe it appropriate at this time to disturb the MCTC findings, as our action may carry the unintended effect, not only of reversing the MCTC ruling independently of the appeal to the RTC that is now in

place, but also of nullifying the ongoing appeal process. Such effect, though unintended, will obviously wreak havoc on the orderly administration of justice, an overriding goal that the Rule on the Writ of Amparo does not intend to weaken or negate.

Separately from these considerations, we cannot fail but consider too at this point the indicators, clear and patent to us, that the petitioners' present recourse via the remedy of the writ of amparo is a mere subterfuge to negate the assailed orders that the petitioners sought and failed to nullify before the appellate court because of the use of an improper remedial measure. We discern this from the petitioners' misrepresentations pointed out above; from their obvious act of forum shopping; and from the recourse itself to the extraordinary remedies of the writs of certiorari and amparo based on grounds that are far from forthright and sufficiently compelling. To be sure, when recourses in the ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve as a curative substitute. The writ of amparo, particularly, should not issue when applied for as a substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes - the situation obtaining in the present case.

While we say all these, we note too that the Rule on the Writ of Amparo provides for rules on the institution of separate actions,24 for the effect of earlier-filed criminal actions,25 and for the consolidation of petitions for the issuance of a writ of amparo with a subsequently filed criminal and civil action.26 These rules were adopted to promote an orderly procedure for dealing with petitions for the issuance of the writ of amparo when the parties resort to other parallel recourses.

Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or security - the personalconcern that the writ is intended to protect - is immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.

The Writ of Habeas Data

Section 6 of the Rule on the Writ of Habeas Data requires the following material allegations of ultimate facts in a petition for the issuance of a writ of habeas data:

"(a) The personal circumstances of the petitioner and the respondent;

(b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party;

(c) The actions and recourses taken by the petitioner to secure the data or information;

(d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent.

In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable."

Support for the habeas data aspect of the present petition only alleges that:

"1. [ … ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the PNP may release the report on the burning of the homes of the petitioners and the acts of violence employed against them by the private respondents, furnishing the Court and the petitioners with copy of the same;

[ … ]

66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine National Police [PNP] to produce the police report pertaining to the burning of the houses of the petitioners in the land in dispute and likewise the investigation report if an investigation was conducted by the PNP."

These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum, thus rendering the petition fatally deficient. Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more than the "fishing expedition" that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order.

WHEREFORE, premises considered, we hereby DISMISS the present petition OUTRIGHT for deficiencies of form and substance patent from its body and attachments.

SO ORDERED.